[RTI] Plea in Delhi High Court challenges Union Home Ministry's refusal to provide information on surveillance

A petition has been filed before the Delhi High Court challenging Union Ministry of Home Affairs’ refusal to provide information on electronic surveillance ordered under Section 69 of the Information Technology Act (IT Act) [Apar Gupta v CPIO, MHA and Ors]..The petition was heard by single-judge Justice Yashwant Verma who gave the Central government counsel two weeks to seek instructions on the matter.This was after the Centre's lawyer argued that any decision in the matter will have an impact on several other cases as well. The counsel said that he will seek instructions and present his case in two weeks or ten days. The bench then listed the case for further hearing on December 2.The petition filed by Apar Gupta, executive director of Internet Freedom Foundation, through advocate Vrinda Bhandari said that the petitioner had in December 2018 filed six applications under Right to Information Act seeking details of number of orders passed under Section 69 of the IT Act between January 2016 and December 2018 granting permission for electronic surveillance.Details were also sought about 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 application also sought information about the date, time and duration of meeting conducted by the Review Committee to review these orders.The petitioner 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/monitor or decrypt is exempted under the RTI.Gupta then approached the First Appellate Authority (FAA) challenging the disposal 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 2009 Interception Rules and therefore, the RTI requests had become infructuous..Gupta then again moved to CIC against the argument that the records have been destroyed and failure of the FAA to interrogate the CPIO on such a claim. He added that similar information has been provided in other RTI applications before and to the Parliament as well.“The upshot of the CPIO’s arguments – if accepted – is that the Government of India maintains no records regarding its authorisation of Electronic Surveillance, which seems highly improbable,” read 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 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.The petitioner also submitted that similar information has been made available on prior occasion and 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 RTI..[Read Petition]