Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Central Information Commission rejected the Right to Information (RTI) appeal requesting for the record of raw data (laboratory data) for a research paper entitled “Assessment of the concentration, distribution, and health risk of organochlorine pesticides in Momordica Charantia grown in Periurban region of Delhi, India” from the Jawaharlal Nehru University (JNU). The appellant, Archana Nair, was working with Crop Care Federation of India (CCFI), an entity consisting of leading pesticide manufacturers. The appeal was filed after she failed to get a satisfactory response from the University which reasoned that they could not provide data due to an embargo imposed by the Academic Council against access to the research paper for three years from the date of submission in order to secure the intellectual property rights of the scholar. The University lost on this ground as the Commission held that access to the paper was important under freedom of expression. However, the Commission observed that the RTI applications were motivated by the interests of pesticide manufactures and hence the requests were not to “secure access to information but to frighten the research itself”. The Commission refused to permit misuse of RTI as a means of SLAPP to silence critiques and researchers and held that, “freedom of speech is guaranteed to every citizen to express their opinions, studies and researches or experiments”.
The appellant, Archana Nair, filed Right to Information (RTI) applications to the Jawaharlal Nehru University, the respondents, to get entire records of raw data (laboratory data) for a research paper entitled “Assessment of the concentration, distribution, and health risk of organochlorine pesticides in Momordica Charantia grown in Periurban region of Delhi, India” [p. 2-4]. This research paper claimed that, “the Indian vegetables have residues of 20 different pesticides which had been banned 20 to 30 years ago thereby implying the continuous illegal production, sale and use of those pesticides in India”.
Earlier, the appellant along with her co-petitioner, Crop Care Federation of India (CCFI), an entity consisting of leading pesticide manufacturers, had filed a case in the Delhi High Court regarding the same issue. (See M/S. Crop Care Federation of India v. Rajasthan Patrika (PVT) LTD.) The appellant had asked for copies of laboratory log books and chromatograms, details of method of analysis of samples, addresses of all the chemists who analysed samples of pesticide residues etc [p. 5]. But the court had declined to direct the respondents to provide raw data by the way of the writ of proceedings [p. 1-3].
After Delhi High Court rejected it, she chose the route of RTI [p. 4]. However, she didn’t receive any reply to her RTI application, after which she lodged a complaint with the Central Public Information Commission (CPIO) on September 4, 2015 [p. 6]. She received a reply on September 17, 2015 but filed another appeal on October 9, 2015, which was dismissed by the Authority as all possible information had already been furnished [p. 10]. The rest of the information was denied as it formed part of the unpublished Ph.D. thesis and could not be given as Jawaharlal Nehru University (JNU) followed the policy of restricted access of Ph.D. theses under the UGC guideline of “Minimum Standards and Procedure for award of M.Phil/Ph.D. degree Regulation, 2009” [p. 11]. As per the policy, JNU contended that it was under obligation not to disclose the contents of the Ph.D. research for a period of up to three years after award of the degree to the scholars. The Ph.D. was not awarded as on first appeal [p. 12].
M. Sridhar Acharyulu of the Central Information Commission delivered this decision. The main issue for consideration was whether the appellant could access the information which formed part of the PhD thesis of the research scholar.
First, the University contended that they could not provide information to the RTI applicant as the Academic Council of the Jawaharlal Nehru University (JNU) had passed a resolution which imposed a condition that the thesis could not be accessed for three years from the date of submission to secure intellectual property rights of the scholar by preventing breach of the copyright [p. 16]. The Commission ruled that although access to the information could be regulated, it could not be denied. The Commission noted that a copy of the thesis was expected in the library for general access to scholars and students, where anyone could reach the library and read; while the permission for reading needed to be taken, but that did not mean it could be denied. Therefore, according to the Commission, the resolution which kept an embargo for three years was overridden by section 22 of Right to Information Act, 2009 and therefore, the University was required to amend the resolution in consonance with the RTI Act [p. 17].
Second, the University argued that the access was denied because of IPR or copyright. However, the Commission held that the Copyright Act provided fair use exceptions to the copyright and did not give any monopoly over the “knowledge”. The Commission ruled that the embargo of one or three years on access to a Ph.D. thesis or any other research conclusion or dissertation was an antithesis to the aims and objectives of Copyright legislation and the IPR regime and a breach of UGC Regulation 2009, besides being a gross violation of freedom of speech and expression under Article 19(1) of the Indian Constitution. The Commission noted that “having access to thesis for reading it, taking notes about, quoting a relevant portion for literary review or critical analysis is not copyright violation. Anyone with intellectual honesty can challenge the conclusions and develop a counter thesis. Research should help further research”. The Commission further required the University to make necessary changes in their regulation in consonance with section 19(8)(iv) of the RTI Act and freedom of speech and expression, and therefore provide access to such dissertation without any embargos, facilitate inspection and the taking of notes, always of course preventing anyone from taking a copy of entire thesis [p. 18].
While the appellant succeeded in both the above mentioned claims, the Commission questioned the actions of the appellant and whether her demand for data reflected a “hidden agenda of assault of agrochemical industries on the academic research” and whether that would “demoralize the researchers and encourage abuse of RTI by commercially interested agents representing themselves as information seekers” [p. 20].
At this point, the Commission member noted that the ‘questions’ and ‘answers’ requesting raw material of the researcher asked by the appellants could not fall within the ambit of definition of “information” under the RTI Act [p. 22]. The Commission noted that the intention behind the RTI applications was not to “secure access to information but to frighten the research itself”. The Commission observed that the University was not under any “duty to answer any cross examination on her conclusions either to manufacturers of pesticides or their agents” as the researcher had already been evaluated by experts, subject to viva voce, and therefore, should not be subjected to any further scrutiny [p. 22].
Reliance was place on other decisions of the Commission in which it was ruled that, “all research data generated by an organization known to be devoted to research and experimentation is the intellectual property of that organization and it cannot be allowed to be disclosed under the RTI Act. Section 8(1)(d) of the RTI Act clearly bars disclosure of such information. Commission is fully in agreement with the respondents that no person can be allowed to use the provisions of the RTI Act to access available data about experimental design and statistics/data generated through a research project. If allowed to be disclosed this has the capacity to irreparably damage the interests of the research institution” [p. 22].
To further decipher the intentions of the appellants and Crop Care Federation of India (CCFI), the Commission noted that they had earlier filed petition against Rajasthan Patrika, which published articles about ill-effects of pesticide usage, however was rejected by the Court as baseless and deemed as a SLAPP lawsuit intended to intimidate the critics [p. 24].
The Commission therefore, opined that the same trade body, in the instant case, was using RTI as a means of SLAPP to threaten the research and frighten the scholars [p. 26]. The Commission observed that, “this kind of misuse of RTI is increasing…..they know that such SLAPP of RTI will not succeed, but still they use as it would put them to trouble of passing through the trauma of trial and divert the financial resources. A young educated journalist represented vested interests of traders in this case”.
Lastly, while concluding that the Commission could not permit misuse of RTI to silence critiques and researchers, it made important observations, “the RTI Act is meant to promote public interest and public-interest-based research. It cannot encourage the attempt to use the RTI to raise such harassing questions, frightening the researchers, demoralizing the research supervisors and prevent the JN University from its fearless pursuit of independent research. Universities need to be shielded in public interest from such motivated attacks. Freedom of speech is guaranteed to every citizen to express their opinions, studies and researches or experiments. Even if some of their findings are wrong, it is not a crime. Anyone is free to come up with correct prepositions. That freedom is also guaranteed” [p. 27] .
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Commission expanded freedom of expression in two ways: first by noting that the embargo of one or three years on access to a Ph.D. thesis or any other research conclusion or dissertation was a gross violation of freedom of speech and expression under Article 19(1) of the Indian Constitution and therefore, access to such dissertations should be provided without any unreasonable embargo: second by noting that the Right to Information (RTI) applications should not be misused as a Strategic Action against Public Participation (SLAPP) suit to silence the critiques and researchers as “freedom of speech is guaranteed to every citizen to express their opinions, studies and researches or experiments. Even if some of their findings are wrong, it is not a crime. Anyone is free to come up with correct propositions. That freedom is also guaranteed.”
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