tl;dr
In November 2020, we filed an RTI application requesting the Ministry of Electronics and Information Technology to provide copies of all public consultation responses received by the Committee constituted for deliberation on a Non-Personal Data Governance Framework. This information was refused on the ground that the Ministry was not the custodian of any information relating to internal functioning of the Committee. When the first appeal filed against this response was also rejected, we filed a second appeal with the Central Information Commission. The matter was heard on June 23, 2022 where the CIC directed MeitY to respond to the RTI application afresh after taking certain corrective steps.
Background
On September 13, 2019, a Committee of Experts under the Chairmanship of Sh. Kris Gopalakrishnan was constituted by the Ministry of Electronics and Information Technology (‘MeitY’) to deliberate on a Non-Personal Data Governance Framework (‘Committee’). This Committee published a draft report for public consultation and asked for feedback/suggestions from the public by September 13, 2020. After receiving suggestions and public feedback, the Committee revised its earlier report, and re-published it on December 16, 2020 for a second round of public feedback and suggestions.
We found that the Committee’s revised report did not contain any information on the suggestions and public feedback received by them during the first round of consultation. So, we filed an RTI application on November 2, 2020 requesting MeitY to provide copies of all responses received by the Committee during the public consultation process.
When MeitY refused to provide us with this information by stating that it was “not the custodian of any information relating to internal functioning of the Committee,” despite the fact that the Committee was constituted and funded by MeitY, we filed a first appeal before the First Appellate Authority (‘FAA’). When the FAA found that the CPIO, MeitY’s response was “appropriate,” and called for no interference, we filed a Second Appeal before the Central Information Commission (‘CIC’) on February 6, 2021.
Why should you care?
The process of public consultation before finalisation of any draft legislation or policy is the hallmark of a participative democracy. It supports the legitimate and growing expectations for a transparent and better informed Government, which makes disclosure of all stages of a policy coming to life, including pre-legislative public consultation undertaken by governments essential. When a revised draft of a legislation along with all the public comments and feedback is made available by the Government, it enhances government accountability, and also allows citizens, civil society organisations and stakeholders to drive positive and visible changes in the policies being discussed.
Hearing at the CIC
The Second Appeal was heard by the CIC on June 23, 2022. During the hearing, we submitted that the responses of the CPIO and the FAA suffered from non application of mind for the following reasons:
(i) MeitY is the custodian of the information sought: The Committee was constituted by MeitY on September 13, 2019 through an office memorandum issued by a Deputy Director of MeitY. The Committee is also financed by funds provided by MeitY. The draft reports published by Committee dated also bore the MeitY logo on their first page.
(ii) Comments on policy/legislation are public record: The pre-legislative consultation policy published by the Ministry of Law and Justice requires the Department/Ministry concerned with public consultation of a draft legislation/policy to at least upload a summary of comments received from the public on their website.
(iv) Similar information has been provided earlier: Information relating to other similar committees constituted under MeitY has been previously disclosed by MeitY. For instance, MeitY provided minutes and meetings of the 9th Empowered Group Committee on Technology and Data Management held between March 31, 2020 and August 10, 2020, in response to an RTI application filed by Sidharth Deb.
(iv) Failure to transfer: Under Section 6(3) of the Right to Information Act, 2005, if the PIO does not hold the information requested, the RTI application has to be transferred to the relevant authority by the PIO, which was not done in this case.
After the hearing, the CIC acknowledged that the Committee was formed by MeitY itself, and the same Committee’s recommendations were available in public domain (on MeitY’s website.) Accordingly, the CIC rejected MeitY’s argument that it was not the custodian of information requested in the RTI Application.
The CIC has directed the CPIO, MeitY to respond to our RTI afresh within 10 days from June 27, 2022 after taking corrective steps and taking assistance from any other officer required. We welcome this order as this paves way for seeking information from various Ministries on the functioning of the Committees constituted by it.
We are immensely grateful to Mr. Siddharth Nath of NKR Associates for appearing on our behalf before the CIC. He was assisted by a team comprising Advocates Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Amala Dasarathi, Krishnesh Bapat and Anandita Mishra.
Important Documents
- Previous blogpost titled “The non-personal data policy process remains opaque and problematic #SaveOurPrivacy” (link)
- Order of the CIC dated June 27, 2022 (link)
- Second Appeal dated February 6, 2021 (link)
- RTI Application dated November 2, 2020 filed before MeitY (link)
- Response to the RTI Application from MeitY dated 03.12.2020 (link)