Over the last few years, I’ve personally filed several Right to Information (RTI) applications with several government offices and save for some initial hiccups at the Copyright Office, the responses that I received from most Central Government Offices have been quite satisfactory or in the case of the DIPP, exemplary. The one sore exception to this rule is the Council for Scientific & Industrial Research (CSIR). Image from here.
For some reason, CSIR fancies itself as a private corporation which cannot share ‘client’ information, despite the fact that it is funded by tax-payer’s money. Let me illustrate with some examples.
1. The First Instance:Earlier this year, Sumathi filed a RTI with CSIR asking for a copy of the MoU between the Patent Office & the CSIR for outsourcing of prior art searches. In response to her RTI application, CSIR responded with a refusal to provide a copy of the MoU. Let me quote their exact reply: “The MoU and the related information are client’s confidential documents and we do not know how much information the client wishes to put in public domain and how it would affect their working”. The client in question is the Patent Office! Both parties to the MoU are public bodies run on tax-payers money and both institutions are covered by the RTI Act. Any agreement between two public institutions automatically falls within the domain of the RTI Act. How difficult is it to understand such a fundamental concept? At the end it was the Patent Office which gave us a copy of the MoU.
2. The Second Instance: More recently, I had filed a RTI application asking CSIR for information on how much money they had spent on patenting their inventions and how much money they had earned in revenues from licensing their patents. While CSIR disclosed the amount of money that they had spent on patenting, they refused to disclose their revenues from the licensing of their patents. This denial was made on two grounds:
(i) The information sought was confidential and that disclosure of such information would affect the competitive position of third parties.
(ii) The information sought was not maintained by CSIR HQs and that I was required to apply individually to each of CSIR 39 odd laboratories.
A. Reading between the lines: At this juncture, it is necessary to read between the lines of the two grounds of denial. If CSIR HQ did not have the information they could have just transferred the applications to their subsidiaries BUT instead they first came to a conclusion that all information pertaining to the terms of the licence was confidential, thereby ensuring that none of the 39 laboratories would share any information with me. Then, in contravention to Section 6(3) of the RTI Act (which requires a ‘public authority’ to transfer applications to the relevant public authority which has the necessary information) they cited a DOPT circular which allegedly does not require them to transfer the RTI applications to all their subsidiary labs. The underlying objective therefore was to make me file 39 different RTI applications with each of the labs, then receive 39 different denials of information from all 39 CPIOs because the CSIR HQs had already deemed the information to be confidential. After receiving these 39 denials, I would have to send out another 39 appeals. In short they wanted to make sure that I would not get any information.
What makes this entire reply preposterous is that CSIR has completely failed to apply their minds to the facts at hand. I explain in detail below:
B. Examining the confidentiality argument: Let’s take the ‘confidentiality’ argument first. As you may all know under Sections 68 & 69 of the Patents Act, 1970all patent licensing agreements have to be registered in the ‘Patents Register’ and as per Section 72 of the Patents Act, 1970 the ‘Patents Register’ is open to public inspection. There is simply no question of a patent assignment agreement being confidential in India.
Irrespective of the Patents Act, 1970, the point remains that CSIR is a public funded body and they cannot deny information on the grounds that it would harm the competitive position of third parties. This Section 8(1)(d) exception used by CSIR is for situations where revenue or other administrative departments are asked to disclose information pertaining to third parties; which information was submitted to the public authority in pursuance of the law. This exception cannot be used by public authorities to deny information relating to their own commercial dealings with private parties. At this rate almost every govt. department can deny information relating to their dealings with private parties thereby subverting the entire intention of the RTI Act. If this was the position of law, Subramanian Swamy would have never got any of the 2G scam information under the RTI Act because all the information pertained to the competitive position of third parties.
C. The direction to approach 39 different laboratories: This argument is particularly disturbing and there are several obvious flaws in this argument. I’ll list them below:
(i) Each and every patent granted to CSIR is in the name of CSIR and not individual labs. The logically corollary of this simple fact is that there must be somebody called CSIR which has information on how their patents are licensed. However when one applies to this CSIR body, they claim they don’t have any information and that one should apply to 39 different laboratories despite the fact that these 39 different laboratories are not the owners of the patents. Why in God’s name should I request information from entities who do not own any of these patents? It just doesn’t make any sense to me.
(ii) CSIR is a ‘society’ incorporated under the Societies Registration Act, 1860. The bye-laws of CSIR are available on the NCL website. All the 39 different laboratories, under CSIR, where setup by CSIR with grants and although each one of them may operate autonomously, they are accountable to CSIR. It does not appear as if the 39 different laboratories have any separate legal identities and this is probably the reason that all the patents are filed in the name of CSIR and not individual laboratories. Further, Central Government funding, sanctioned by Parliament, appears to be provided only to CSIR, which then distributes the grants to each of the 39 labs under it. Now as per Article 68 of the Bye-laws, CSIR is required to maintain accounts and audits and present the same to Parliament on a yearly basis. This means that CSIR necessarily has to keep an account of all its 39 laboratories because it is the body disbursing funds to these laboratories. If CSIR was maintaining its accounts, there is no question of not knowing of any patent licensing deals entered into by its subsidiary labs. CSIR would therefore have to know about this information, especially when CSIR was able to tell us how much money was spent in securing patents for all its information. Why then does CSIR ask me to apply to each of the 39 laboratories?
(iii) As per Article 66 of CSIR bye-laws, no patent can be licensed without the permission of the ‘Management Council’ of CSIR. Again thanks to this clause in the Bye-Laws, CSIR HQs would have had to have maintained a copy of any patent licensing deals. Why apply to 39 different labs?
(iv) CSIR has an Intellectual Property Management Division (IPMD) whose mandate, according to its own website is to “To secure and safeguard Intellectual Property generated in CSIR under appropriate legislations in India & Abroad”. How exactly does IPMD do this without knowing what patent is licensed to whom? Does it keep writing to each individual lab on a daily basis, asking them whether they have licensed patents?
3. The lack of a will to be transparent: The truth of the matter is that CSIR simply lacks the political will to be transparent. At least, this is the feeling that I got when CSIR in its reply informed me that a DoPT circular had specifically stated that it was not required to transfer RTI applications to multiple authorities. Little does the CSIR know that the circular in question has been pretty much over-ruled by no less than a ‘full bench’ of the Central Information Commission (CIC) in the case of Ketan Kantilal Modi v. CBEC, which thanks to Indian Kanoon is available over here. In pertinent part the CIC stated the following:
58. In our view, in case CPIO of the public authority can easily and inexpensively transfer an information-request under Section 6(1) to its subordinate offices under Section 6(3), which in themselves may be public authorities, then such CPIO should proceed to do so. As in this case, since all it needed to transfer the request to other public authorities under the CBEC was to use the e-mail or the Internet, with which all these public authorities were connected, it should be possible to effect the transfer under Section 6(3).
59. We, therefore, direct the CPIO, CBEC to transfer appellant’s RTI-application to the subordinate offices/public authorities where the information requested by the appellant is known to be held. This may be done within two weeks of the receipt of this order.
In the past, the Ministry Of Finance in response to one of my RTI applications transferred my application to 33 different authorities, on its own volition without any pestering from my side. Similarly the DIPP, the Patent Office, the Ministry of Environment have all transferred my RTI applications to different authorities without raising an issue of this ridiculous DOPT circular which is not followed any longer in this country. The National Biological Authority once sent me the information first and only later asked me to pay the Rs. 400 towards photocopying charges. The difference between all these bodies and the CSIR, is the simple fact that these other bodies at least had the will to try and implement the RTI Act in its true spirit. The CSIR however seems to have a systemic issue with transparency.
Conclusion: I don’t know whether CSIR lacks a trained RTI Officer or whether they just don’t care but CSIR is desperately in need of some able administrators at the top level.