Tl;dr
Today the Delhi High Court issued notice to Public Information Officers of DeitY, MeitY, NeGD and NIC in a writ petition filed by RTI activist and independent journalist, Saurav Das. The petition challenged the Central Information Commisison’s refusal to grant Mr. Das a hearing prior to disposing of his complaint based on the government's misleading claim that the information sought by him regarding the creation of the Aarogya Setu app was already available in the public domain.
Background
Since May 2020, RTI activist and independent journalist, Saurav Das has been trying to obtain information about creation of the Aarogya Setu mobile app which was launched by the Indian government as a COVID-19 surveillance measure. The app has courted controversy due to the involvement of private sector volunteers in its development and its mandatory nature. Compared to international best practices, the Aarogya Setu app adopts a centralized model and it collects a large amount of health and location data of its users. These features of Aarogya Setu have led to concerns about misuse of personal data collected by the app for commercial and law enforcement purposes.
Through his RTI work, Mr. Das has managed to uncover information about the Aarogya Setu app which shows that its current functioning does not comply with provisions of the Aarogya Setu Data Access and Knowledge Sharing Protocol. However, there is still a lot of information about the creation of the app which is not available to the public. For this reason, Mr. Das had filed several RTIs with the relevant government authorities and sought a copy of the entire file relating to Aarogya Setu which would contain information about the origin of the proposal, people and government departments involved, correspondence between private sector executives and government officials, file notings, minutes of meetings etc.
Shockingly, after keeping Mr. Das waiting for over three months, the Public Information Officers of the National Informatics Centre (which built the App), the National e Governance Division (responsible for e-gov projects) and the Ministry of Electronics & Information Technology (which owns the App) all claimed that information relating to Aarogya Setu is not held by their respective departments.
Proceedings before the CIC
On 10 September 2020, Mr. Das filed a complaint before the Central Information Commission (CIC) because the relevant government authorities were claiming ignorance about Aarogya Setu. An urgent hearing was held before the CIC on 22 October 2020 because the CIC recognized that this issue could affect the privacy of millions of Indians during the COVID-19 pandemic and irreversible harm would be caused if the usual wait time of 2 years was insisted upon.
During the hearing on 22 October 2020, the CIC heard Mr. Das's submissions about the conduct of government officials who were providing evasive responses about Aarogya Setu to frustrate RTI applicants. When questioned by the CIC, Public Information Officers from MeitY, NeGD and NIC could not explain which government department held all information related to creation of Aarogya Setu. In its interim order, the CIC held that denial of information by government authorities in such a manner could not be accepted and while files may move between departments, "a citizen cannot go round in circles to find out the custodian."
The CIC held a show cause hearing in the matter on 24 November 2020 but Mr. Das was not granted permission to attend the hearing despite multiple requests. In his absence, the CIC issued a final order uncritically accepting the government's claim that the information sought by Mr. Das was already available in the public domain. Subsequent to the final order being issued, the government authorities shared certain documents with Mr. Das which were already available in the public domain but which did not answer the specific queries in his RTI application.
Writ Petition before Delhi High Court
On 17 December 2020, we filed a writ petition before the Delhi High Court on behalf of Mr. Das challenging the CIC’s refusal to grant him a hearing prior to passing the final order which incorrectly disposed of his complaint and dropped the show cause proceedings against the Public Information Officers. The petition was listed today before a Single Judge Bench of Justice Pratibha Singh who issued notice to the government and sought specific details about the documents supplied to Mr. Das and whether they actually answer the queries in his RTI application.
During the hearing, Advocate Vrinda Bhandari advanced oral arguments on behalf of Mr. Das and explained the timeline of the case to highlight how he had been kept waiting since May 2020 due to the evasive conduct of government officials. She also distinguished the judgements relied upon by the Respondents and clarified that the CIC should have at least heard the Petitioner to determine whether there was a default by the Public Information Officers even if he was not provided a hearing at the time of determination of quantum of penalty. She emphasized that if the Petitioner had been present during the show cause hearing, he could have rebutted the government’s claim that all information sought by him was available in the public domain and prevented the CIC from being misled.
In response, the Government Counsel maintained that all relevant information was available in the public domain and it had been supplied to the Petitioner. He further justified the delay and lack of coordination among different government departments regarding Aarogya Setu by stating that the app had been developed in record time without spending a single penny amidst a war-like situation where the priority was saving lives.
Recognizing that the case involves contested issues of fact, Justice Singh directed both sides to submit a chart clearly comparing the information which had been sought by Mr. Das with information supplied by the government authorities. She also observed that the main concern was the merits of the case and expeditiously deciding the matter since the Petitioner had been seeking this information since May 2020.
IFF provided legal assistance to Mr. Das for this petition and he was represented in court today by Advocates Vrinda Bhandari, Sanjana Srikumar, N. Sai Vinod and Devdutta Mukhopadhyay. The matter has been listed next on 24 February 2020 and we will keep you updated about the case proceedings.