CIC directs Delhi Police to respond afresh to IFF's RTIs seeking information on use of FRT in policing

tl;dr

In 2020 and 2021, we filed three RTI applications with the Delhi Police seeking information on their use of FRT. The information was refused under Section 8 of the RTI Act. Some information was refused on the ground that it is not available. The Delhi Police also said they have “Nil” information on CCTV cameras! Our first appeals against these responses were rejected, so we filed Second Appeals with the Central Information Commission. They were heard on June 29, 2022, and the Delhi Police were directed to revise their response to the RTI applications, in compliance with the RTI Act.

Why should you care?

In India, facial recognition technology (‘FRT’) is used without any legal framework in place to regulate its use, in violation of the right to privacy of individuals enshrined in Article 21 of the Constitution. The unregulated use of FRT also raises concerns regarding bias, which is all the more pronounced in the context of criminal investigation - where the Delhi Police have themselves said they use FRT on numerous occasions. We frequently file RTI applications before various state authorities in an effort to increase transparency and accountability from authorities using FRT. In its Order in our Second Appeal, the Chief Information Commission (‘CIC’) directed the Delhi Police to respond in compliance with the Right to Information Act, 2005 (‘RTI Act’) to our queries on their use of FRT. This is an important step in the direction of greater enforcement of transparency of information held by the state, particularly around policies and technologies that have a direct bearing on fundamental rights and civil liberties, and greater compliance with the RTI Act.

Background

IFF has been tracking the development of the Delhi Police’s facial recognition system since 2019, along with tracking instances of facial recognition use in the country overall, through Project Panoptic. In October 2020, we filed two RTI applications with the Delhi Police, seeking information on their use of FRT in traffic management and criminal investigation, which was widely reported in the media. In 2021, media reports also recorded the Delhi Police’s use of FRT for investigations in the pogrom that took place in North-East Delhi in February 2021. So, we filed another RTI application with the Delhi Police in March 2021 asking them for information on this.

The Public Information Officer (‘PIO’) of the Delhi Police refused to provide us information pertaining to their use of FRT in policing in all three RTI applications, citing various reasons, some of which have been described below:

1. They cited a Section “8(d)” of the RTI Act as a grounds to claim exemption from providing us with the information, which does not even exist!
2. They responded to one of our queries - “Please state the total number of CCTV cameras or similar video recording devices installed till date or proposed to be installed in the future” saying “Nil,” despite their use of CCTVs and video recording devices being well-known and documented, including on their own website.
3. They stated that some information sought regarding the use of FRT in traffic management did not relate to the “Unit” we had filed the RTI application before, but failed to transfer those questions to the authority it did relate to, as required under S. 6(3) of the RTI Act.

Dissatisfied with the responses we received, we filed first appeals under the RTI Act for all three RTI Applications. The First Appellate Authority (‘FAA’) found that the response was “appropriate” in all three cases, and did not merit any intervention. Thus, we filed second appeals before the Central Information Commission (‘CIC’) for all three RTI Applications in 2021. These appeals came up for hearing on June 29, 2022 before the Hon’ble Chief Information Commissioner, Mr. Y.K. Sinha (‘Chief Information Commissioner’).

Proceedings before the CIC

On June 29, 2022, all three Second Appeals came up for hearing before the CIC. We argued assuming that the PIO’s response stating that the information we sought was exempted from being provided under Section 8(d) was actually a reference to Section 8(1)(d) of the RTI Act, which exempts “information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party” from being provided to a citizen. During the hearing, we submitted that the responses of the CPIO and the FAA were inaccurate, misleading, and suffered from non application of mind for the following reasons:

1. Information was denied in the absence of a reasoned order as required under the RTI Act, while even citing a non-existent section.
2. In the event that information pertaining to certain questions was not available with the authority before whom the RTI Application had been filed, the authority is obligated under the RTI Act to identify the authority holding this information and transfer the questions to them, which was also not done.
3. The FAA failed to consider whether the PIO’s response that there were “Nil” CCTV cameras/video recording devices installed in Delhi or proposed to be installed in Delhi, was accurate and truthful.
4. The exemption under Section 8(1)(d) of the RTI Act does not apply to the information sought by us in any manner, as it relates to ongoing criminal investigations carried out by the Delhi Police and their use of FRT in it, and do not relate to commercial confidence, trade secrets or intellectual property of a third party. The PIO also did not provide any specific reasons while citing this exemption.
5. Even if the exemption did apply, the information should have been provided to us anyway, in public interest, as the information concerns fundamental rights, including the right to privacy.

Through a common order for all three Second Appeals, the Chief Information Commissioner accepted many of our arguments, and set aside the response of the PIO and the Order of the FAA in all three Second Appeals, directing the Delhi Police to provide a revised response to our RTI applications, strictly in accordance with the RTI Act. In two RTIs (CIC/DEPOL/A/2021/604037 and CIC/DEPOL/A/2021/630157), the CIC has directed the Delhi Police to respond by 30.07.2022 and file a compliance report before the CIC. In the third RTI (CIC/DEPOL/A/2021/606116), the CIC has directed the Delhi Police to respond by 31.08.2022, observing that as the Delhi Police “did not bother” to transfer the questions pertaining to other departments, they should gather the information themselves and provide it in a consolidated response.

The Chief Information Commissioner’s Order also records that Section 8(1)(d) cannot be applied to the type of queries asked by us as they “have no bearing with information related to commercial confidence, trade secrets or intellectual property of a third party,” and “Section 8(1)(d) of the RTI Act, 2005 should not have been invoked to deny information as it is not likely to adversely impact competitive position of a third party,” indicating that there was no application of mind by either the PIO or the FAA. The Order also records that it is “legally flawed” for the Delhi Police to have cited this exemption with respect to the information sought by us.

Importantly, the Chief Information Commissioner observed:

“In view of the patently incorrect application of the provisions of the RTI Act, 2005 by the Respondent public authority in all the instant cases, the PIO is warned to be careful in handling RTI application in future. The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of their duties and responsibilities.”

We welcome this order as this paves way for greater transparency by public authorities and better compliance with the RTI Act by them.

We are immensely grateful to Shreya Munoth, Partner, Chakravorty, Samson and Munoth for appearing on our behalf before the CIC. She was assisted by a team comprising Advocates Amala Dasarathi, Krishnesh Bapat, and Anandita Mishra.

Important links

1. Order of the CIC dated 04.07.2022 (Link)
2. Second Appeal bearing No. CIC/DEPOL/A/2021/604037 dated February 5, 2021 (Link)
3. Second Appeal bearing No. CIC/DEPOL/A/2021/606116 dated February 5, 2021 (Link)
4. Second Appeal bearing No. CIC/DEPOL/A/2021/630157 dated June 13, 2021 (Link)
5. Blog post titled ‘From investigation to conviction: How does the Police use FRT?’ dated July 2, 2021 (Link)