IFF files a Writ Petition against MHA’s refusal to provide information on electronic surveillance orders issued under the IT Act

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We filed six RTI applications in December 2018 seeking information about Electronic Surveillance orders passed under Section 69 of the IT Act. The information was, at first, denied on the grounds of national security. Thereafter, on appeal, when the matter was remanded back, the information was denied on the new ground that records pertaining to the information sought were destroyed as per ‘extant’ provisions (without providing the provision). When we, further, appealed against this order in August 2021 before the Chief Information Commissioner (‘CIC’), we did not get any date for hearing which we understand is due to the huge case pendency and unfilled vacancies in the CIC, owing to which the matters are only being listed after two years of filing. Three years have passed since the filing of the RTI applications, and we apprehend that the information sought is being continuously destroyed during the pendency of the RTI proceedings. Therefore, we have approached the Delhi High Court to expedite the process and to seek information on Electronic Surveillance, which impacts the fundamental rights of all citizens of the country.

Update: The Delhi High Court has directed the CIC to determine the timeline within which our second second appeal is to be decided regarding the information.

Background

Having a meaningful discussion about surveillance is impossible unless there is transparency with regard to the government’s surveillance practices. So, with an aim to understand the adequacy/functioning of the legal supervisory mechanisms for the interception, monitoring, or decryption of electronic information (collectively “Electronic Surveillance’) under the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 (“2009 Interception Rules”), we filed six RTI applications on 28.12.2018 seeking information from the Ministry of Home Affairs (‘MHA’) on the total number of orders passed for Electronic Surveillance under Section 69 of the Information Technology Act, 2000 (‘IT Act’).

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, this request was rejected for reasons of national security and was said to be exempted under Section 8 of the RTI Act. We have not asked the names, phone numbers, addresses or any other details of any specific persons targeted by electronic surveillance. We only want to know the total number of snooping orders issued. Why? Because it’s important to know the extent of surveillance activities that are carried out by the State.

The first appeal was also rejected and on filing a second appeal in May 2019, which was finally heard after two years in May 2021, the case was sent back to the first appellate authority (‘FAA’) for re-examination of issues with an observation that the information sought was not barred by any exemptions provided in the RTI Act.

But this time, when the FAA was re-examining the issues, the Central Public Information Officer (‘CPIO’), MHA claimed that the information sought was no longer available since records were destroyed every six months, and this was accepted without question by the FAA in its revised order (‘FAA Order’)!

We filed an appeal against this order before the Chief Information Commissioner (‘CIC’) in August 2021, along with two applications for urgent listing of the appeal, but did not receive any response from the CIC.

Three years have passed since the information was first sought through RTI applications, and we now apprehend that (i) the records relating to the information are being destroyed during the pendency of the RTI process, and (ii) given the pendency of cases before the CIC, it may be another two years before the second appeal is finally listed. This would basically render the RTI applications infructuous.

But this information has been provided previously!

Therefore, we filed a writ petition against the FAA Order before the Delhi High Court on the following grounds:

  1. The information on Electronic Surveillance has previously been made available in the public domain: the central government has, on several occasions (in 2011, 2014, 2015 and 2019) disclosed information similar to that sought by us in response to other RTI applications, to a question posed in the Parliament and in a counter-affidavit filed in another matter. Therefore, it cannot, now, refuse to disclose the information sought for security reasons.
  2. The plea of “weeding out” of information was taken belatedly: the CPIO, MHA in its first response to the RTI applications did not claim that the information sought did not exist. He only claimed that the records relevant to the information sought are “weeded out” from time to time belatedly in oral arguments in the second appeal. In the remand hearing he claimed that since the information sought was more than six months old, it was destroyed without providing any basis for the same. The belated plea of weeding out of documents shows an intention to obfuscate the truth.
  3. Destruction of data during the pendency of RTI proceedings defeats the ends of justice and denies rights: it is a settled principle of law that records cannot be destroyed during the pendency of an appeal, and, therefore, MHA could not have destroyed records pertaining to the information requested by us during the pendency of the RTI proceedings. What would even be the practical purpose of the RTI Act, if information can be refused for whatever reason, without regard to the relevance of that reason, and then destroyed by the time the appeal reaches its hearing date? If this practice is allowed, then no citizen will ever receive any information on government activity of any nature.
  4. Delay in providing the data sought was not in good faith: The MHA and the public information authorities have delayed the disclosure of data sought with a deliberate view to ensure that records were destroyed before disclosures were ordered by higher appellate authorities.
    There is also no provision under the RTI Act that provides for the destruction of records during the pendency of a CIC appeal, or of a provision that provides a fixed timeline for the disposal of CIC appeals. This loophole is being used by the CPIO, FAA, MHA and CIC to justify the violation of fundamental rights in this manner.

What have we sought in the Writ?

In the Writ Petition, we have sought the following:

  1. setting aside of the FAA’s Order;
  2. a declaration that weeding out/destroying the information during the pendency of RTI proceedings was illegal;
  3. direction to the CPIO to provide the information sought by us in the six RTI Applications regarding Electronic Surveillance, or to provide similar information for the time period for which information is available with the MHA; and
  4. framing of appropriate guidelines for the prevention of destruction and adequate preservation of information sought in RTI proceedings during their pendency.

In the interim, we have also sought a direction that the MHA preserve the relevant records of Electronic Surveillance during the pendency of the Writ Petition. We also sought directions to the CIC to expeditiously hear and dispose of our second appeal against the FAA Order.

The matter was listed for hearing today and has been adjourned to 12.11.2021 for listing before the appropriate bench of the Delhi High Court.

The team of lawyers who drafted the writ petition include Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Anandita Mishra, Krishnesh Bapat and Natasha Maheshwari.

Hearing Update

The matter came up for hearing on 12.11.2021. The Ld. Single Judge of the Delhi High Court has directed the advocate for the CIC to seek instructions on the timeframe within which the CIC will determine the second second appeal we have filed against the FAA's order dated 24.06.2021.

  1. Copy of the Writ Petition in Apar Gupta v. CPIO, Ministry of Home Affairs (link)
  2. Previous blogpost titled ““Information sought is not available”: MHA claims to have destroyed all records when asked total number of Surveillance orders” (link)
  3. Previous blogpost titled “IFF keeps pushing against secrecy in surveillance. CIC orders MHA to adjudicate on our request for transparency.” (link)
  4. Previous blogpost “We won’t give up! IFF approaches CIC against MHA’s refusal to disclose surveillance figures.” dated 14th May, 2019 (link)
  5. Previous blogpost titled “TOP SECRET: MHA Refuses to reveal total number of snooping requests.” (link)