Central Information Commission
Apar Gupta vs Ministry Of Electronics & Information ... on 26 March, 2021
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/MOIAB/A/2019/110785/MOEIT
In the matter of:
Apar Gupta
... Appellant
VS
Central Public Information Office,
Department of Electronic & Information Technology (MEITY),
Electronics Niketan ,6 CGO, Complex Lodhi Road,
New Delhi-110003
...Respondent
RTI application filed on : 16/10/2018 CPIO replied on : 19/11/2018 First appeal filed on : 06/12/2018 First Appellate Authority order : 18/12/2018 Second Appeal Filed on : 08/03/2019 Date of Hearing : 25/03/2021 Date of Decision : 25/03/2021 The following were present:
Appellant: Ms Vrinda Bhandari, representative of the appellant, present over VC Respondent: Ms Jacqueline Lall, Deputy Director & CPIO alongwith Information Sought:
The appellant has sought the following information pertaining to the public notice dated 14/08/2018 issued by (MEITY) soliciting comments of general public on the report and draft Personal Data Protection Bill:
1. Provide the number and a list of the names of persons who submitted comments and feedback.1
2. Provide an inspection of any and all comments and feedback and records along with file noting of the feedback process of the Draft Personal Data Protection Bill.
3. Provide a copy of all the comments and feedback received in electronic form on CD or by copies made available on pen drive or email.
Grounds for Second Appeal The CPIO provided incomplete and unsatisfactory information. The FAA denied the information u/s 8(1)(i) of the RTI Act.
Submissions made by Appellant and Respondent during Hearing:
The appellant submitted that he is not satisfied with the reply of the CPIO as the information sought by him relates to those suggestions, on the basis of which revisions were made to the Draft Bill. Section 4(1)(c) of the RTI Act states that public authorities are mandated to disclose all relevant facts relating to important policies or decisions affecting the general public. Comments and suggestions based on which the Draft Bill was revised as well as information pertaining to the persons involved in the revision fall squarely within the ambit of this section. Further, the exemption under Section 8(1)(i) is limited to Cabinet Papers and accompanying materials submitted to the Cabinet Secretariat for deliberation. This exemption does not apply to preparatory and other background information (viz. stakeholder consultations, file notings, etc.) which do not constitute a part of Cabinet Papers. The Full Bench of this Hon'ble Commission in Venkatesh Nayak v. Dept. of Personnel & Training (CIC/WB/C/2010/000120) dated 30.08.2010 clarified that the exemption under Section 8(1)(i):
"will apply only when a Note is submitted by the Ministry that has formulated it to the Cabinet Secretariat for placing this before the Cabinet. All concomitant information preceding that, which does not constitute a part of that Cabinet Note will then be open to disclosure u/s 4 (1)(c), but in a manner as will not violate the provisions of Sec 8(1)(i)."
The representative of the appellant concluded that since the CPIO & the FAA both have failed to justify the reasons for exemption under Section 8(1)(i), the desired information should be provided to her. She further explained that she is seeking information about the notice dated 14.08.2018 which is in 2 connection with the Data Protection Bill, 2018 and not related to the Data Protection Bill, 2019.
The CPIO reiterated the contents of the written submissions dated 25.03.2021 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's representative raised an objection and submitted that the new exemption claimed by the CPIO is also not applicable as Section 8(1)(c) relates to the functioning of the Parliament or State affairs and in this regard she relied on several decisions, however, due to paucity of time and the CPIO giving submissions at the eleventh hour, she submitted that she may be allowed to make additional written submissions to rebut the new ground for denying the information. 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 which would have given her enough opportunity to plead the case and defend the new exemption claimed by the CPIO, the Commission accepted the request of the appellant and she was directed to file her written submissions soon after the hearing was over.
In pursuance of the direction given by the bench to the appellant to submit her written submissions, the appellant filed her submissions wherein she has relied on a judgment passed by the Hon'ble Supreme Court in the matter of Subhash Chandra Agarwal Vs Lok Sabha Secretariat, SCC Online Del, 9016. The relevant paras are extracted below:
As relevant for purposes of the matter in hand, the essence of the Supreme Court decisions in the above-referred cases is that parliamentary privilege serves a distinct purpose and is to be exercised to safeguard the integrity of the legislative function against obstructions which may be caused by members of the House or by non-members; and that breach of privilege would arise if an act is directly connected with or bears proximity to the duties, role or functions of a member as a legislator. Furthermore, the boundaries of parliamentary privilege must be confined to activities of parliamentarians or activities in parliament that would justify the near absolute degree of immunity available.
30. While freedom of speech is certainly the foremost parliamentary privilege enjoyed by parliamentarians, it is freedom of speech and debate in relation to their parliamentary or legislative function that is protected ;3
not speech in relation to any and every matter or subject; and it is speech, including consultation and communication, in relation to legislative function that would be immune from action or challenge outside Parliament. In the present case however, no proceedings are contemplated that would amount to questioning or impeaching what has been said by the concerned parliamentarians in relation to the extension of the Secretary General‟s W.P.(C) No. 3491/2013 page 41 of 83 tenure ; and all that is sought is information of what was said in such consultation and communications with the Speaker, merely as a matter of historical record of an event and information of what was said and no more. Assuming that a challenge is subsequently brought on the basis of information disclosed and it is found that the information relates to proceedings in Parliament, then such challenge may not be maintainable in a court of law ; but that is not the case as of now ; and information cannot be denied on a suppositional or conjectural basis that if information is disclosed to the petitioner, a challenge may possibly be brought.
She also relied on the order passed in File No. CIC/SA/A/2015/000748 dated 25.05.2016, the relevant paras are extracted below:
The PIO of the public authority did not discharge his burden under S 19(5) as he did not explain how the disclosure of report/recommendation of Lt Governor to the Union Government would cause breach of privilege of Parliament or State Legislature. A mere claim of breach of privilege under this section is not enough without explaining it and justifying it. The defense available under section 8(1) is 'breach of privilege of Parliament/Legislature, and not 'breach of privilege of Head of State or Governor or President'. In this case the question is: whether disclosure of report sent by Honorable LG would cause breach of Privilege of Parliament or Legislature? It is nobody's claim that the disclosure of report would cause breach of privilege of Parliament. It does not affect the freedom of speech of legislators, their right to publication, does not affect their immunity from being questioned before the court, none of their special rights will be affected by disclosure of the report sent by the LG in his capacity as Administrator of Delhi Government. In fact every parliamentarian or 4 legislator is having privilege to know the report/recommendation of dissolution.
Observations:
From a perusal of the relevant case records, it is noted that 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 the submissions made to the Committee by an individual/agency/company is confidential and is meant for examination by the Ministry. The submissions alluded to, will later translate into input that goes into the draft bill, that has to be approved by the cabinet before it is introduces in the Parliament. Further, the FAA had claimed exemption u/s 8(1)(i) and had again failed to justify the exemption so claimed. Further, the CPIO after giving a reply stating that all documents are confidential, is now prior to the hearing claiming exemption u/s 8(1)(c) i.e. a new clause and 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 and considering the submissions of the representative of the appellant that she is seeking information about Data Protection Bill, 2018, the Commission deems it appropriate to direct the CPIO to provide a revised reply to the appellant.
5Decision:
In view of the above, the CPIO is directed to re-visit the RTI application and provide a revised reply to the appellant as per the provisions of the RTI Act including mentioning the correct clause of the RTI Act under which exemption is being sought for denial of information and proper justification for the same. The CPIO should note that in case she is not able to justify the exemption so claimed, then the desired information should be provided to the appellant. This direction is to be complied within a period of 15 days from the date of receipt of this order under intimation to the Commission.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना)
Information Commissioner (सच
ू ना आयु त)
Authenticated true copy
(अभ माणत स यापत त)
A.K. Assija (ऐ.के. असीजा)
Dy. Registrar (उप-पंजीयक)
011- 26182594 /
दनांक / Date
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