tl;dr

On March 25, 2021, one of IFF's second appeals in the Central Information Commission (CIC) was up for hearing for the disclosure of comments on a public consultation on the Personal Data Protection Bill. The CIC accepted our submissions and directed the Central Public Information Officer (CPIO) of the Ministry of Electronics and Information Technology (MeitY) to re-visit the RTI application and provide us with a revised reply and the comments, if no valid exemptions could be claimed.

Background and sequence of events

The drafting, vendor selection and choices made by the, "expert" committee have been the subject of a long standing controversy in which civil society has criticised it for lacking diversity and expertise. This can only be overcome with transparency. To further this we filed RTI's seeking greater information not only on it's working but the comments which were sent in response to a public consultation. This disclosure has been strangely resisted by MeitY leading us to take this case to take this case to the CIC.

A quick timeline of the events that led to the CIC's welcome order:

RTI for transparency on the Data Protection Bill

On October 16, 2018, we filed a RTI request with MeitY pertaining to the public notice dated 16 August 2018 titled, “Feedback on Draft Personal Data Protection Bill” which solicited comments from the general public on the Draft Personal Data Protection Bill. Our short information request was:

1. Kindly provide the number and a list of the names of persons who received comments and feedback
2. Please provide an inspection of any and all comments and feedback and records along with file notings of the feedback process of the Draft Personal Data Protection Bill.
3. Provide a copy of all comments and feedback received in electronic form on CD or by copies made available on pen drive or email.

The CPIO, in its reply dated November 19, 2018, refused to provide us copies of the comments and stated that,

“Total No. of responses received: 624. The submission made to the committee by an Individual/ Agency / Company is confidential and 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 introduced in parliament.”

While the RTI Act provides the right to the public to seek information from the government to its activities, it also offers the government various exemptions from providing such information in cases such as state secrets, cabinet papers, danger to life or physical safety of an individual etc. However, to ensure procedural fairness, the government must clearly state which exemption it is invoking, when refusing to provide information. In this case, the CPIO did not cite any provision of the Right to Information Act, 2005 to support their rejection of the our request, and as such, their refusal to provide us with information was without basis, arbitrary, illegal, and in violation of a plethora judgments of Courts such as the judgment of the Hon’ble Delhi High Court in Sh. Rakesh Kumar Gupta v CIC, WP (C) No. 900/2021, dated January 22, 2021, which stated that the CPIO cannot withhold information without reasonable cause.

We file a first appeal

Accordingly, on December 4, 2018, we filed an appeal before the First Appellate Authority (‘FAA’) against this reply of the CPIO. However, on December 18, 2018, the FAA disposed off the first appeal by stating that, “Under section 8.1(i) of RTI Act 2005, the information cannot be shared”. Section 8(1)(i) of RTI Act, 2005 states that:

Section 8: Exemption from disclosure of information.
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—
(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers.

We persist with a second appeal

Not receiving a satisfactory response from the FAA, we filed a second appeal before the CIC. The second appeal was taken up for hearing before the CIC on March 25, 2021, where IFF's Of Counsel Advocate Vrinda Bhandari was accompanied by CCG Litigation Fellow who is hosted at IFF, Krishnesh Bapat.

We raised the following (among other) grounds at the hearing and in our written submissions:

1. The exemption under Section 8(1)(i) is limited to Cabinet Papers and accompanying materials submitted to the Cabinet Secretariat for deliberation. It does not apply to preparatory and other background information (such as. stakeholder consultations, file notings, etc.) which do not constitute a part of Cabinet Papers. Further, in relation to Section 8(1)(i) of the RTI Act, the Full Bench of the Hon’ble CIC in Venkatesh Nayak v. Dept. of Personnel & Training (CIC/WB/C/2010/000120) dated August 30, 2010 had 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)."

1. Section 4(1)(c) of the RTI Act, 2005 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 Personal Data Protection Bill was revised as well as information pertaining to the persons involved in the revision fall squarely within the ambit of this. Instead, the FAA simply rejected the our first appeal by citing an exemption under Section 8(1)(i) without providing any explanations as to the applicability of the exemption.
2. The decisions of the CPIO and the FAA are contrary to the well-settled principle that denial of access to information under Section 8 of the RTI Act is an exemption that has to be construed strictly (See Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5 SCC 481, para 133) Consequently, any withholding of information under the garb of Section 8 must be accompanied by applicable reasons for doing the same.

We also submitted that Section 8(2) provides that regardless of exemptions provided under Section 8(1), a public authority may allow access to information if the public interest in disclosure outweighs the harm to the protected interests. In the present case, there is significant public interest because the inputs form the basis of the draft of a law prepared by the Ministry of Electronics and Information Technology prior to being placed before the Cabinet before it is introduced in the Parliament.

We also received written submissions from the CPIO in which they raised an additional defense on the basis of Section 8(1)(c) of the RTI Act, 2005 which states that, "information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature", is exempted from disclosure.

Persistence pays off (kinda)

After hearing us, and giving a chance to the CPIO to be heard, the Information Commissioner, in her decision, made the following observations:

1. 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, 2005.
2. The FAA claimed exemption u/s 8(1)(i) but again failed to justify the exemption so claimed.
3. The CPIO after giving a reply stating that all documents are confidential, prior to the hearing claimed 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.
4. 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 referred 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."

Accordingly, in her decision, the Information Commissioner directed the CPIO 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."

IFF is committed and will keep persisting for greater transparency around the Data Protection Bill to ensure that it serves the rights of everyday, ordinary Indians than unaccountable powers and exemptions that act against their interests.

Important Documents

1. Order of the Hon'ble Central Information Commission in the matter of Apar Gupta v CPIO, Department of Electronic & Information Technology (MEITY) dated March 25, 2021 (link)
2. Written Submissions on behalf of the Appellant dated March 18, 2021 (link)
3. Second Appeal bearing reference no.CIC/MOIAB/A/2019/110785/MOEIT dated February 7, 2018 (link)

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