Central Information Commission
Saurav Das vs Deptt Of Information Technology on 12 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/DEOIT/A/2020/688691
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 : 26/07/2020 CPIO replied on : 31/08/2020 First appeal filed on : 01/09/2020 First Appellate Authority order : 14/09/2020 Second Appeal Filed on : 11/10/2020 Date of Hearing : 08/03/2021 Date of Decision : 08/03/2021
Note: Early hearing of the case has been taken as per the Order dated 08/02/2021 issued by the High Court of Judicature at Madras, in WP No.19430 of 2020 and WMP No.24015 of 2020.
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 sought the following information with reference to the Justice Sri Krishna Committee Report on Data Protection and subsequent 1 placement of the Personal Data Protection (PDP) Bill in the Parliament for consideration:
1. Provide the certified true copy of the entire file relating to the report after the report was made public and submitted to the Government.
2. Provide the certified true copies of all the file notings while creating the said Personal Data Protection Bill.
3. Provide the total number of representations received by the Ministry while or after making the said Bill. Furnish action taken on the same.
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.
The 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.
2At 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 have failed to mention which points the clause 8(1)(c) supposedly covers. No detailed reasons have been provided for invoking the said clause.
Even if it is considered, for the sake of argument, that the breach of privilege as claimed by the CPIO merits consideration, larger public interest still warrants the disclosure of information. To substantiate his argument, he relied on the judgment passed in the matter of Subhash Chandra Agarwal vs Lok Sabha Secretariat & Anr W.P.(C) 3491/2013 dated 02nd July, 2019.The relevant para is reiterated below:
"26. In a more recent decision on the issue of parliamentary privilege, a three Judge Bench of the Supreme Court in the case titled Lokayukta, Justice Ripusudan Dayal (Retired) & Ors. vs. State of Madhya Pradesh & Ors. reported as (2014) 4 SCC 473, the court has yet again clarified, with evermore lucidity, the purpose of conferring privilege upon the House and its members; also observing that the fundamental rights of citizens must have primacy over any privilege or special rights of any class of people including elected legislators; and that all claims to privilege are subject to judicial scrutiny."
That the larger public interest in the matter can be established from the fact that the Hon'ble Madras High Court had accepted the arguments made in the petition on the larger public interest involved in the matter and had directed the Commission for early hearing of his matter and in compliance of that order the case was listed on priority basis. This 3 therefore, without doubt, establishes the larger public interest involved in the case.
That the points no. 3, 5, 6, 11, 13, 14, 15, 16, 17 and 19 of the above mentioned applications are strictly related to the functioning of the officers of the Ministry and therefore, it is not clear as to how "breach of privilege" can be claimed on these points.
At the end, he had prayed that the CPIO may be directed to disclose complete information to him.
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 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 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 4 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. The CPIO while providing the revised reply, should note that the appellant has pointed out that on points no. 3, 5, 6, 11, 13, 14, 15, 16, 17 and 19 he had sought information about the functioning of the officers.
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.
Decision:
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 (सच
ू ना आयु त)
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Authenticated true copy
(अ भ मा णत स या पत त)
A.K. Assija (ऐ.के. असीजा)
Dy. Registrar (उप-पंजीयक)
011- 26182594 /
दनांक / Date
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