CENTRAL INFORMATION COMMISSION Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi

Transcription

1 CENTRAL INFORMATION COMMISSION Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi File No.CIC/LS/A/2009/ Appellant : Shri Sudhir Vohra Public Authority : Delhi Metro Rail Corporation Date of Hearing : Date of Decision : The Single Bench of Shri M.L. Sharma, IC initially heard this matter and the proceedings thereof are reproduced below :- FACTS : By his letter of , the appellant had sought the following information :- The Cantilevered bracket of Metro Pillar Number 67, as described above, collapsed on the 12 th July, 2009, as reported in various media. INFORMATION REQUESTED : 1 All structural drawings of both the pile foundation and the superstructure, including all steel reinforcement details, foundation details, engineering calculations and SOIL Tests. I would like to inspect all files and File notings relevant to the above captioned subject. I draw this right to inspect your files from the office memo no. 1/20/2009 IR dated 23 rd June, 2009 issued by the Competent Authority dealing with RTI Act. As such, please let me know the time and date convenient for you to allow me to inspect the relevant files. 2. To this, the DMRC had replied as under :- Kindly note that the information you have sought, i.e. all structural drawings of both the pile foundation and the superstructure, including all steel reinforcement details, foundation details, engineering calculations along with the file inspection are intellectual property of DMRC as considerable cost and time have been spent in preparing them. Hence, exempted from disclosure under section 8 (1) (d) of the RTI Act. 3. Dissatisfied with the decision of DMRC, the appellant had filed the present appeal dated 19 th August, 2009 before the Commission, seeking the following relief :- 1. Order the DMRC to issue all the information requested by me. 1

2 2. Ensure that such order be applicable to other structures for which I have filed similar RTI applications on the same Metro Line, and 3. Any other order which the Commission may deem fit to be passed. 4. Heard on Appellant present. The public authority is represented by Shri Kumar Keshav, Director (Projects); Shri N.P. Singh, GM (Legal) & Shri Anuj Dayal, PRO. 5. It is the principal submission of the appellant that as a patriotic citizen, he is concerned about the safety of the MRTS being constructed by DMRC. Collapse of pillar No. 67 even without the dynamic load of the rail system has caused him dismay and raised doubts about the efficacy of the structures being erected by DMRC. He would also plead that denial of information on the ground that the drawings/designs in question are intellectual property of DMRC is not correct in as much as for claiming this exemption under the relevant law, the public authority has to establish that it has applied for the registration of the intellectual property in question with the competent authority, as provided in the relevant law or, prove that such registration has already been made by the competent authority. Thus, according to him, denial of information under clause (d) of section 8 (1) of the RTI Act is not justified in the facts and circumstances of the case. 6. The second limb of his submission is that due to the collapse of Pillar No. 67 on , 06 people died and some others sustained injuries. Obliviously, the pillar had a faulty design because of which it collapsed. Hence, it would be in the larger public interest to disclose the information sought by him. 7 Shri Keshav seeks adjournment to make detailed submissions and also to make a written representation in this behalf. The appellant has no objection to this. Hence, the matter is adjourned to at 1030 hrs. 8. As scheduled, the matter is called for hearing on at 1030 hrs. Appellant present. The public authority is represented by Shri Chakravarti, Asstt. Manager (APIO) & Ms. Kumkum Mishra, Asstt. Law Officer. Shri Chakravarti submits a written representation signed by Shri Kumar Keshav, Director (Projects) (AA). The operative para thereof is reproduced below :- The above said matter is listed for hearing on at AM wherein the respondent applicant has to address the issue relating to intellectual property exempted under the provisions of RTI Act. Since the issue is of serious nature and having an impact on future RTI applications, we are seeking an expert opinion in the matter. It is submitted that at least one week s time may be granted to address the issues pertaining to this case before your honour. 2

3 9. In view of the above, the matter is adjourned to at 1030 hrs. 10 The matter is called for hearing on The following are present:- For DMRC Shri Kumar Keshav, Director/Projects (AA) Shri Anuj Dayal, CPRO (PIO) Shri N.P. Singh, GM (Legal) Shri Rajan Kataria, CE/Design Shri S.K. Gupta, CPM/SE Shri Tarun Johri, Advocate Shri Ankur Gupta, Advocate For Appellant Shri Sudhir Vohra Ms. Kriti Gulati Ms Nivedita Khandekar 11 Shri Kumar Keshav, Director (Projects), DMRC files a written representation which is extracted below in extenso :- 1. That the instant Appeal as has been filed by the appellant is not maintainable and the same is liable to be dismissed. It is submitted that disclosure of the structural design including reinforcement details, engineering calculations for the Metro pillar no. 67 and any other design specifications to the general public as well as to the appellant would directly affect the safety and security of the Metro Rail system and thus would impinge upon the sovereignty and integrity of India as also the security and strategic interest of the State and further may lead to incitement of an offence. For the said security and safety reasons the Respondent is not obliged under the provisions of Section 8 (1) (a) of the Right to Information Act, 2005, ( Act ) from disclosing or giving any copy of the structural designs and other designs and calculations of Metro pillar no. 67 to the appellant. 2. The DMRC on regular basis receives various security advisories from the law enforcement authorities in respect of the safety and security of the Metro System, which indicates that the Metro system is high on the list of the sensitive structures, which are susceptible to security threats. In this background disclosure of the structural design and other technical details and calculations of Metro pillar no. 67 would be an open invitation to any anti national person to have inside knowledge of the design of any important structure of DMRC, and would thus directly compromise the safety of the other similar structures which are existing on the Metro System. It is pertinent to mention that the same structural design has been replicated in about 08 other similar structures, whose 3

4 safety would be compromised on the said disclosure of technical details and structural designs to the appellant herein. 3. That the instant appeal is not maintainable and the same is liable to be dismissed in view of the exemption from disclosure as provided under Section 8 (1) (d) of the Act, which protects the information pertaining to the commercial confidence, trade secrets or the intellectual property. The relevant provisions of the Copyright Act, 1957 are reproduced herein :- Section 2. b) work of architecture means any building or structure having an artistic character or design, or any model for such building or structure; c) artistic work means :- (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) a work of architecture; and (iii) any other work of artistic craftsmanship; Section 13(5) of the Copyright Act, 1957 states : Section 13. Works in which copyright subsists : (5) In the case of a work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction. It is thus apparent that the Structural design and the technical calculations/drawings of Metro Pillar No. 67, form part of the work of architecture which are entitled to Copyright protection under the Copyright Act, The DMRC being the owner of the Structural Design and the technical calculations/drawings of the Metro Pillar No. 67, is also the owner of the Copyright in the said designs, calculations and drawings and is thus the owner of the Intellectual Property subsisting in such designs, calculations and drawings. In view of the above facts and the circumstances, it is stated that the not only the answering Respondent has a right to protect its designs i.e. intellectual property or the copyright from disclosure under Section 8(1) (d) of the RTI Act as also under the Copyright Act, 1957 and also under the common law. 4. That the instant Appeal is not maintainable and the same is liable to be dismissed, as the disclosure of the structural design including reinforcement details of Metro Pillar No. 67, which are a part of the answering Respondent s intellectual property and is protected under the Copyright Act and would be against the commercial interest of the DMRC. It is stated that the DMRC has generated designing and other technical expertise in construction of Metro Systems, of which it is the Intellectual property owner. It is stated that the DMRC has engaged itself in rendering consultancy services including that relating to the designs and structural formations. The DMRC has also been approached by various 4

5 countries around the world, to provide them the consultancy services as well as to set out the design parameters or the standards with respect to the implementation or the development of the Metro Rail Projects in such countries. It is stated that, any disclosure of the structural design including the reinforcement details etc may lead to divestment of the Intellectual Property rights of DMRC and would thus cause irreparable loss to the DMRC. Any such information as has been asked for by the Appellant can be put to use against the interest of the DMRC by the other business competitors of DMRC, as in such a case all expertise or the relevant designs of the piers, cantilever, structural designs etc would be known to such parties against the wishes of the DMRC. 5. That the instant Appeal is not maintainable and the same is liable to be dismissed in view of he exemption or protection from disclosure as has been asked for by the Appellant may impede the process of investigation or apprehension or prosecution of offenders. It is stated that the after incident dated when the Metro Pillar No. 67 got collapsed, the Assistant Commissioner of Police Inter State Cell, Crime Branch, Chanakaya Puri, New Delhi had registered an F.I.R. being F.I.R. No. 344/2009 under Section 287/337/338/304A Indian Penal Code, at P.S. Amar Colony, New Delhi. It is stated that the while conducting the investigation under the relevant provisions of the Indian Penal Code, the Crime Branch vide its letter No. 690-ACP/ISC dated had give a questionnaire as had been raised by the Indian Institute of Technology, Roorkee, to the answering Respondent asking it to give a brief reply on the issues raised under the said questionnaire along with relevant documents. The Respondent had vide its leter dated submitted a brief reply to the said questionnaire stating out each and every fact with respect to structural design, cantilever structures, tender drawings, design basis report, design calculations and further enclosed a copy of the above noted designs or drawings along with the said reply. It is stated that as the Police/crime Branch is seized of the matter and conducting its investigation, the aforesaid documents namely the copy of the above noted designs or drawings and other details of Metro Pillar No. 67, now forms part of the police record under the above noted F.I.R. and are in fact case property. The disclosure of any such information to the general public or to the appellant, as asked for, when an Police investigation in respect of the same is pending would impede the process of investigation or apprehension or prosecution or offenders and therefore, the same is liable to be exempted from any disclosure under the provisions of the 8(1) (h) of the Act. 12 It is the submission of Advocate Tarun Johri that the information sought by the appellant is exempted from disclosure in terms of section 8 (1) (a) of the RTI Act. It is his say that the design of Pillar No. 67 is an Engineering Design which has certain sensitive/susceptible points such as shear key/shear bar etc. Several other pillars constructed by DMRC are 5

6 nothing but replication of this pillar. 8 to 10 lakh passengers travel on Delhi Metro everyday. If the details of the design/drawing are disclosed to the appellant or the public at large, there is a possibility of anti-national elements causing sabotage to the structures at the vulneralable points. It is for this reason that even photography of certain sensitive structures, such as bridges, etc. is prohibited. Thus, disclosure of the design/drawing in question may be prejudicial to the safety and security of the travelling public and would impinge on the sovereignty and integrity of India as also the security and the strategic interests of the State. 13 He would further submit that Pillar No. 67 is a civil structure and it is work of Architecture as defined in clause (b) of section 2 of the Copyright Act, It is also an artistic work as defined in clause (c) of section 2 of the said Act. The structural design and technical calculations/drawings of Pillar No. 67 form part of the work of Architecture which is entitled to protection under the Copyright Act. The DMRC is the owner of the structural design and the technical calculations/drawings of Pillar No. 67 and the intellectual property in such designs, calculations, and drawings subsists in DMRC. Hence, the information sought is exempted from disclosure u/s 8 (1) (d) of the RTI Act. He would, however, clarify that the intellectual property subsists only in the artistic character and design and shall not extend to processes or methods of construction. 14 He would further submit that registration of copy right is not a condition precedent for seeking protection of the Copyright Act, He has drawn the Commission s attention to para 33 of the Hon ble Delhi High Court order dated in Rajesh Masrani Vs Tahilaiani Design Pvt Ltd in this connection which is extracted below :- 33. A person has an inherent copyright in an original composition or compilation with the necessity of its registration. Satsant and Anr. v. Kiron Chandra Mukhopadhyay and Ors. MANU/WB/0114/1972 : AIR1972Cal533. Registration of the work under the Act is not compulsory and registration is not a condition precedent for maintaining a suit for damages for infringement of copyright. The safest test to determine whether or not there has been a violation of copyright is to find out if the reade, spectator or viewer after having read or seen both the works can get an impression that the impugned work or film is an imitation of the other. In the instant case, no prudent man who has seen the film and read the novel Alayazhi will come with an impression that the former is an imitation of the latter. R. Madhavan v. S.K. Nayar MANU/KE/0009/1988 : AIR1988Ker39. Registratio of such right under Section 44 of the Act is not a condition precedent for availing the remedy, such as suing for an injunction restraining infringement of the right, intended to provide for prima facie proof of the particulars regarding the right as stated in Section 48. Nav Sahitya Prakash and Ors. v. Anand Kumar and Ors. MANU/UP/0177/1981 : AIR 1981AII200. 6

7 15 Advocate Johri s further submission is that DMRC is a prestigious organization of the Govt. of India which has generated designing and other technical expertise in the construction of Metro system. The DMRC is running consultancy services, including those relating to design and structural formulations, within the country and also abroad. Any disclosure of the structural designs, including the reinforcement details, may lead to divestment of intellectual property rights of DMRC and would, thus, cause it irreparable commercial detriment. Further, disclosure of the designs may jeopardize the competitive edge of DMRC as a consultant. 16 He would also submit that the Delhi Police has registered a criminal case vide FIR No. 344/2009 u/s 287 / 337/338/304A of the Indian Penal Code at Police Station Amar Colony, New Delhi, and the matter presently is under investigation. Hence, information sought is exempted from disclosure under clause (h) of section 8 (1) of the RTI Act also. He has relied on the Hon ble Allahabad High Court judgement dated (Vikram Simon Vs State Information Commission, Uttar Pradesh) in this regard. 17 On the other hand, the appellant would submit that section 8 (1) (a) of the RTI Act is not attracted in the facts and circumstances of the case in as much as clause (a) bars disclosure of information affecting the sovereignty and integrity of India and the security and strategic interests of the State. Pillar No. 67 collapsed on resulting in the death of 06 persons. Several other Pillars, namely 33, 34, 39, 53, 54,56,57,60,65,66,68 and 69 have substandard construction and are being considered for retrofitting. The DMRC is thinking in terms of repairing/strengthening/ demolishing and rebuilding them. He is essentially concerned with the safety of the travelling public. Hence, disclosure of the structural design has no bearing on the sovereignty and integrity of India or the security and strategic interests of the State. 18 He would also submit that Pillar No. 67 is not the intellectual property of DMRC in that it is not a work of Architecture and, therefore, no copyright for design of this pillar can submit in law. He would also submit that exemption claim u/s 8 (1) (h) is also not relevant in the matter in hand. 19 However, the main point raised by the appellant is that disclosure of the design of the failed structure, that is, Pillar no. 67, has no buyers in the market and, therefore, the DMRC s argument that disclosure of the structural design is likely to cause it financial detriment is simply hypothetical 20 He would also submit that as the matter in hand involves the safety of the travelling public at large, it would be in the larger public interest to disclose the structural design of Pillar No. 67 so that it could be improved for preventing recurrence of such accidents/happenings. He has, thus, strongly pleaded for disclosure of the requested information. 7

8 21. There is no doubt that DMRC is a very prestigious project of the Govt. of India. It is also undisputable that it has won all round applause from the cross section of the society. However, the collapse of Pillar No. 67 resulting in 06 deaths and the urgent need for retrofitting 12 other pillars having similar design has somewhat shaken the confidence of the travelling public in the efficacy of the Metro system. In my opinion, the matter in hand raises an important question of law i.e. protection of the intellectual property rights vis-à-vis, the right of the people to know the design of the collapsed pillar under the RTI Act. This question has serious implications and ramifications for the DMRC as also for the travelling public. Hence, in my opinion, it would be expedient to refer this matter to a Full Bench to adjudicate on the following issues :- (i) whether the structural design of Pillar No. 67, is intellectual property of DMRC under the Copyright Act, 1957; (ii) whether the disclosure of structural design and reinforcement details of this Pillar are barred under clauses (a), (d) and (g) of section 8(1) of the RTI Act; & (iii) whether the public interest in disclosure outweighs the harm to the protected interests in the matter in hand. 22. Shri Sharma had referred the matter to the Chief Information Commissioner to constitute Full Bench to adjudicate on the issues enumerated in the preceding para. 23. Pursuant thereto, the Chief Information Commissioner had constituted a Full Bench of the following :- 1. Shri Wajahat Habibullah, Chief Information Commissioner; 2. Shri M.L. Sharma, Information Commissioner; 3. Shri Shailesh Gandhi, Information Commissioner; 4. Smt Annapurna Dixit, Information Commissioner; & 5. Smt Sushma Singh, Information Commissioner. 24. As scheduled, the matter was heard on The following were present :- DMRC 1. Advocate Shri Tarun Johri 2. Advocate Shri Ankur Gupta 3. Shri Kumar Keshav, Director (Project) 4. Shri N.P. Singh, GM (Legal) 5. Shri Anuj Dayal, PRO Appellant 1. Shri Sudhir Vohra 2. Ms Nivedita Khandekar 3. Shri Sabyasachi Mohanty 8

9 25. The first and foremost submission of Advocate Johri is that investigation into the accident that occurred in respect of Pillar 67 is being conducted by the Delhi Police and is not yet over and that disclosure of any information at this stage would impede the process of investigation. He has submitted a copy of letter dated of Shri Rajinder Bakshi, ACP, ISC, Crime Branch, New Delhi, addressed to Shri R.N. Verma, Engineer (Plg), DMRC, to say that disclosure of requisite information may hamper the investigation. The relevant portion of this letter is extracted below :- Sub :- Case No. 344, 345/09 PS Amar Colony. Reg :- Investigation of the accident took place at Zamrudpur on Reg :- Information under Right to Information Act, 2005 Case No; 995 (Mr. Anup Kumar resident of A-212, Sarojini Nagar, New Delhi-23) Ref DMRCIl-6/B, C dated The above mentioned cases are pending investigation and disclosure of the requisite information may hamper the investigation, hence the requisite information should not be furnished to the applicant under 8 (h) RTI Act. 26. Advocate Johri has also cited the following 03 decisions of this Commission to buttress his case viz :- (i) File No CIC/LS/A/2009/00685 dated (Sunil Gupta Vs DDA) wherein relying on the judgment of Hon ble Delhi High Court in Surinder Pal Singh Vs UOI, the Commission has held that no information is disclosable when the matter is under prosecution in terms of section 8 (1) (h) of the RTI Act. (ii) File No CIC/SM/A/2009/000399/LS dated (Prem Singh Vs CGDA) wherein a similar view was taken by the Commission, relying on the judgment of the Hon ble Delhi High Court in an under trial matter. (iii) File No CIC/WB/A/2007/01349/LS dated (Sharmila Seth Vs DMRC) wherein the question, before the Commission was whether civil construction drawings of the East of Kailash station could be disclosed to the appellant. The Commission had held as follows :- 7. As mentioned herein above, the information in regard to point Nos. 2, 3, 4 & 5 has already been disclosed to the appellant. As regards point No. 1 quoted herein above, I find no infirmity in decisions of CPIO/AA as disclosure of construction drawings would violate the law relating to the Intellectual Property Rights. I also find merit in the submission of Shri Anand that disclosure of drawings may impinge on the security of the travelling public. 27. His further submission is that the structural and engineering drawings of both the pile foundation and super structure of Pillar No 67 are work of Architecture as defined in section 2 (b) of the Copyright Act, 1957, and further, these are artistic work in terms of section 2 (c) of the 9

10 said Act. He would submit that the design of the pillar is the intellectual property of DMRC which is exempted from disclosure under clause (d) of section 8 (1) of the RTI Act. Referring to sub sections (1) & (5) of section 13 of the Copyright Act, 1957, he would submit that copyright on the information requested for by the appellant subsists in DMRC and in this view of the matter, it is exempted from disclosure in terms of clause (d) of section 8 (1). 28. His further argument is that DMRC is a prestigious project of Central Government and the Government of Delhi. It is being used by lacs of people everyday and the network is consistently expanding overtime. 50% of the equity is held by the Central Government and another 50% by the Government of Delhi. DMRC, therefore, qualifies to be State in terms of Article 12 of the Constitution. Drawing the Commission s attention to the deteriorating security scenario prevailing in our neighborhood as also within the country, particularly in the context of 26/11 incident in Mumbai, he would submit that if the requisite information is disclosed, the details of the design of Delhi Metro may fall into the hands of anti national elements, making it vulnerable to sabotage. Thus, according to him, disclosure of the requested information would be prejudicial to the sovereignty and integrity of India and its security and strategic interests etc. 29. It is, thus, his forceful submission that information requested for by the appellant can not be disclosed in terms of clauses (a), (d) & (h) of section 8 (1) of the RTI Act. 30. On the other hand, Appellant Shri Sudhir Vohra assails the grounds taken by DMRC in denying him the requisite information. First and foremost, he draws the Commission s attention to sub section (5) of section 13 of the Copyright Act which says that copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction (emphasis supplied). He would argue that even if it is assumed that Pillar No 67 is the intellectual property of DMRC, its artistic character and design is protected under the Copyright Act but the processes and methods involved in the construction of pillar are not protected under this Act. It is his fervent plea that he is seeking information only about the construction processes and methods and denial thereof is violative of the RTI Act. 31. He would further submit that pillar No 67 is not the only Pillar which had a defective design resulting in its collapse. There are a large number of other pillars which are tottering due to defective design. DMRC is trying to cover up its mistake by hook and by crook. He would plead that Metro system affects the safety and security of the travelling public and the people have a right to know asto what kind of design has gone into the construction of system, including the pillars. 10

11 32. He also shows certain unsigned documents to the Commission relating to the construction of Metro system. According to him, apart from faulty design, no proper checks were exercised by DMRC Management resulting in failed and tottering structures. He would also mention that at a particular point of time, there were separate designers, separate builders and separate checkers but thereafter all these functions were concentrated into the hands of one entity, resulting in defective design and inefficient execution of works. 33. The appellant also challenges the application of Copyright Act in the matter in hand and even if it is held that the Copyright Act is applicable, the imperatives of public safety demand that the design of the failed structure is placed in public domain. Shri Vohra would also submit that through various RTI applications, he has already got details regarding foundation and soil test reports etc and, therefore, he fails to understand why the remaining information is being denied to him. He, thus, makes a strong case for setting aside the decisions of CPIO and AA and solicits directions of the Commission to disclose the requested information. 34. To this, Advocate Johri would respond that section 13 (5) of Copyright Act, has not been correctly interpreted by the appellant. According to him, processes and methods of construction, as referred to in section 13 (5), do not merely refer to the mixture of steel, cement and aggregate in a pre-fabricated or in situ environment. According to him, the design is totally different from the methods of construction. While the methods of construction are well known, design is unique to DMRC which is its intellectual property and, therefore, exempted form disclosure u/s 8 (1) (d) of the RTI Act. 35. After the conclusion of hearing the Commission directed the parties to file their written submissions, if any, in two weeks time. 36. Shri Johri and Associates appearing for DMRC have sent a written representation dated to the Commission which is taken on record wherein it has been pleaded that DMRC is a State under Article 12 of the Constitution of India, as held by the Supreme Court in Mysore Papers Mills Ltd Vs Mysore Papers Mills Officer s Association [(2002) 2 Supreme Court Cases 167] and in International Airport Authority case [(1979) 3 SCC 489]. Another submission made therein is that the entire equity share capital of DMRC is held by Govt of India and the Govt of Delhi in ratio. Annexed with the note is the Memorandum and Articles of Associations of Delhi Metro Rail Corporation Ltd. He has also enclosed judgment dated of the High Court of Bomaby (Indiana Gratings Private Ltd & Anrs Vs Anand Udyag Fabricators Pvt Ltd) to establish that the pillar constructed by DMRC is covered under the Copy Right Act. 11

12 37. It may be mention to point out that DMRC had submitted a copy of the letter dated of ACP of the Crime Branch addressed to DMRC wherein it was stated that requisite information should not be furnished to the applicant u/s 8 (1) (h) of the RTI Act. The Commission had decided to seek opinion of the higher authorities of the Crime Branch regarding the disclosability of the requested information. Hence, a letter dated was addressed to the Joint Commissioner of Police Crime, New Delhi by the Registry of the Commission asking him to let the Commission know as to how disclosure of structural design at this stage may impede the process of investigation in terms of section 8 (1) (h) of the RTI Act. Para 02 of the Commission s letter is extracted below :- 2. The plea taken by the DMRC is that disclosure of structural design etc at this stage would impede the process of investigation, which is substantially based on the ACP s letter. You will please appreciate that investigation in this matter is highly technical in nature due to high engineering aspects involved concerning the collapse of Pillar No 67 and, presumably the investigating agency would have consulted technical experts in this regard. The Commission wishes to know how disclosure of structural designs etc at this stage may impede the process of investigation in terms of section 8 (1) (h) of the RTI Act, as stated by ACP Shri Bakshi in his letter referred to above. 38. The Joint Commissioner of Police, Crime, New Delhi, responded to it vide letter dated wherein he has opined as follows :- Although the report of team of IIT Roorkee is still awaited, now it is felt that the release of the structural design of both pile foundation and super structure including all steel re-enforcement details, foundation details, engineering calculation and soil test in relation to pillar No 67 at this stage to the applicant in Reference No 995 will not hamper the process of investigation as the same and related details have already been supplied to the team of IIT Roorkee for their perusal and expert opinion. Hence, from our angle, we do not have objection to the supply of this information by the DMRC. In short, the Investigating Agency has no objection to the disclosure of the requisite information at this stage. 39. Now, we take up the issues one by one :- Issue No On the basis of material on record and after hearing the parties the Commission is of the opinion that structural and engineering design of Pillar No 67 is the intellectual property of DMRC and is covered under the Copyright Act, However, DMRC is a State under Article 12 of the Constitution of India, as claimed by Adv Johri. The question before the Commission is whether the State can claim exemption from disclosure on the ground of a subsisting copyright. Section 9 of the RTI Act comes into play here. The same is extracted below :- 12

13 9. Without prejudice to the provisions of section 8, a Central Public Information Officer or a State Public Information Officer, as the case may be, may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State. A bare reading of the above would indicate that when disclosure of information involves any infringement of copyright subsisting in a person, then the requested information can be denied to the requester but the State can not deny information on this ground. As mentioned above, DMRC has been held to be a State and, therefore, it can not claim exemption from disclosure on this ground. Issue No, 2 & Advocate Johri has force fully pleaded that disclosure is barred from disclosure under clause (a) of the section 8 (1) on the ground that such disclosure would prejudicially affect the sovereignty and integrity of India etc. We are of the opinion that the case has been over stated and logic over-stretched. In our view, disclosure os structural design of Pillar No 67 can not be held to prejudicially affect the sovereignty and integrity of India or its security and strategic interests. Hence, in our view clause (a) is not attracted. Advocate Johri has also pleaded that clause (d) of section 8 (1) is attracted inasmuchas the information involves intellectual property of DMRC and further that disclosure of structural design of the pillar would harm DMRC s competitive position. The issue of intellectual property has been discussed in the proceeding paras. As regards the harm likely to be caused to the competitive position of DMRC by disclosure of requested information, in our opinion, there appears to be a grain of truth in this submission but the Commission needs to balance the interests of DMRC against the interests of the travelling public. We find merit in the submission of appellant that due to faulty design Pillar No 67 has collapsed 06 persons have lost their life. Several other tottering pillars have been retrofitted. Apparently, there is something wrong with the design of the pillars and this can not be disregarded as it impinges on the safety of the travelling public. We, therefore, hold that it will be in the larger public interest to disclose information requested for by the appellant. Advocate Johri has also pleaded that requested information is exempted from disclosure under clause (h) of section 8 (1) inasmuchas the matter is under police investigation etc. Suffice to say, no less an authority than the Head of Crime Branch of Delhi Police (Joint Commissioner of Police) has informed the Commission that the police investigation is not likely to be adversely affected by the disclosure of the requested information at this stage. We, therefore, find no merit in the submissions of Advocate Johri in this regard DECISION 42. From the above discussion, it clearly emerges that DMRC, being a State in terms of Article 12, can not claim exemption on the ground that the 13

14 engineering and structural design is its intellectual property and is covered under the Copy Right Act. In fact, section 09 of the RTI Act denies this entitlement. We are also of the opinion that information can not be denied under clauses (a) and (h) of the RTI Act for the reasons mentioned in the proceeding paras. Further, we are also of the opinion that disclosure of requested information is likely to be in the larger public interest inasmuchas placing the design of the failed structure in the public domain may spur the authorities to develop a safer design for providing optimal security to the travelling public. 43. Viewed in this light, the decisions of CPIO & AA are not sustainable in law and they are set aside. The CPIO is hereby directed to supply requested information to the appellant in 04 weeks time. 44. Reserved in the hearing this Decision is announced this eighteenth day of March Notice of this Decision be given free of cost to the parties. Sd/- (Sushma Singh) Information Commissioner Sd/- (Shailesh Gandhi) Information Commissioner Sd/- (Annapurna Dixit) Information Commissioner Sd/- (M.L. Sharma) Information Commissioner Sd/- (Wajahat Habibullah) Chief Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission. (K.L. Das) Assistant Registrar Address of parties :- 1. Shri Kumar Keshav Director (Project) Delhi Metro Rail Corporation, Metro Bhawan, Fire Brigade Lane, Barakhambe Road, New Delhi Shri Sudhir Vohara (Architect) No 28, Block-52, Chittaranjan Park, New Delhi