Central Information Commission
Kavya Pahwa vs National Informatics Centre on 29 June, 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/NICHQ/A/2020/682486
In the matter of:
Kavya Pahwa
... Appellant
VS
CPIO/ Scientist F,
National Informatics Centre
RTI Division, A-Block, Lodhi Road,
CGO Complex, Pragati Vihar, New Delhi - 110 003
...Respondent
RTI application filed on : 23/06/2020 CPIO replied on : 14/08/2020 First appeal filed on : 23/07/2020 First Appellate Authority order : 19/08/2020 Second Appeal dated : 20/08/2020 Date of Hearing : 21/06/2021 Date of Decision : 21/06/2021 The following were present:
Appellant: Krishnesh Bapat, Representative, present over phone Respondent: Swarup Dutta, CPIO, RTI Division; D.P Mishra, Senior Web TD Division, Deemed PIO, present over phone Information Sought:
The appellant has sought the following information:
1. Copy of the entire file including file notings/letters/communications/office memos/orders/cabinet decision/cabinet papers, etc. wherein the Ministry of Electronics and Information Technology (hereinafter referred to as "MEITY") decided to allot .gov.in domain name to PM CARES FUND by allowing to operate https://www.pmcares.gov.in/en/ website.1
2. Copy of all documents including application/request/letter/order etc. submitted by the PM CARES FUND to obtain the said domain name.
3. Copy of the order/permission etc. granted to PM CARES FUND to use the said domain name.
Grounds for filing Second Appeal The CPIO did not provide the desired information.
Submissions made by Appellant and Respondent during Hearing:
The appellant's representative submitted that there is an online registration service for obtaining the domain name. If anyone wants to obtain the .gov.in domain name they need to submit certain documents. He reiterated that it does not matter whether PM CARES FUND is a public authority or not as the information is being sought from MEITY. He requested for disclosure of information as sought for in the RTI application as there is no exemption clause invoked by the CPIO to deny the information and the same is not applicable also.
In her second appeal, the appellant submitted that the information sought by her pertained to the permission MEITY granted to the PM CARES FUND to use the domain name "gov.in". She further submitted that the PM CARES FUND uses the domain name "www.pmcares.gov.in . The usage of "gov.in" indicates that the PM CARES FUND has an affinity with the Government of India. This is because other entities which use this domain name include the office of the Hon'ble President of India (https://presidentofindia.gov.in , Office of the Prime Minister of India (https://pmindia.gov.in/en/), and Ministries such as Ministry of Home Affairs (https://mha.gov.in), Ministry of Defence (https://www.mod.gov.in) and Ministry of External Affairs (https://mea.gov.in).
She further submitted that since PM CARES FUND, according to its own admission, is not a public authority, the usage of ".gov.in" by the PM CARES FUND is contrary to extant guidelines issued by MEITY. She further mentioned that the "Guidelines for Indian Government Websites, an integral part of Cabinet Secretariat Manual of Office Procedure", prepared by National Informatics Centre, MEITY states:
"2.2-Government Domains 2 The URL or the website address of any Government Website is also a strong indicator of its authenticity and status as being official. In today's era with a large proliferation of websites, which resemble Government websites and fraudulently claim to provide reliable Government information and service, the role of a designated Government domain name assumes a lot of significance.
2.2.1 Hence, in compliance to the Government's Domain name policy, all Indian Government websites must use "gov.in" or "nic.in" domain exclusively allotted and restricted to Government websites."
Moreover, according to the guidelines issued by MEITY dated 23.10.2019, any autonomous societies/bodies/projects/schemes/events/committees of Government of India/State Government/UTs are 'ineligible' for registration under gov.in domain zone. She pointed out that according to the guidelines gov.in domain name should be exclusively allotted to government websites and autonomous societies/bodies/projects/schemes are ineligible for registration under "gov.in" domain zone. However, despite these guidelines, PM CARES FUND uses "gov.in" even though they have themselves held that it is not a public authority.
She further submitted that the appellant is concerned about how the PM CARES FUND continues to use the "gov.in" domain reserved for Government websites. She further submitted that the public has donated a substantial amount of money to the PM CARES FUND, believing that the Government of India runs the fund. She further argued that this belief is only strengthened by the fact that the PM CARES FUND uses the "gov.in" domain name. There is a possibility that the PM CARES FUND may have been using the gov.in name in contravention to the guidelines prescribed by MEITY.
She submitted that on 28.03.2020 the formation of PM CARES FUND was announced, and donations were called for to fight the Covid-19 Pandemic therefore, she sought information in respect of the same.
Furthermore, she submitted that Section 11 of the RTI Act is invoked by the CPIO when the information sought pertains to a third party and it is treated as confidential by the 'third party'. 'Third party' has been defined under Section 2(n) of the RTI Act as "means a person other than the citizen making a request 3 for information and includes a 'public authority'". From the definition of 'third party' it is evident that the third party may or may not be a public authority under the RTI Act. Therefore, information cannot be denied under Section 11 of the RTI Act on the ground that the PM CARES FUND is not a public authority. Section 11 prescribes that for disclosure of third-party information except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm to the interest of the third party. In the present case it is in public interest to disclose information regarding the basis on which the PM CARES FUND was given the permission to use the domain name .gov.in She further submitted that the grounds for exemption from disclosure of information, is provided under Section 8 of the RTI Act; none of the grounds mentioned therein have been invoked by the CPIO and FAA. Section 8 of the RTI Act provides an exhaustive list of grounds on which information may not be disclosed. None of the grounds mentioned in Section 8 are applicable in the present case nor any clause mentioned in Section 8 has been raised by the CPIO and FAA for denying the information except to say that the third party under Sec. 11 has refused the MEITY permission to share the sought for information.
The information sought for in the instant case is held by MEITY and not by the PM CARES FUND. The CPIO and FAA without applying their mind and for reasons best known to them, have denied the information sought for on the ground that PM CARES FUND is not a public authority. Since the information sought for is not with the PM CARES FUND, it is irrelevant whether it is a public authority or not under the RTI Act. She reiterated that the information sought for is held by MEITY and this Ministry is a Public Authority under the RTI Act.
She submitted that although it is irrelevant in the present case whether PM CARES FUND is a public authority under the RTI Act or not on the grounds above mentioned, however, as the CPIO and FAA have denied information on that ground, she may be granted liberty of making oral submissions or giving a brief note contending that PM CARES FUND is a public authority under Section 2(h) of the RTI Act.
4The CPIO, Shri Swarup Dutta submitted during the hearing that the subject matter of the RTI query/appeal is regarding allocation of gov.in domain name to PM CARES FUND. He further submitted that as the information received from the deemed PIO and custodian of the information i.e NIC Web Technology Division, the information requested for in the RTI query of the appellant falls under the category of third party information and accordingly a notice was sent to PMO. As confirmed by PMO vide letter dated 05.08.2020 "PM Cares Fund is not a public authority under the ambit of Sec 2(h) of the RTI Act and therefore M/o Electronics and Information Technology may not disclose any information in respect of PM Cares Fund." The same was conveyed to the appellant by NIC and the RTI application was disposed of online on 14.08.2020.
He further submitted that as per NIC Web Technology Division, "The pmcares.gov.in has been given to Hon'ble Prime Minister's office (Apex Body) in compliance with the "Guidelines for allocation of registration at the third level under Gov.in domain zone dates 23.10.2019' issued by Internet Governance division, M/o Electronics and Information Technology." The revised guidelines are available at https://registry.gov.in/pdfdocs/Gov.in Guidelines.PDF.
He further submitted that the domain request letter received from the PMO falls under point 2.1.I of the guidelines based on which the gov.in domain was allocated to PMO.
Accordingly, NIC as a public authority made a written request to PMO as per Section 11 of the RTI Act for obtaining their consent which was denied by PMO as stated above.
Shri D.P Mishra submitted that, the request for domain name was received from a third party and in view of the objection from the said third party the same cannot be disclosed u/s 8(1)(j) of the RTI Act. He further also pointed out that though Sec 8(1)(j) was not invoked in the reply, the essence is that the information relates to a third party and cannot be disclosed unless larger public interest is demonstrated by the appellant.
Observations:
Having heard both the parties, and based on the documents available on record, the Commission observed that the CPIO failed to provide a categorical reply on 14.08.2020 as they failed to invoke any exemption clause under Sec. 8 of the RTI Act. Simply quoting Sec. 11 which is not an exemption clause is not 5 enough and thus a proper reply as per the RTI Act was not provided to the appellant. As far as the plea of PM CARES FUND not being a public authority is concerned, the appellant has rightly pointed out that the same is not the issue in this case. The appellant had asked for information from MEITY and the same should have been given or in case of denial it should have been supported with the correct exemption clause and fully justified. It is settled law that Sec 11 is not an exemption clause and rather is only a procedure to obtain consent from a third party in case there is an intention to disclose the information sought.
Section 8(1)(j) was never canvassed by the CPIOs except before this bench for the first time during the hearing . However, the Commission is considering the submissions of the CPIO during the hearing even under Section 8(1)(j) since law need not be pleaded. As far as the allegation of domain name being given to PM CARES FUND without complying with the extant guidelines is concerned, the Commission is not the appropriate and competent forum to adjudicate the issue. Further, Sec 2(n) of the RTI Act clearly defines a third party as under:
"third party" means a person other than the citizen making a request for information and includes a public authority."
Moreover, the appellant herself indicated that the issue of PMCARES FUND being a public authority or not is not the issue in this RTI application. The definition of third party u/s 2(n) clearly highlights the intention of the legislature in protecting the privacy of all concerned be it a public authority or not, unless there is a larger public interest in the matter which has not been shown here.
Further, as already adjudicated in a decision by the coordinate bench in case No. CIC/PMOIN/C/2019/602116 dated 02.03.2021, it was held as follows:
"The information sought in the above two cases pertains to a body, viz. the PM Cares Fund. A public interest litigation is pending before the Delhi High Court to decide whether the said organisation falls within the ambit of the RTI Act, 2005. Hence at this stage, the queries raised relate to an organisation which has not been declared as a public authority under sec 2(h) of the RTI Act, 2005. Thus, no infirmity is found with the replies furnished by the Respondent and no interference is warranted in the above two cases, at this stage."
It is relevant to mention here that the CPIO, PMO office had replied as under in the above referred case:
6"PM CARES FUND is not a public authority under the ambit of Sec 2(h) of the RTI Act, 2005. However, relevant information in respect of PM CARES FUND may be seen on the website pmcares.gov.in."
The Commission therefore, came to the conclusion that the PM CARES FUND is a third party as rightly claimed by the CPIO in his reply. However, to deny the information, the correct exemption clause of the RTI Act should have been invoked by the CPIO in his reply stating that the third party has objected to the disclosure of the information related to it and after considering the matter, the information sought being personal to the third party is exempted u/s 8(1)(j) of the RTI Act.
Decision:
In view of the above observations, the CPIOs are accordingly directed to re- examine the information sought and provide a revised point wise reply within 7 days from the date of receipt of this order by quoting the applicable exemption clause(s) for denial with due justification.
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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