Govt can’t deny data on GM Mustard

People should know how and why GM Mustard is being permitted or denied because they have to consume that food or feed and face consequences. It is a policy decision by the public authority which needs to be revealed to the public in general as mandated by the Section 4 because they are going to be affected if GM mustard is marketed. Data on safety issues which is matter of overriding public interest cannot be considered as confidential information

When Kavita Kuruganti sought a copy of biosafety document of GM Mustard being experimented in fields for trial in India along with raw data of studies conducted, the response of the CPIO was that it could not be given as it was under process and is ‘confidential.’ She contended: Supreme Court and CIC have already adjudicated this. The CIC found overriding public interest and asked for all existing data to be shared before any such massive trial.

It was only such data sharing followed by public scrutiny by experts that pointed out biosafety issues and gaps in the Bt Brinjal dossier in the past, which was put on an indefinite moratorium later on, due to lack of conclusive proof of safety. Years later, a Supreme Court Technical Expert Committee re-analysed and submitted biosafety data concluding that the regulators were wrong in concluding that the GMOs (genetic modified organism) were safe.

Respondents wanted to give entire information only after clinical trials proved correct, contended that the patent right was in favour of inventor, that they gave ‘gist of minutes’ of the meeting of Genetic Engineering Appraisal Committee (GEAC), and asked appellant to participate in the public hearing. Madhumitha Biswas, the Member-Secretary of GEAC, has also invited the appellant and her team for discussions on the matter. Contention of Environment Ministry are analysed as follows:

a)The public authority has no authority to limit the disclosure to ‘gist’ and refusing the rest.
b)To say that information can be given only after clinical trials proved correct is not right proposition. Does it mean that they are refusing to give information if the clinical trials are not proved correct? Right to Information of citizen about clinical trial does not depend on its success or failure. The authority has to share irrespective of the outcome.
c)The burden of proof is on the PIO or public authority to prove that it was confidential, which was not discharged.
d)Denial of information on the pretext that it was under process is unreasonable. No exception permits such a denial.
e)It was stated by Dr Warrier that the application for environmental release of transgenic mustard hybrid DMH 11 by CGMCP, University of Delhi (South Campus), was under the review of GEAC and when completed, it would be shared, except confidential information having IPR implication).

Research and Development of GM crops is a long-drawn process taking about seven to ten years and therefore piecemeal posting of information may lead to misinterpretation of scientific facts and creating a wrong perception on the technology. Finally Madhumitha contended that they would give when complete information is ready that too only after taking final decision. She also maintained that the appellant has alternate remedy and matter is already in sub judice in the Supreme Court and prayed for dismissal of second appeal.

The Commission cannot accept these excuses that information could be given only after complete information is ready and could not be given because matter was sub judice, as RTI Act has provided for no such exceptions. The public authority should understand that the information sought by appellant is supposed to be disclosed on their own as per the mandate under Section 4.

The decision-making process should be told, along with information about whether such process is adopted, minutes of the meetings, results of clinical trial, and entire information about GM Mustard etc. This is in public interest. The people should know how and why GM Mustard is being permitted or denied because they have to consume that food or feed and face consequences. It is a policy decision by the public authority which needs to be revealed to the public in general as mandated by the Section 4 because they are going to be affected if GM mustard is marketed.

Sec. 8(1) of Right to Information Act, 2005 says: (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

However, both in this sub clause of Sec. 8(1) and in sub clause (2) of Sec. 8, access may be allowed to information “if public interest in disclosure outweighs the harm to the protected interests.” The Cartagena Protocol on Biosafety is the first international agreement to regulate the transboundary movements of genetically engineered (GE) organism that resulted from the mobilisation of the international community, to place precaution at the core of decision-making related to such movements.

This contains a precautionary principle, which is at the heart of this agreement. This means that countries have the right to ban or restrict the import and use of GE organisms when there is a lack of scientific knowledge or consensus regarding their safety.
The protocol requires that countries are informed and agree in advance to imports of GE crops. This is called the Advance Informed Agreement (AIA).

Before countries are allowed to export any genetically engineered organisms destined for intentional introduction into the environment, they must first obtain the importing country's explicit consent. The Article 21(6) of this agreement provides an explanation regarding what should not be considered as confidential: They are: (a) The name and address of the notifier; (b) A general description of the living modified organism or organisms; (c) A summary of the risk assessment of the effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health; and (d) Any methods and plans for emergency response.

The public authority, thus, shall disclose the information as explained under Article 21(6) which cannot be considered as confidential, and after avoiding other confidential information, if any. CIC directed the Ministry of Environment and Forest (MoEF) to furnish the certified copy of TEC report and joint affidavit filed by MoEF and MoA in response to the
TEC report.

Warrier submitted that the main bone of contention was whether toxicity and allergenicity data are confidential information as stated by the 3rd party. CIC in Divya Raghunandan case has rightly indicated that data on safety issues which is matter of overriding public interest cannot be considered as confidential information. Dr Warrier said that GEAC was in full agreement with this and never denied information related to the safety aspect.

She also claimed that India was fully compliant of the requirement under Article 21(6) and such information was posted on the website (http;//www.moef.gov.in/major-initiatives/geac-clearances). She claimed that uploading of the confidential information without giving an opportunity to the 3rd party to represent their case would be unfair to the principles of natural justice as the researchers in the country are also one of the stakeholders and their views cannot be neglected in the national interest.

The Commission finds reason in this point that is requirement under RTI Act also, and directs the public authority to issue notice to 3rd party to represent their case and take an independent decision as to whether the information would constitute ‘confidential information’ as claimed by 3rd party and communicate the same before 30th April 2016.

CIC directed public authority to verify and provide such information which could be given as per the Protocol, more specifically the biosafety dossier as submitted by the crop developer in 2014 and in 2015, and any other material submitted by them and under review, after separating confidential information if any, as per their independent decision.

CIC also directed all biosafety data pertaining to all other GMOs in pipeline as that was part of voluntary disclosure under Section 4 of RTI Act. (Based on CIC decision in Kavitha Kuruganti v. Ministry of Environment & Forests, GOI, Delhi, CIC/SA/A/2015/901798, on 1.4.2016)