Despite CIC’s observation that MeitY's response to us was “grossly improper," MeitY issues the same response again #SaveOurPrivacy

Tl;dr

Through an Order dated 25th March, 2021, the Central Information Commission (CIC) had accepted our submissions in our second appeal against the Ministry of Electronics & Information Technology (MeitY) and directed the Central Public Information Officer (CPIO) to re-visit the original RTI application and provide us with a revised reply and the comments, if no valid exemptions could be claimed. The information we sought related to the disclosure of comments on a public consultation on the draft Personal Data Protection Bill, 2018. However, the CPIO simply cited the same exemption under S.8 of the RTI Act that she had provided before the CIC, despite clear directions from the CIC to revisit and revise.

We just wanted to see the comments to the PDPB consultation, but had to go all the way to the CIC for it

When it comes to the Personal Data Protection Bill, the drafting, vendor selection and choices made by the "expert" committee have been the subject of a long standing controversy, and civil society has criticised it for lacking diversity and expertise. One of the ways to overcome this criticism is through transparency. To further this, we filed an RTI application seeking more information not only on its working but the comments which were sent in response to a public consultation, and made the following requests:

1. Kindly provide the number and a list of the names of persons who received comments and feedback.
2. Please provide an inspection of any and all comments and feedback and records along with file notings of the feedback process of the Draft Personal Data Protection Bill.
3. Provide a copy of all comments and feedback received in electronic form on CD or by copies made available on pen drive or email.

This disclosure has strangely been resisted by MeitY, who initially denied to disclose the information without quoting any provision of the Right to Information Act, 2005 (RTI Act) to justify why such denial is legal. This stance was changed before the First Appellate Authority, where the CPIO sought refuge under Section 8(1)(i) of the RTI Act, which states that cabinet papers are exempt from disclosure. We took this case to the CIC, where IFF's Of Counsel Advocate Vrinda Bhandari was accompanied by CCG Litigation Fellow who is hosted at IFF, Krishnesh Bapat.

Before the CIC, the CPIO submitted her Written Submissions, where she changed her stance again, and added another ground under which to seek refuge - S. 8(1)(c) of the RTI Act, which exempts from disclosure information relating to parliamentary privilege. We argued that neither S. 8(1)(i) nor 8(1)(c) of the RTI Act apply to the information we sought; that denial of access to information through any exemption under S. 8 of the RTI Act has to be justified through extensive written reasons and that the CPIO cannot simply reproduce the provision mechanically (See Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5 SCC 481, para 133); and that in any event, under Section 8(2) of the RTI Act a public authority may allow access to information if the public interest in disclosure outweighs the harm to the protected interests.

The CIC accepted our arguments, and held that the reply of the CPIO was grossly improper, and that the exemptions claimed under S. 8 of the RTI Act were not justified even though the onus to prove that a denial of a request was justified is on the CPIO. The CIC directed the CPIO to re-visit the RTI application and provide a revised reply to the appellant, and if she is not able to justify the exemption so claimed, then the desired information should be provided.

MEITY offers the same “grossly improper” response again

On 13th April, 2021, the CPIO sent their revised reply to us. Shockingly, the revised reply was substantially similar to CPIO’s written submissions before the CIC that had already been rejected by the CIC. In the table below, we have reproduced the CPIO’s revised reply and Written Submission for comparison:

The CPIO has simply altered the grammar in a few spots and returned the same reply to us. No justification has been provided for why S.8(1)(c) applies to the information we are seeking, beyond what has already been rejected by the CIC. Accordingly, since no justifiable exemption has been found, the CPIO ought to have disclosed the information to us. It is also not the CPIO’s case that the information is not available with the CPIO.

Our complaint to the CIC

We decided to bring this gross evasion of responsibility on part of the CPIO to the notice of the CIC, by filing a complaint under Section 18(1) of the RTI Act. In our complaint, we have set out the above factual background, including the table illustrating the shocking similarity between the CPIO’s revised reply and the written submissions.

We have submitted that the CPIO has malafidely denied information to and has wantonly disregarded the decision of the Hon’ble Commission dated 25th March, 2021, and have prayed for the following relief from the CIC:

1. Issue appropriate orders or directions against the CPIO for acting in disregard of the directions of the Hon’ble Central Information Commission dated 25.03.2021;
2. Issue appropriate orders or directions against the CPIO for malafidely denying information to the Complainant; and
3. Such other reliefs as the Hon’ble Commission deems fit.

In the complaint we have submitted that the CPIO was aware that the Hon’ble Commission had dismissed the justification provided in the Written Submission and yet the CPIO chose to reproduce that justification provided in the ‘revised’ reply. This shows mala fide on part of the CPIO wherein she has deliberately refused to provide information without any reasonable cause and with a reckless intention to obstruct disclosure of information.

We have run from pillar to post to attain the information sought in the RTI application filed in October of 2018 and we have not yet received a proper justification why the information is being denied, let alone the information itself. However, we do not intend to let this matter go without a lawful conclusion.

We believe that the Personal Data Protection Bill (PDPB) is going to be a huge step in the field of your privacy. Whether this is a step forward or a step backward can only be determined through transparency and honesty on the part of MeitY. That is why it is crucial to see the extent of public participation in the drafting of PDPB, and why the MeitY must take a much more proactive approach towards disclosure of information. We will keep you updated on the progress of our complaint.

Important Documents

1. Our complaint to the CIC against the CPIO, MeitY. This also contains the CPIO’s “revised” reply as Annexure C-10 at page 96, and the CPIO’s Written Submissions before the CIC as Annexure C-9 at page 95. (link)
2. Order of the Hon'ble Central Information Commission in the matter of Apar Gupta v CPIO, Department of Electronic & Information Technology (MEITY) dated March 25, 2021 (link)
3. Our previous blogpost dated 2nd April, 2021 titled “CIC observes that IT Ministry's denial on RTI for comments on the Data Protection Bill is, "grossly improper" #SaveOurPrivacy” (link)
4. Part 7 of series of blogposts on the Personal Data Protection Bill, titled “#DataProtectionTop10: State Security and Surveillance”, dated May 25, 2021 (link)