CIC Gives Benefit of Doubt to Home Ministry’s Policy on Surveillance of Citizens
It may be recalled that on 20 December 2018, the cyber and information security division of the ministry of home affairs (MHA) issued an order which authorises 10 security and intelligence agencies to intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer resource.
 
It may also be recalled that as per Section 8(1) of the the Right to Information (RTI) Act, "that information which cannot be denied to the Parliament or a state legislature shall not be denied to any person.’’ Hence, based on this premise, Apar Gupta, RTI applicant and member of the Internet Freedom Foundation (IFF) filed 6 RTI applications in 2019 to the MHA seeking information on risks to an individual’s online privacy as it enables surveillance by the government without any transparency. 
 
Mr Gupta had the reference of similar information of telephone tapping that was disclosed in the Lok Sabha and hence, as per Section 8 (1) of the RTI Act, he too had a right to similar information. The information disclosed in the Lok Sabha was in response to a question by a member of Parliament (MP) on 4 March 2015.
 
Ravi Shankar Prasad, the minister of communications and information technology, had then said on an average 5,000 interception orders per month issued by the Union home secretary under the Telegraph Act and Rules. Therefore, as per this logic, Mr Gupta felt that his request for generalised, statistical information cannot be denied when similar information has been disclosed in the Parliament.
 
Mr Gupta’s six RTI applications sought information on:
 
1. How many times has the government used its powers for interception?
 
2. How many agencies have been authorised to intercept, monitor or decrypt data?
 
3. The names and the directions provided to the above-mentioned agencies.
 
4. Date, time and duration of meetings conducted by the review committee.
 
5. How many times has the government received requests from different agencies seeking interception? (a) Number of requests denied. (b) Number of requests approved.
 
6. How many times has an order been issued to prevent any offence which affects the sovereignty, integrity, defence or security of the state? Number of times order issued to investigate into an offence.
 
Predictably, the central public information Officer (CPIO) of the home ministry denied information under various sub-sections of Section 8 of the RTI Act. This, despite the fact that information sought under RTI by Mr Gupta was generalised statistical data, just like the minister had asked in the Lok Sabha in 2015, to which he was given prompt information. 
 
The IFF states in its website, “Even though we did not ask for details of a specific interception order or a particular individual, and despite our request being limited to anonymous and consolidated figures, the CPIO at the ministry of home affairs refused to provide the information citing various exemptions under Section 8(1) of the Right to Information Act, 2005 (RTI Act). All we were asking for was statistical, anonymous and macro information that could better inform evidence led policy for surveillance reforms.’’ 
 
The CPIO of the home ministry denied information on the grounds that disclosure of surveillance related statistics would threaten national security under Section 8(1)(a); endanger the safety of third parties under Section 8(1)(g) and; interfere with ongoing investigations under Section 8(1)(h).
 
 The first appellate authority (FAA) also rejected Mr Gupta’s first appeal without explaining how harm would be caused by disclosure of statistical data. This, despite an earlier CIC order way back in 2006, which clearly directs that, " ...through this Order the Commission now wants to send the message loud and clear that quoting provisions of Section 8 of the RTI Act ad libitum to deny the information requested for, by CPIOs/Appellate Authorities without giving any justification or grounds as to how these provisions are applicable, is simply unacceptable and clearly amounts to malafide denial of legitimate information attracting penalties under section 20(1) of the Act.”
 
Mr Gupta then filed a second appeal for all his six RTI applications in 2019. Not surprisingly, the matter came up for hearing after two years; that is, early this week on 17th May 2021 and a decision was given by chief information commissioner YK Sinha on 18th May, on his six second appeals which were clubbed together. 
 
Mr Sinha, in his observations, wrote in his order that RTI applicant Gupta has quoted several valid CIC decisions which prove that the CPIO as well as the first appellant of the home ministry in this case have not qualified the reasons for denial of information. He also mentioned that Gupta was seeking generalised, statistical data and so in no way did the information fall under rejection vide any of the sub-sections under Section 8 of the RTI Act.
 
To this, Shailendra Vikram Singh, CPIO of the home ministry stated (which CIC Sinha wrote in his observations) that "since phone tapping or decryption is done keeping in view the safety and security of the country, his predecessor had denied disclosure of the information, invoking inter alia section 8(1)(a) of the RTI Act.’’ And that, “minimal data is maintained for such highly classified operations and as per extant rules, such data are destroyed, all records are weeded out from time to time.’’ Shocking, isn’t it, that such data is so easily destroyed and weeded out?
 
Yashwant Sinha, favouring the RTI applicant, observed in his order that:
 
The CPIO has claimed three exemptions under Section 8(1)(a), (g) and (h) of the RTI Act, 2005 without establishing any connection of the same with the facts of the cases at hand. 
 
Since the RTI applicant has not sought any personally identifiable information in respect of any individual, or even the locations in which the orders under Section 69 of the IT Act were passed, there is no question of endangering the life or physical safety of any person. 
 
The information sought by the RTI applicant does not seek disclosure of any assistance given in confidence for law enforcement and security purposes either. 
 
Oral submissions made by the CPIO of the home ministry during the course of hearing are unconvincing and fail to satisfy the Commission. 
 
It appears that the FAA has also not decided the cases at hand with due diligence and summarily disposed of the appeals, without dealing with the facts in any detail.
 
Despite such clear observations by CIC Yashwant Sinha, his decision strangely and surprisingly gives the benefit of doubt and a long rope to the home ministry. Sinha, in his decision says, "the six appeals have not been adjudicated appropriately.’’ So he has sent back the matter to the FAA, Ashutosh Agnihotri, joint secretary of the home ministry to "re-visit the cases and re-examine the issues raised’’ and that the CIC would give the final order after the FAA sends his report to the CIC, the deadline of which is 31 July 2021.
 
While the IFF states that, "this is a positive outcome. IFF will be consistently and incrementally pushing for greater transparency and trust for interception and surveillance reforms,’’ we only hope this is not an excuse to keep the case languishing. Given IFF’s abilities of perseverance, hopefully transparency will prevail in this issue that directly matters to us all.
 
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.) 
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