CIC admonishes the MHA and seeks confirmation on affidavit of destruction of surveillance data

tl;dr

IFF had filed six RTI applications with the Ministry of Home Affairs (‘MHA’) seeking statistical data on the e-surveillance authorised by the government. The information was initially denied by the MHA on grounds of national security, but when the matter was sent back for re-examination by the Central Information Commission (‘CIC’), the MHA claimed that it could not provide the information because it simply did not have it. We challenged this again before the CIC and the matter was heard on January 13, 2022. The CIC has “admonished” the CPIO for changing its stance and sought confirmation on non-availability of data on e-surveillance on affidavit

The CPIO was admonished by the CIC

We had sought data from the MHA regarding the total number of surveillance orders back in 2018. The information was denied by the MHA on grounds of national security. When we approached the CIC in appeal proceedings in 2021, the CIC rejected the ground of national security and sent the matter back to the MHA for re-examination.

The MHA denied the information again - this time on the new ground that it did not maintain any statistical data on e-surveillance at all! We went back to the CIC on appeal. On January 28, 2022, the CIC issued an order requiring the Central Public Information Officer (‘CPIO’) to submit an affidavit recording his claim of non-availability of data. The CIC also admonished the CPIO for belatedly raising his claim that no data is available

History of the matter

In December 2018, IFF had filed six RTI applications seeking statistical information about electronic surveillance undertaken by the MHA under Section 69 of the Information Technology Act, 2000 (‘IT Act’). This data is vital information that would enable the public to understand the implementation and extent of surveillance practices in India.

It has been over 3 years since, and we have continued to pursue this information by taking necessary actions across various fora. Below is a summary of the progress we have made so far:

Date

Strategic Action 

28.12.2018

We filed six RTI applications seeking statistical data regarding e-surveillance orders issued under Section 69 of the IT Act from the MHA.

29.01.2019

Even though we only asked for anonymised statistical information, and not specific individual information, the MHA [through its CPIO] denied the information for reasons of national security claiming exemptions under the RTI Act. We appealed this decision.

29.03.2019

The First Appellate Authority (‘FAA’) agreed with the CPIO.

06.05.2019

We filed a second appeal before the Central Information Commission (‘CIC’) against the FAA’s reply.

17.05.2021

Our second appeal was finally heard after two years by the CIC which held that the information sought could not be rejected on grounds of national security. The matter was remanded back to the FAA for re-examination.

30.07.2021

After re-hearing, the FAA passed a revised order (‘FAA Order’) on the basis of a new claim that the information sought was no longer available since records were destroyed every six months.

23.08.2021

We filed a second appeal, for the second time, before the CIC against the FAA Order.

28.10.2021

We filed two urgency applications before  the CIC seeking urgent hearing, but received no response. Since almost three years had passed since the filing of the RTI Applications, we approached the Delhi High Court by way of a writ petition to expedite the process. You can read more about the petition, and the first hearing here and here.

02.12.2021

The Delhi High Court directed the CIC to decide our appeals, and all the prayers raised in the writ petition, within 8 weeks. The Court also permitted us to file additional documents before the CIC.

13.01.2022

The CIC finally heard our (second) second appeal and passed an order on 28.01.2022, discussed above. 

Tele-hearing on January 13, 2022

Pursuant to the liberty granted by the Delhi High Court, we submitted detailed written submissions before the CIC in December 2021. The CIC, thereafter, conducted a tele-hearing in our second appeal on January 13, 2022. Mr. Abhinav Sekhri, who appeared on our behalf before the Chief Information Commissioner of India, Mr Y. K. Sinha, advanced the following submissions during oral arguments:

  1. Information similar to the one sought by us ("how many orders are issued in a year?") has been furnished by the MHA in the past. We also pointed out specific instances where such information was provided.
  2. The CPIO failed to provide both, reasons and documents, in support of its claims of destruction of data.
  3. The IT Act and the rules thereunder do not mandate destruction of data relating to the information sought by us.
  4. It was impossible to accept that despite a clear documentary mandate in the form of an SOP issued by the MHA to retain statistical information, no data on e-surveillance orders was being maintained by the MHA.

We thank Mr. Abhinav Sekhri for representing us in this matter, and for leading the legal team comprising Ms. Vrinda Bhandari, Mr. Tanmay Singh, Mr. Krishnesh Bapat, Ms. Anandita Mishra and Ms. Natasha Maheshwari.

We will continue to pursue this information…In furtherance of its larger goal of achieving digital transparency, IFF has been consistently pursuing the information on e-surveillance orders since 2018. We have now also filed RTI Applications seeking information about e-surveillance orders passed in between 2019 and 2021 where the CPIO has again denied the information citing the same reasons of non-maintenance of data. We will be pursuing these issues on all fronts and will take appropriate further action. Our long battle for seeking transparency is not over yet!

Important Documents

  1. CIC’s order dated 28.01.2022 (link)
  2. Previous blog post titled “DHC directs CIC to decide IFF’s appeals within 8 weeks” (link)
  3. Previous blogpost titled “IFF files a Writ Petition against MHA’s refusal to provide information on electronic surveillance orders issued under the IT Act” (link)
  4. Previous blogpost titled “Information sought is not available”: MHA claims to have destroyed all records when asked total number of Surveillance orders” (link)