Central Information Commission
B Rohit Reddy vs Ministry Of Home Affairs on 10 May, 2022
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/MHOME/A/2020/668859
Shri B Rohit Reddy ... अपीलकता /Appellant
VERSUS/बनाम
PIO ... ितवादीगण /Respondent
Ministry of Home Affairs
Date of Hearing : 17.02.2022. 15.03.2022
Date of Interim Decision : 18.02.2022
Date of Final Decision : 10.05.2022
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on : 02.11.2019
PIO replied on : 22.11.2019
First Appeal filed on : 27.12.2019
First Appellate Order on : -
2ndAppeal/complaint dated : 06.04.2020
Information soughtand background of the case:
The Appellant filed anRTI application dated02.11.2019seeking information on the followingpoints:-
The CPIO/Director, CIS Division, IS-IV Desk, MHA, vide letter dated 22.11.2019 replied as under:-Page 1 of 9
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 27.12.2019which was not adjudicated by the First Appellate Authority as per available records.
Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
Shri Ravjot, Advocate participated in the hearing on behalf of the Appellant through audio conference. However, no vakalatnama/authorisationletter was sent by the Appellant or Shri Ravjot prior to the hearing. During the hearing of submissions advanced byShri Ravjot could not be heard due to connectivity issues at his end and no alternative number was available with him to facilitate the hearing. Shri Ravjottherefore desired adjournment of hearing to a future date.
The Respondent represented by Shri ShailendraVikram Singh, Dy Secretary, CIS-II Division, M/o Home Affairs participated in the hearing through audio conference.
Interim Decision:
Having heard both the parties and on perusal of the available records, the Commission directs the registry of this bench to list this matter on another date in due course through video conference/ physical hearing. The Commission also admonishes the Appellant and his representative since no authorization letter/vakalatnama for an authorized representative, if any, is presentedbefore the Commissionin accordance with para 5 of the notice of hearing on or before thedate of hearing. In future,failure to do so will lead to the instant Second Appeal being decided on merits.
Note : A Vakalatnama dated 07.03.2022 sent by the Appellant in favour of Shri P N Upadhyay, Advocate, Shri Ravjot Singh, Advocate and Shri AnkitBhan, Advocate authorizing them to appear on his behalf has been received by the Commission alongwith copies of the decisions/ judgments of the CIC in CIC/VS/A/2014/000378/SB decided on
02.09.2015; CIC/SM/A/2011/000308/SG/13000 decided on 21.06.2011; judgment of Hon'ble High Court of Delhi in Bhagat Singh vs CIC and Ors, WP (C) 3114/ 2007 decided on 03.12.2007, judgments of the Hon'ble Supreme Court in State of UP vs Raj Narain, Civil Appeal No 1596 of 1974 decided on 24.01.1975 and Secretary, M/o Information and Broadcasting, Govt of India, Cricket Association of Bengal vs Union of India and Ors, Civil Appeal Nos 1429-30 of 1995 with WP (C) No 836 of 1993 decided on 09.02.1995.
Facts emerging during the hearing dated 15.03.2022 The Appellant's representative Shri Ravjot Singh, Advocate and Shri M Pavan Kumar, Advocate participated in the hearing through video conference. Shri Singh stated that they were not seeking the call recording or source of information but the basis on which the Appellant's mobile number was tapped. He stated that as per the provisions of the Indian Telegraph Act, 1885, the Indian Telegraph Rules, 1951 and the IT Act, 2000 only the data gathered during interception and the source of information can be denied but not the basis/ reasons/ grounds on which the lawful interception was carried out. In this context he relied on the decision of the Commission in CIC/SM/A/2011/000308/SG/13000 decided on 21.06.2011 and stated that the issue regarding disclosure of the basis on which lawful interception is carried out is no longer res integra. He also stated that the exemption u/s 8 (1) (h) of the RTI Act, 2005 is not applicable at this stage since the investigation has been completed now and charge sheet has been filed and that in case the source information is sensitive, the same may be redacted as per Section 10 and the remaining information can be provided.
Page 2 of 9The Respondent represented by Shri Rakesh Kumar, US, M/o Home Affairs participated in the hearing through video conference. He reiterated the CPIO's reply and stated that the first appeal was decided vide order dated 11.02.2020 wherein the reply of the CPIO was concurred with. In addition he stated that records sought have been destroyed now which was also conveyed in the CPIO's response.
Final Decision Keeping in view the facts of the case and the submissions made by both the parties, the Commission at the outset observes that similar issues have been heard and adjudicated in CIC/MHOME/A/2021/638510 dated 28.01.2022 where the applicant had inter alia sought statistical information for the period from 01.01.2016 to 27.12.2018 pertaining to the directions issued by the competent authority u/s 69 of the IT Act, 2000, requests received from various agencies under IT Act, 2000, directions issued for interception, monitoring or decryption for a continuous period of more than 15 days. Following are the relevant extracts of the said decision:
"Perusal of records in the light of the averments placed forth by the parties with respect to the Second Appeal seeks to challenge the order dated 30.07.2021 passed by the FAA, whereby information sought by the Appellant was denied on the ground that it does not exist on record and has been weeded out as per process of law. In order to adjudicate the issues raised in this matter, it will be worthwhile to address them in the following manner:
I. At the very outset, it is pertinent to note the following provisions of law, which have been mentioned and impugned in this case:
i). Rule 419A(18) of the Telegraph Rules, 1951: Records pertaining to such directions for interception and of intercepted messages shall be destroyed by the relevant competent authority and the authorized Security and Law Enforcement Agencies every six months unless these are, or likely to be, required for functional requirements.
ii). Rule 419A(19) of the Telegraph Rules, 1951: The service providers shall destroy records pertaining to directions for interception of message within two months of discontinuance of the interception of such messages and in doing so they shall maintain extreme secrecy.
iii). Rule 23 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 Destruction of records of interception or monitoring or decryption of information--
(1) Every record, including electronic records pertaining to such directions for interception or monitoring or decryption of information and of intercepted or monitored or decrypted information shall be destroyed by the security agency in every six months except in a case where such information is required, or likely to be required for functional requirements.
(2) Save as otherwise required for the purpose of any ongoing investigation, criminal complaint or legal proceedings, the intermediary or person in-charge of computer resources shall destroy records pertaining to directions for interception of information within a period of two months of discontinuance of the interception or monitoring or Page 3 of 9 decryption of such information and in doing so they shall maintain extreme secrecy.
II. The Appellant has submitted additional material in the form of a written submission dated 07.12.2021, and placed reliance on an affidavit dated 21.02.2019 submitted by the Director, MHA before the Hon'ble Supreme Court in WP(Crl.) No. 1/2019 and five other connected matters, challenging the constitutional validity of part of the Section 69 of the Information Technology Act, 2000, Section 5(2) of the Indian Telegraph Act, 1885 and Rule 4 of the Information Technology(Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009. The petitions are still pending before the Apex Court, but pleadings in the case provide detailed insight into the matter under challenge.
In support of his contentions made in the affidavit, the deponent had attached a copy of the order dated 20.12.2018 of the Union Home Secretary, whereby ten Security and Intelligence agencies had been specified which were authorised to intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer under Section 69(1) of the Information Technology Act, 2000 read with Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009. It further transpires from the detailed affidavit that in order to provide necessary safeguard, the provisions of Section 419A of the Indian Telegraph Rules, 1951 are specifically adhered to which allows lawful interception of phones under unavoidable circumstances, upon obtaining necessary approval from the competent authority i.e. the Union Home Secretary or the Home Secretary, as the case may be.
A combined reading of the affidavit alongwith the order dated 20.12.2018 clarifies that the specified ten agencies as enlisted in the order are the only agencies/organisations who were empowered to utilise and exercise the powers under Section 69 of the Information Technology Act, 2000, subject to approval of the competent authority as per provisions of law, rules and SOP. No blanket permission to any of the agencies for interception or monitoring or decryption is granted without adequate justification and necessary approval of the competent authority. Thus, it transpires from the contents of the detailed affidavit of the Director, MHA that the specific ten security and intelligence agencies are the actual custodians of the information about the interception, monitoring and decryption of such information related to surveillance and data is not held by the Respondent in this case.
The affidavit also highlights that records pertaining to directions for interception and of the intercepted messages are destroyed by the relevant competent authority and the authorized Security and Law Enforcement agencies every six months unless such data is required for functional requirement. In order to illustrate the power of interception in larger national interest in preventing terrorism, drug trafficking and busting of narcotic drugs racket, the deponent placed reliance on a list of cases where major cases were detected/cracked by the use of the laid down procedure of interception. The list of cases highlighted those specific instances where information was not destroyed but was retained for necessary future functional requirement, as specified in law.
III. Now dealing with the merits of the Second Appeal, it will be worthwhile to revisit the information sought by the Appellant vide six RTI applications dated 28.12.2018, which are as under:
Page 4 of 9 Page 5 of 9It is evident that the Appellant had vide RTI application dated 28.12.2018 sought information pertaining to period between 01.01.2016 to 27.12.2018. The PIO's denial of information invoking Section 8(1)(a), (g) and (h) of the RTI Act, 2005 has already been dealt with in the previous order dated 18.05.2021, passed by this Commission and hence require no further discussion. In compliance of the Commission's order dated 18.05.2021, the FAA vide order dated 30.07.2021 declined disclosure of information with the observation that the information sought by the Appellant is no longer available on record, since such records are weeded out every six months, in terms of Section 5(2) of Telegraph Act, 1885, Section 69 of the Information Technology Act, 2000, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 and Rule 419A of the Indian Telegraph Rules, 1951. It has also been noted by the FAA that being highly classified information, minimal records are maintained and statistical data is not compiled or maintained by the CIS Division, MHA. The FAA upheld the PIO's averments that the data being subject to extant provisions of law, records pertaining to the period 2016-18 18 have been weeded out and hence coucould ld not be provided.
"Considering Considering that such a plea about non existence/weeding out of records had not been taken by the PIO vide the reply dated 25.01.2019, it has rightly been contended by the Appellant vide submissions dated 07.12.2021 that the PIO's has raised the plea belatedly edly that the information sought by the Appellant did not exist as it was periodically destroyed and also has not supported the averment by material in the form of documents or affidavits or policy for destruction of data.
While discussing the issue abou aboutt dissemination of information, it is relevant to note that as per the provisions of extant laws governing the data sought by the Page 6 of 9 Appellant which relates to 2016- 2018, such information could not have been readily available on the date of filing of the RTI application, viz. 28.12.2018. Moreover, as has been noted from the contents of the affidavit dated 21.02.2019 of the Director, MHA filed before the Hon'ble Supreme Court in WP(Crl.) No. 1/2019, submitted on record by the Appellant, the actual custodian of such information are the ten specified Security and Intelligence agencies as mentioned in the MHA's order dated 20.12.2018. It is interesting to note that the Hon'ble Delhi High Court in its decision dated 01.06.2012 in the case of Registrar of Companies & Ors. vs. Dharmendra Kumar Garg & Anr.[WP(C) 11271/2009 has discussed the scope and ambit of the "right to information" in the following words:
"...the right conferred by Section 3 of the RTI Act, which is the substantive provision, means the right to information "accessible under the Act which is held by or under the control of any public authority and includes ..... ..... .....".
27. It is not without any purpose that the Parliament took the trouble of defining ―right to information‖. Parliament does not undertake a casual or purposeless legislative exercise. The definition of "right to information" specifically qualifies the said right with the words:
(1) "accessible under this Act", and;
(2) "which is held by or under the control of any public authority".
28. The information should, firstly, be accessible under this Act. This means that if there is information which is not accessible under this Act, there is no "right to information" in respect thereof. Consequently, there is no right to information in respect of information, which is exempted from disclosure under Section 8 or Section 9 of the RTI Act...
31. In the context of the object of the RTI Act, and the various provisions thereof, in my view, the said expression "held by or under the control of any public authority" used in section 2(j) of the RTI Act deserves a wider and a more meaningful interpretation. The expression "Hold" is defined in the Black's Law dictionary, 6th Edition, inter alia, in the same way as "to keep" i.e. to retain, to maintain possession of, or authority over.
34. From the above, it appears that the expression "held by" or "under the control of any public authority", in relation to "information", means that information which is held by the public authority under its control to the exclusion of others."
It is relevant to note the Apex Court's decision in the decision dated 09.08.2011 in the case titled: Central Board Of Secondary Education &Anr. vs Aditya Bandopadhyay & Ors.on this aspect:
"34. When trying to ensure that the right to information does not conflict with several other public interests (which includes efficient operations of the governments, preservation of confidentiality of sensitive information, optimum use of limited fiscal resources, etc.), it is difficult to visualise and enumerate all types of information which require to be exempted from disclosure in public interest. The legislature has however Page 7 of 9 made an attempt to do so. The enumeration of exemptions is more exhaustive than the enumeration of exemptions attempted in the earlier Act that is section 8 of Freedom to Information Act, 2002. The Courts and Information Commissions enforcing the provisions of RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonises the two objects of the Act, while interpreting section 8 and the other provisions of the Act.
35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of `information' and `right to information' under clauses (f) and
(j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act.
But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non- available information and then furnish it to an applicant..."
The information sought in this case though not exempted under Section 8 or 9 of the RTI Act, the same is not held by or under the control of the public authority in question, as is evident from the above discussion. Such information falls within the exclusive jurisdiction of the specified ten agencies as enlisted in the MHA's order dated 20.12.2018, since these are the only agencies/organisations who were empowered to utilise and exercise the powers under Section 69 of the Information Technology Act, 2000, subject to approval of the competent authority as per provisions of law, rules and SOP. Therefore, in the light of the above decisions of the respective Courts, the Respondent-CIS, MHA cannot be considered to be the actual custodian of information nor responsible for dissemination of the information under the purview of the RTI Act.
IV. The Appellant in his rejoinder has mentioned that such information was maintained by the Respondent and furnished in the past referring to the list of cases submitted before the Apex Court with the affidavit dated 21.02.2019, highlighted those specific instances where information was not destroyed. On reading the provisions of Rule 419A(18) of the Telegraph Rules, 1951 and the Rule 23 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, it becomes clear that as exception to the rules of destruction of records, some information is not destroyed but retained in specific cases where such information is for necessary future functional requirement, as specified in law. The request to obtain information was filed after two years from the date of origin of the information and since there was no legal embargo in the form of any Court order nor any pending investigation with respect to the data in question, the same was destroyed in normal course, as per mandate of law. Thus the argument about destruction of records during pendency of the RTI matter is not found to be applicable in this case.
V. The Appellant contended that similar information had been provided in the past referring to a copy of the Ministry of Home Affair's RTI response dated 25.05.2011 to Shri Paras Nath Singh's RTI dated 24.02.2011, a copy of the Ministry of Home Affair's RTI response dated 12.05.2014 to SFLC's RTI application dated Page 8 of 9 19.03.2014 and a copy of Shri Ravi Shankar Prasad's reply to Unstarred Question No. 1443. The argument of the Appellant is untenable in this case because in all of these instances, the queries were limited and answered with an approximate figure. However, as is evident in the case at hand, the rather large list of queries raised vide the six RTI applications dated 28.12.2018 could not have been answered with approximate figures.
Having discussed the various aspects of the case and the specific legal provisions governing such confidential information sought by the Appellant, it is deemed appropriate that the Respondent-PIO, Deputy Secretary, CIS Division, MHA shall submit an affidavit on a non judicial stamp paper affirming that the MHA does not maintain any statistical information/data, related to lawful interception & monitoring and that the desired information is not available as on date and hence the same cannot be provided to the Appellant. This affidavit should reach the Commission within four weeks of receipt of this order, with a copy duly marked to the Appellant....."
In the present instance as well, the Respondent claims that the information sought has been destroyed/ weeded out. The Commission therefore directs the CPIO cum Deputy Secretary, CIS Division, MHA to submit an affidavit on a non judicial stamp paper affirming that the desired information is not available as on date and hence the same cannot be provided to the Appellant. This affidavit should reach the Commission within four weeks of receipt of this order, with a copy duly marked to the Appellant.
With the above direction, the instant Second Appeal stands disposed off accordingly.
Y. K. Sinha (वाई.
वाई. के. िस हा) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) S. K. Chitkara (एस. के. िचटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 Page 9 of 9