Delhi High Court seeks Centre's response in plea seeking disclosure of information on e-surveillance

The Delhi High Court on Tuesday asked the Central government to file its response in a petition seeking details about state-sponsored electronic surveillance under the Right to Information (RTI) Act. [Apar Gupta v. Central Information Commission, Ministry of Home Affairs].Justice Yashwant Varma asked Central Government Standing Counsel Anurag Ahluwalia to file a reply. The matter will be heard next in two weeks..Appearing on behalf of the Centre, Ahluwalia also apprised the Court that the present petition dealt with a challenge to the new policy that came on May 16, by way of an order issued by the Central Information Commission (CIC)..The petition was filed by lawyer and Executive Director of Internet Freedom Foundation Apar Gupta, who in December 2018 filed six applications under the RTI Act seeking details on the number of orders passed under Section 69 of the Information Technology Act between January 2016 and December 2018 which granted permission for electronic surveillance.Details were also sought on the number of requests received from various agencies for electronic surveillance, the number of requests that were not approved or rejected, as well the number of requests where surveillance was requested for a period of more than 15 days, among several other details. The applications also sought information about the date, time and duration of meetings conducted by the Review Committee to review these orders.In his plea, Gupta said that he had only asked for an anonymised and aggregate figure “to understand the extent of state surveillance” and no personally identifiable information was sought. The Central Public Information Office (CPIO), however, disposed of the request, arguing that disclosure of information related to lawful interception/phone tapping/monitoring or decryption is exempted under the RTI Act.Gupta then approached the First Appellate Authority (FAA) challenging this order. However, the FAA refused to intervene. He then filed a second appeal before the Central Information Commission (CIC). The CIC agreed that the information sought were only statistical details and remanded the matter to the FAA “to revisit the cases, re-examine issues raised, and to decide the cases with a reasoned speaking order after hearing both parties.”The petition said that the CPIO argued before the FAA that information about surveillance was no longer available, because records are destroyed every six months as per the provisions of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, and therefore, the RTI requests had become infructuous.Gupta then again moved the CIC against the argument that the records have been destroyed. He added that similar information has been provided in other RTI applications filed before and to Parliament as well..The CPIO's argument that the Government of India maintains no records regarding authorisation of electronic surveillance is highly improbable, Gupta argued in the petition.“Even the destruction of the records mandated under Rule 23 of the 2009 Interception Rules in respect of the security agencies and the intermediaries which facilitated the interception do not, and cannot, extend to the aggregate and statistical data regarding the total number 43 of interceptions conducted which was sought by the Petitioner. The records for which destruction is mandated relate to the identity, extent and particulars of the person whose communications are being intercepted and monitored, as well as the intercepted communication itself,” the petition filed through Advocate Vrinda Bhandari further argued..Gupta has now told the High Court that even though he approached the CIC challenging the order of the FAA yet again, and though an application for urgent hearing has also been filed, hearing is yet to take place on his appeals.He also submitted that disclosure of such information is in utmost public interest. The petition also said that if the information has indeed been destroyed, then such conduct is illegal.“FAA gravely erred in unhesitatingly accepting the Respondent Nos. 1 and 3’s claim that information sought by the Petitioner was no longer available and weeded out periodically, and further erred in failing to penalise the said Respondents for the ex facie illegal conduct of destroying information relevant to an RTI during pendency of proceedings,” the petition said.The petition has also asked the Court to frame guidelines against destruction of information sought under the RTI Act.