Central Information Commission
Saurav Das vs Deptt Of Information Technology on 16 March, 2021
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सुचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मुिनरका, नई द ली - 110067
Munirka, New Delhi-110067
File No.: - CIC/DEOIT/A/2021/603808
In the matter of:
Saurav Das
... Appellant
VS
Central Public Information Officer,
Ministry of Electronics and Information Technology,
Electronics Niketan, 6, CGO Complex, Lodhi Road,
New Delhi - 110003
...Respondent
RTI application filed on : 29/08/2020 CPIO replied on : 23/09/2020 First appeal filed on : 07/10/2020 First Appellate Authority order : 26/10/2020 Second Appeal Filed on : 07/02/2021 Date of Hearing : 08/03/2021 Date of Decision : 15/03/2021
Note: Early hearing of the case has been done, since the case has a linkage to File No. CIC/DEOIT/A/2020/688691 and the High Court of Judicature at Madras, in WP No.19430 of 2020 and WMP No.24015 of 2020 has issued Order dated 08/02/2021, for early hearing of File No.688691.
The following were present:
Appellant: Present over VC Respondent: Ms Jacqueline Lall, Deputy Director & CPIO and G Gupta, both present over intra VC Information Sought:
The appellant has stated that the Justice Sri Krishna Committee final report had recommended as under:-1
(i) Compliance with the proposed data-protection bill would require the Parliament to enact a law that would oversee Indian intelligence agencies and intelligence gathering mechanisms.
(ii) Such a law should provide for both Parliamentary oversight as well as judicial pre-approval of all requests for non-consensual access to personal data and metadata.
In the said context, the appellant has sought the following information:
1. Provide the action taken on the above-stated recommendations.
2. Whether the Govt. of India has a proposal for such a legislation for oversight over India's Intelligence Agencies.
3. Whether the Govt of India has consulted India's Intelligence Agencies after the said recommendation. If so, provide the details of the consultation process, including copies of the communications, Minutes of the meetings, dates of communication, etc.
4. And other related information.
Grounds for Second Appeal The CPIO has not provided the desired information.
Submissions made by Appellant and Respondent during Hearing:
The appellant submitted that the CPIO has not invoked any specific clause provided under Section 8(1) of the RTI Act for denying the information. In this regard, he submitted that the officer must be sensitized about the RTI Act as any denial of information can only happen under Section 8 and Section 9 of the RTI Act, as has been held by the Hon'ble CIC and Hon'ble Delhi High Court in various previous orders. He has relied on an order passed in decision no. CIC /OK/A/2008/00860/SG/0809 where the CIC held that-
"Any refusal of information has to be only on one or more grounds mentioned in section 8 (1) or Section 9. The Act gives no scope to the adjudicating authorities to import new exemptions other than those that have been provided under the Act and thereby deny the information,"
In his second appeal memo, he had also given his comments regarding the non-applicability of Section 8(1)(i) of the RTI Act, however, since there is no mention of this exemption clause in the reply of the CPIO, the Commission does not find it appropriate to comment on the same and rather it would be putting words into the mouth of the CPIO. He also submitted that the FAA had passed his order in a mechanical manner without even considering the issues raised by him in his first appeal.
2The CPIO reiterated the contents of his written submissions dated 06.03.2021 while submitting that the information is exempted u/s 8(1)(c) of the RTI Act and therefore cannot be provided to the appellant.
At this point, the appellant raised strong objections and submitted that since the CPIO had raised a new ground for denying the information and a copy of the written submissions was emailed to him just half an hour before the hearings, it was not possible for him to get any advice from his counsel and therefore he is not in a position to contest the new exemption clause claimed by the CPIO. He requested that he may be given one days time to submit his counter submissions to rebut the arguments advanced by the CPIO. Since the submissions of the appellant were justified and reasonable as it was the duty of the CPIO to give an advance copy of the submissions to the appellant as well giving him an enough opportunity to plead his case and defend the new exemption claimed by the CPIO, the Commission accepted the request of the appellant and he was directed to file his written submissions within one day from the date of hearing.
In pursuance of the direction given by the bench to the appellant to submit his written submissions, the appellant had filed his detailed submissions on 09.03.2021. While summing up his written arguments, the following points have been raised by him:
The CPIO had claimed blanket exemption for all the 19 points of the RTI and has failed to mention which points the clause 8(1)(c) supposedly covers. No detailed reasons have been provided for invoking the said clause.
No specific Parliament rules, provisions, etc. have been submitted for claiming such a breach of privilege. What exactly are the House provisions and rules that prohibit such disclosure for alleged breach of privilege? The CPIOs have failed to detail. No detailed reasons have been provided for invoking the said clause and for this reason, this Hon'ble Commission should quash the order of the CPIO and direct disclosure of the information at the very outset.
Observations:
From a perusal of the relevant case records, it is noted that except for point no. 1,the reply of the CPIO was grossly improper as the CPIO had failed to refer to any specific exemption clause enumerated u/s 8 of the RTI Act and had merely stated that all the communications between the Ministry and other stakeholders & the internal communications notings, records, documents and correspondence relating to the drafting and finalization of the Personal 3 Data Protection Bill 2019 are part of the notes/minutes alludes to discussions which later translated into the said Bill and that constitutes cabinet note and approvals subsequently introduced in Parliament. All such documents are confidential. Further, as rightly pointed out by the appellant in his written submissions, the CPIO after giving a reply stating that all documents are confidential and not invoking any exemption clause in the reply, is now claiming exemption u/s 8(1)(c) i.e. a new clause and had again failed to justify the exemption so claimed, nor was any officer able to do so during the hearing. Under the provisions of Section 19 (5) of the RTI Act, 2005, in an appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. The CPIO in his reply had clearly failed to justify his position as to how the disclosure of information would be in contravention of any of the provisions enshrined under Section 8 of the RTI Act, 2005 and what matter is confidential. In this context, the Commission refers to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden.
While considering this alongwith the fact that the initial reply and the recent submissions of the CPIO both are incomplete, the Commission deems it appropriate to direct the CPIO to provide a revised reply to the appellant.
Another issue raised by the appellant was that the FAA had disposed of his first appeal without looking into the issues raised therein. The Commission is in agreement with the submissions of the appellant as the FAA in his order had merely stated that the reply to the RTI is complete and as per the RTI provisions. It is brought to the notice of the FAA that the rationale behind designating FAA within the public authority is seemingly to ease the process of access to information and while adjudicating on a First Appeal, a conscious effort should be made by the FAA to hear both parties and assess their objections alongside the merits of the case and arrive at a reasoned decision. Passing of mechanical orders as was done in the present case should be avoided as by doing this the role of the FAA is not adequately executed.
4Decision:
In view of the above, the CPIO is directed to re-visit the RTI application and provide a self-contained reply to the appellant as per the provisions of the RTI Act within a period of 15 days from the date of receipt of this order under intimation to the Commission.
The FAA is cautioned to be careful in future and refrain from such acts of not passing appropriate well reasoned orders in future. The relevant provisions of the RTI Act must be understood and implemented correctly by the FAA.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मा णत स या पत ित) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011- 26182594 / दनांक / Date 5