Central Information Commission
Saurav Das vs Deptt Of Information Technology on 7 February, 2023
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: CIC/DEOIT/A/2021/631352
In the matter of
Saurav Das
... Appellant
VS
1. CPIO
Ministry of Electronics and Information Technology,
Electronics Niketan, 6, CGO Complex,
Lodhi Road,
New Delhi - 110003
2. CPIO
Indian Computer Emergency Response Team (CERT - In),
Ministry of Electronics and Information Technology,
Electronics Niketan, 6, CGO Complex, Lodhi Road,
New Delhi - 110003
... Respondents
RTI application filed on : 01/03/2021 CPIO replied on : 01/06/2021 First appeal filed on : 02/06/2021 First Appellate Authority order : 03/06/2021 Second Appeal filed on : 19/07/2021 Date of Hearing : 07/02/2023 Date of Decision : 07/02/2023 The following were present: Appellant : Not present
Respondent: Vimla Sharma, Joint Director and CPIO, CERT-In, present over VC Information Sought:
The Appellant has stated that on 31 Oct 2019, the IT Ministry had asked the Facebook-owned messaging platform WhatsApp to explain the breach of 1 privacy and data of Indians. In the said context, in his second appeal, he has sought information on points 3, 4 and 5 of the RTI application, which are stated below:
3. Provide copies of all the correspondence and any type of communications which took place between WhatsApp and MEITY, in the matter.
4. Provide copies of the file notings, internal communications, memos, orders, etc. in relation to the said matter.
5. Provide the final outcome of the matter.
Grounds for Complaint The CPIO did not provide the desired information.
Submissions made by Appellant and Respondent during Hearing:
The appellant in his second appeal submitted that he had filed an RTI application seeking information about MEITY's action taken against WhatsApp based on a 2019 Indian Express Report which had revealed that at least 24 Indians had been snooped upon using the Pegasus spyware. He further submitted that two CPIOs furnished a reply, the first one answering Points 1-2 were satisfactory enough and not a matter of contention in this second appeal. The reply by CPIO of Indian Computer Emergency Response Team (hereinafter termed as CERT-In) for points 3-5 is not satisfactory. He further submitted that the same is incomplete, grossly improper and illegal. He further submitted that for points no. 3 & 4 information was denied as per section 8(1)(a) of the RTI Act 2005. For Point 5, no information was stated to be available with CERT-In. On the first appeal too, the FAA MEITY replied saying that the reply of the CPIO was "provided and there is no further information with CERT-In which can be provided." The request for personal hearing was not granted, despite request backed with citations. He argued that such blatant violation of orders needs to be fixed. In respect of points no. 3 and 4 of the RTI application he sought to be given the certified true copy of all the correspondences and any type of communications between WhatsApp and MEITY on this matter. He argued that denial is blatant misuse of the exemption clauses provided under the RTI Act and no explanations whatsoever have been provided to justify the invoking of this clause. Further, for Point 5 of the RTI application, which sought to know 2 the final outcome of the matter with WhatsApp, the answering CPIO stated that it had no information in this regard.
He argued that the reply of the CPIO is preposterous, as the records of the conversation with WhatsApp and the subsequent follow-up on the same are available with the concerned Division of MEITY, and in his understanding with the answering CPIO's division and it is rather unfortunate that he claims "no information" is available. They must be available somewhere as the decision or the conclusion of the matter, or the lack thereof, will not have been taken in thin air.
He also submitted that his request for transfer of Point 5 of the RTI to the concerned CPIO was not done, which he assumed that the transfer could not be done because the records would be available with the answering CPIO. Therefore, he requested action u/s 20 of the RTI Act against the CPIO Ajay Lakra for lying under the RTI Act and seeking to mislead him. For point 5 he submitted that if the CPIO is unaware of the "final outcome" as sought for in the RTI application, the same should be further transferred to the concerned CPIO of the concerned Public Authority u/s 6(3) of the RTI Act. This is non-negotiable and mandatory to do.
For Points 3 & 4 he submitted that the CPIO had claimed blanket exemption u/s 8(1)(a), without providing any justification for it. On 23.03.2021 in CIC/MOSJE/A/2019/128270 Venkatesh Nayak Vs. CPIO, Department of Social Justice and Empowerment the Commission had noted-
"The Commission observes at the outset that the denial of the information in the initial reply of the CPIO under Section 8(1)(i) of the RTI Act was grossly inappropriate as no justification was provided for invoking the said exemption, in fact, the CPIO merely reproduced the provision of Section 8(1)(i) in his reply to the RTI Application. The said conduct of the CPIO is viewed adversely by the Commission as it is suggestive of his non-application of mind in dealing with the matters under the RTI Act.
Adverting to the foregoing stance, it is clear beyond reasonable doubt that the CPIO denied the information to the Appellant without ascertaining the applicability of Section 8(1)(i) and has thus obstructed the right to information of the Appellant. The CPIO is severely admonished for the inappropriate denial of the information to the 3 Appellant and he is warned to ensure that due diligence is exercised while dealing with the RTI Applications in future."
He argued that the CPIOs have been directed time and again to provide reasoning for invoking the exemption clauses under the RTI Act. Such non- reasoning is not only inappropriate but also is suggestive of non-application of mind. It is illegal. He submitted that the CPIO MEITY has in this case too, failed to justify the invoking of the exemption clause and has mechanically rejected the information. The CPIO therefore should be directed to reason as to why information would require exemption u/s 8(1)(a), would it harm economic interests, scientific interests, strategic interests. He further submitted that a serious breach of human rights and privacy had happened due to the spyware being planted on many Indians' phones. It is of utmost public interest that details are disclosed to the public as to what action was taken in the matter. A large-scale hacking of phones of several Indians have been reported as recently as 18.07.2021 and it is of utmost public interest that the action taken so as to safeguard the human rights, the right to privacy, and the right to life and liberty of the citizens of this country, the action taken by MEITY on such previous hacking attacks be well-established and the public comes to know of the action and final outcome of the matter. This will only inspire confidence in the hearts of the citizenry and serve the larger public interest.
The appellant contended that the records as requested including the files containing the purchase order for Pegasus, the expenditure towards it, the file noting, the legal sanction as accorded, etc. would be in the possession of the CPIO and no stonewalling attempts in the name of Section 8(1)(a) should be entertained. The misuse of Pegasus had also been reported in October 2019 where at least 24 Indians were found to be snooped upon using this malicious spyware, illegally. This therefore means that it is all the more important for this Commission to order proper disclosure of the information sought. The Ministry's non-answer is akin to denial and the same is illegal and unacceptable.
He further relied on various judgments of the Hon'ble Supreme Court, High Courts and CIC to press for justifiable reasoning in case the information is denied, to request submissions of the CPIO to be accepted only if sworn in 4 affidavit is submitted, pressed for complete information, as well as other related reliefs.
However, he was not present for the CIC hearing despite due service of notice on 20.01.2023 vide speed post acknowledgment no.ED247011063IN. The CPIO vide written submissions dated 02.02.2023 submitted that the information possessed or processed by CERT-In in respect of its statutory functions is sensitive in nature and disclosure of such information in general without any safeguards may cause incalculable harm by raising unwarranted alarm and panic in the public eroding the confidence on digital governance, public interest and may even adversely affect national and economic security. She further submitted that the matter pertaining to NSO Pegasus software is sub judice. The Hon'ble Supreme Court has passed order on 27.10.2021 in Writ petition (Criminal) no. 314 of 2021 and Ors, wherein a Committee to enquire, investigate and determine in respect of the use of Pegasus set of software on the mobile handset and other devices of citizens of India has been constituted. She further submitted that since the information sought pertains to national security issues and is the subject matter of enquiry and investigation and the matter is also subjudice before the Hon'ble Supreme Court the information disclosure is detrimental to public interest.
Observations:
The Hon'ble Supreme Court in its order in the matter of Manohar Lal Sharma v Union of India WP (Crmnl) 314/2021 dated 27.10.2021 , in which the Pegasus issue was dealt with had observed as under:
14. This Court clarified at that juncture that it was not interested in any information that may have deleterious impact on the security of the country. However, the respondent Union of India could still place on record facts pertaining to the events highlighted by the petitioners, without disclosing information adjudged to be sensitive by the relevant authorities."
It is also pertinent to mention here that the present status of the case is that the same is pending before the Hon'ble Supreme Court. After considering the gravity of the issue it is pertinent to mention here that even the Hon'ble Supreme Court had not asked for any such information which was adjudged to 5 be sensitive by the respondent and information which can have deleterious impact on the security of the country was avoided to be discussed in the order. The allegation of privacy breach issue is yet to be concluded by the Supreme Court and at this juncture any direction for disclosure of the correspondences, and any type of communications between Whatsapp and MEITY on this matter, as well as file notings, internal communications, memos, orders etc, final outcome if available shall not be possible. The information sought was rightly denied at that time also u/s 8(1)(a) of the RTI Act though the respondent did not amplify and justify the applicability of this clause in the initial reply, the same has been adequately done in the written submissions dated 02.02.2023.
Sec 8(1)(a) prohibits disclosure of information, which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; the security of the State can be compromised if any information is disclosed during the pendency of the case subject matter before the Supreme Court.
In view of the same, the Commission is in agreement with the CPIO's submissions.
Decision:
The CPIO is directed to supply a copy of the written submissions dated
02.02.2023 with its enclosures to the appellant. She is also advised to ensure that while denying any information henceforth, proper justification for the same must be provided. The FAA is cautioned to take note of the principles of natural justice and ensure that the applicants are provided a personal hearing when such a request is made in the first appeal.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना)
Information Commissioner (सच
ू ना आयु त)
Authenticated true copy
(अ भ मा णत स या पत त)
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A.K. Assija (ऐ.के. असीजा)
Dy. Registrar (उप-पंजीयक)
011- 26182594 /
दनांक / Date
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