In a twenty page Order handed down under the RTI Act on 12thJune 2018, Sri Lanka’s RTI Commission hasruled that two termination agreements entered into between SriLankan and AerCap which caused great losses to SriLankan Airlines are to be released as they have been completed and concluded.
Even though SriLankan argued otherwise, the Commission has stated that the existence of a confidentiality clause in the said agreements do not, by themselves, establish the applicability of the RTI exemptions as that is a contractual obligation per se.It pointed out that the Public Authority has failed to prove what precise portions of the agreements with AerCap related to information given by a 3rdparty to the Public Authority and ‘treated’ as confidential at the time as required by the RTI Act.
However, purchase agreements of SriLankan with Airbus SAS to buy four A350 aircrafts have not been included within the Order to disclose as negotiations in regard to its cancellation are still ongoing. Three aircrafts were to be delivered in 2020 and one aircraft was to be delivered in 2021. The Commission had commented that this is an ongoing process and that ‘commercially sensitive information’ may be in issue, including inter alia, pricing and price revision mechanisms.
Responding to the appeal filed by the Pilots Guild of Sri Lanka and its President, Captain Ruwan Vithanage, the Commission also directed that Sri Lankan Airlines release details of salaries and other allowances and/or benefits of the CEO of SriLankan Airlines Limited, Head of Human Resources (HHR) of SriLankan Airlines Limited and Chief Commercial Officer (CCO) of SriLankan Airlines Limited. Also to be disclosed are the information related to and/or connected to the cost of personal flying training for the A320 jet conversion borne by SriLankan Airlines Limited and/or any party for the CEO, Mr. Suren Ratwatte.
In the Order, the Commission has stated that this is information which, by its very definition, ‘directly relates to the financial accountability and transparency of the Public Authority in the expenditure of public funds. This is all the more so by virtue of the pre-eminent position that it holds as the country’s national air carrier and in the context of widespread public concerns in regard to financial management of the Public Authority.’ It has emphasized that ‘where the public purse is concerned, and the alleged financial irregularities of a particular Public Authority are under scrutiny in an Appeal before us, this Commission will be particularly watchful of the public interest.’
In addition, the RTI Commission has directed that the Memorandum of Understanding dated 28th July 2016 with PIA, the Wet lease agreement dated 04th August 2016 with PIA and the Wet lease extension agreement dated 02nd November 2016 with PIA ‘comes within the ambit of information that may properly be released under this Act.’ It has been pointed out that a confidentiality clause cannot prevent information disclosure after the contract/agreement had been awarded, where the accountability of public funds and the transparency of the Public Authority is in issue.
The RTI Commission has further ordered that relevant Board Minutes, Board Papers, reports by aviation consultants are to be released subject to Sri Lankan establishing that relevant portions of those documents need to be severed from the rest to protect commercial confidence harming the competitive position of a third party or confidential information given by a 3rdparty as allowed by the RTI Act. If information is severed, that will be subject to the RTI Commission making sure that it is done in accordance with the RTI Act, it has said.
Earlier, the national airlines argued that it did not come within the RTI Act which argument was not upheld by the Commission. SriLankan did not appeal against that Order at the time. Now that the main appeal has been decided, it has one month to challenge it in the Court of Appeal.