Joint statement by RTI and privacy activists on the amendments to Section 8(1)(j) of the RTI Act in context of proposed Data Protection Bill

Joint statement by RTI and privacy activists on the amendments to Section 8(1)(j) of the RTI Act proposed by the Committee of Experts under the Chairpersonship of Justice B. N. Srikrishna The Right to Information (RTI) and the Right to Privacy (RTP) are fundamental rights flowing from the Indian Constitution. The State has an obligation to protect and promote both rights. To strengthen democracy and constitutional freedoms, it is critical that the two rights be carefully balanced. The Justice Srikrishna Committee, tasked with drafting the Data Protection Bill was therefore expected to develop a framework harmonizing the need to protect certain kinds of personal data with the provisions of the Right to Information Act, 2005, which lays out the statutory framework for Indian citizens to access information, including personal information. However, the Draft Data Protection Bill, 2018 (DPB) prepared by the committee, fails to safeguard and balance the two. If accepted, the amendments proposed to the RTI Act, 2005 through the DPB will severely restrict the scope of the RTI Act and adversely impact the ability of people to access information. Section 8(1)(j) of the RTI Act, 2005 states: “8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- xxx (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:” However, the exemption is not absolute and information has be disclosed if it is such that cannot be denied to the Parliament or a State Legislature (proviso to 8(1)), if public interest in disclosure outweighs the harm to the protected interests (section 8(2)) or if the information relates to any event or matter which has taken place twenty years ago (section 8(3)). The Justice Srikrishna Committee has proposed that Section 8(1)(j) be amended to read as follows1: “8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- xxx (j) information which relates to personal data which is likely to cause harm to a data principal, where such harm outweighs the public interest in accessing such information having due regard to the common good of promoting transparency and accountability in the functioning of the public authority; Provided, disclosure of information under this clause shall be notwithstanding anything contained in the Personal Data Protection Act, 2018; Provided further, that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Explanation: For the purpose of this section, the terms “personal data” , “data principal” and “harm” shall have the meaning assigned to these terms in the Personal Data Protection Act, 2018.” Currently, in order to invoke section 8(1)(j) to deny personal information, atleast one of the following grounds has to be proven- information sought has no relationship to any public activity; or information sought has no relationship to any public interest; or information sought would cause unwarranted invasion of privacy and PIO/appellate authority is satisfied that there is no larger public interest that justifies disclosure. By replacing this with the proposed formulation that personal information would be exempt if it can be shown that disclosure is likely to cause harm and such harm outweighs public interest, the DPB seeks to severely curb the disclosure of information. It is crucial to note that the proposed amendments refer to a mere possibility of harm, rather than a reasonable certainty. Further, the definition of the term “harm” which is sought to be applied to section 8 of the RTI law, is very broad. This would have a chilling effect on the RTI Act. The term “harm” is defined as “(i) bodily or mental injury; (ii) loss, distortion or theft of identity; (iii) financial loss or loss of property, (iv) loss of reputation, or humiliation; (v) loss of employment; (vi) any discriminatory treatment (vii) any subjection to blackmail or extortion; (viii) any denial or withdrawal of a service, benefit or good resulting from an evaluative decision about the data principal; (ix) any restriction placed or suffered directly or indirectly on speech, movement or any other action arising out of a fear of being observed or surveilled; or (x) any observation or surveillance that is not reasonably expected by the data principal.” Finally, the scope of the public interest test within the proposed section 8(1)(j) appears to have been narrowed, by restricting it primarily to the promotion of transparency and accountability in the functioning of a public authority, as opposed to a more expansive understanding of public interest in terms of upholding constitutional values of social justice, welfare and democratic rights of citizens. The proposal to amend the RTI Act through the Data Protection Bill, 2018 appears to have been hastily drafted based on an incorrect understanding of the RTI law. For instance, the Justice Srikrishna committee seems to have erred in interpreting the proviso to section 8(1), which states that “information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”, as being only applicable to section 8(1)(j) and not to the whole of section 8(1). A perusal of the original gazette notification of the RTI Act2 shows that by virtue of its placement and indentation, it is applicable to all of section 8(1) and not merely section 8(1)(j). There are several judicial pronouncements3 to this effect. The amendments proposed to the Right to Information Act, 2005 through the Data Protection Bill, 2018 drafted by the Justice Srikrishna Committee will fundamentally weaken the RTI Act for the reasons highlighted above. It is pertinent to note that since the constitution of the Justice Srikrishna Committee, many of us have highlighted our concerns related to the lack of diversity in the composition4 of the committee and also the lack of transparency5 in the functioning of the committee. Proper composition of the committee and transparency in its functioning were crucial to ensure that a robust regime for data protection was created without undermining peoples’ right to information. We believe that the legal framework for privacy and data protection should complement the RTI Act and in no way undermine or dilute the existing statutory framework that empowers citizens to hold power structures to account. The provisions of the Draft Data Protection Bill need to be suitably amended and harmonized with the provisions and objectives of the RTI Act. This would be in line with the recommendation of the Justice A.P. Shah Report on Privacy (2012) that, “The Privacy Act should clarify that publication of personal data for in public interest, use of personal information for household purposes, and disclosure of information as required by the Right to Information Act should not constitute an infringement of Privacy.” Neither the recognition of the Right to Privacy, nor the enactment of a data protection law, requires any amendment to the existing RTI law. We, therefore reject the amendments proposed to the Right to Information Act, 2005 in the Data Protection Bill, 2018 drafted by the Justice Srikrishna Committee Signed for Save Our Privacy by Vrinda Bhandari, Naman M. Aggarwal, Gautam Bhatia and Raman Jit Singh Chima. Signed for National Campaign for Peoples’ Right to Information (NCPRI) by Anjali Bhardwaj, Venkatesh Nayak, Nikhil Dey, Rakesh Dubbudu, Ashish Ranjan, Pradip Pradan, Rakshita Swamy, Sai Vinod and Nachiket Udupa. 1No amendment is sought to be made to sections 8(2) or 8(3) of the RTI Act. 2https://cic.gov.in/sites/default/files/RTI-Act_English.pdf 3See judgment in Union of India & Ors. Versus Col. V.K. Shad WP (C) 499/2012 by the Delhi HC; Hindustan Petroleum Corporation Ltd. Versus The Central Information Commission and Ors. Civil Writ Petition No. 1338 of 2011 by the Punjab & Haryana HC; The Registrar General vs R.M.Subramanian on 14 June, 2013 by the Madras HC 4The Committee had a preponderance of members who have voiced, or echoed views, that seem to support Aadhaar and did not include any individuals with expertise in the field of RTI – Letter sent to Committee about this. 5Crucial information, including minutes of meetings of the Committee and presentations and submissions made to it, were not proactively disclosed and were in fact denied to citizens in violation of the provisions of the RTI Act. - Letter to Minister Ravi Shankar Prasad about this.

Memorandum for Dismissal of Bikram Senapati, Odisha Information Commissioner

To Sri Jalada Kumar Tripathy State Chief Information Commissioner, Odisha, Toshali Bhawan ,Satyanagar Bhubaneswar Sub- Seeking an inquiry into allegation of misbehavior, harassment, show of arrogancy and use of filthy language to the complainants/ appellants during hearing of Complaints/ Second Appeals by Sri Bikram Senapati, State Information Commissioner and initiate legal proceedings against him under section 15 (1) of the RTI Act and recommend to Hon’ble Governor, Odisha for his dismissal under section 17 of the RTI Act. Respected Sir With due respect humble and submission , we the RTI Activists having allegiance to Odisha Soochan Adhikar Abhijan, ( a state level RTI forum leading campaign for effective implementation of RTI Act in Odisha ) gather together while conducting protest Dharana on 2.12.22 at Toshali Bhawan, Bhubaneswar and draw your kind attention the following allegation against Sri Bikram Senapati ,State information Commissioner for your urgent intervention and necessary action. Sir, Sri Bikram Senapati, joined as State information commissioner on 09.09.2020 at Orissa Information Commission. During his incumbency period since 2020 till date, he has disposed of around more than 95 % of cases without imposing penalty and ensuring information to the information-seekers. As we have experienced, during hearing of the cases, neither he listens appellant pleasantly and calmly nor does allow them to complete their argument properly . Even from ab initio he has maintained same strategy to misbehave information seekers during argument, encourage PIO not to furnish information , argue in favour of defaulting PIO , threaten information seeker using slang language , ask appellants to move high court against his mischief and disposal of cases without any penalty and non-supply of information . Many times he like anti-social uses very filthy and unconstitutional language to the appellant and senior citizens. Like other Information Commissioners, he is not sociable and behaves as criminal. During hearing without looking at the information need of the information seekers, he simply asked and made query like “why you had applied for information? What will you do with this information? You people are making deals to get money by filling multiple RTI Applications, who said you to seek information” and continues to misbehave and threaten them. He always discourages appellant not to ask information to various Govt offices and asks the reason for seeking information. He has very hatred attitude towards Dalit Community and makes caste aspersion using abusive languages against them. Here we are citing some of his cases where Sri Bikram Senapti disposes case in a most callous and dishonest way without ensuring information to the appellant a. Case No- S.A. 2325/2020, dt 02.11.2022 - Appellant Amuly Kumar Majhi , an RTI activist and belongs to depressed section of society. During hearing of his case Bikram Senapati asks him with loud voice to get out from his chamber as you have already received some information. When Sri Majhi insisted for complete information, Mr. Senapati abused him with vulgar language saying you are pimp, collecting money for maintaining your family, rascal, how dare you to argue with me. You don’t have other work to do instead seeking information? Who said you to seek information ? How many corruption you have exposed collecting information, come with that then I will order for complete information. He abuses him in the name of his caste and casteist remark. Amulya Majhi has lodged an FIR against Bikram Senapati at Kharvel Nagar Police Station, Bhubaneswar seeking an inquiry into the allegation. He has also filed a petition before Hom’ble Governor, Odisha seeking action against Sri Bikram Senapati. b. Case No. SA.1507/2020, dt.30.06.2022 - RTI Activist Prakash Das appeared on behalf of appellant Sri Akshaya Prusty . During hearing Sri Senapati said that he would not hear any case even single word from you. When Prakash Das asked about the reason, he said wont record any statement from you and reason is well known to you and me. Again when Prakash Das asked whether any decision had been taken not to hear my cases, Mr Senaapti said I instructed means you have to leave without any rhyme & reason. Main intention behind his misbehavior is that Prakash Das has earlier heard two cases before him vide CC. 158/2020 & 159/2020 where Bikram Senapati arbitrarily disposed off his case without any penalty and misbehave him willfully. c. Case No. SA.1440/2020 , dt 30.06.2022 where appellant was Dusmanta Narayan Acharya .He was fighting his case of Second Appeal against denial of information by the PIO, Office of ICDS office ,Rajkanika of Kendrapara district . During his hearing Bikram Senapati took the side of defaulting PIO supporting his argument. To counter Mr Senapati’s dig at him, he presented his argument, but Bikram Senapati misbehaved him and used derogatory words against Sri Dusmanta. Even he threatened Dusmanta to dare to move to high court and supreme court and President of India against his Order. He said no one will do anything against him. I will do whatever I want. Without ensuring information, he disposed off this case. d. Case No. SA. ……………………..dt………………….where appellant was Sanjay Mohapatra . He was heard second appeal case about a primary school near by his house. RTI Activist Srikant Pakal was present with him to assist him. When Sanjaya Mohapatra presented his argument of not getting complete information and Srikant Pakal endorsed Mohapatra’s view stating most and priority duty of Information Commissioner is to first ensure information . but Mr senapati argued when PIO said he had given information. Sri Senapati said when information is supplied why you are arguing with me. then whya re you arguing with me . Mr Senapati neither verified the information and nor tried to understand the concern of appellant. Rather Mr Senapati misbehaved Srikant Pakal and Sanjaya Mohapatra both . Threatened to get out from the court. Even in his order Mr Senapati disposed of case with the order that Mr Pakal had threatened him of dire consequence during hearing, without any action and penalty. He disposed off the case with no order except allegation against appellant. e. Similarly in case of RTI Activist Manoran Jena , Jitendra Sahoo from Cuttack , Ashok Dutta from Balasore , Praksh jena from Bhadrak and many other activists , Bikram Senapati disposed off the case with allegation against appellant citing petty reason and misbehaved them. He also scolded appellant with derogatory words and unparliamentarily language , threatened them to go and file case in High Court, endorsing view of defaulter PIO and advocating in support of them . As an Information Commissioner, Mr Bikram Senapati does not have minimum respect to Right to Information act and its rule, never referred various orders of CIC and other information Commissioners. He has never delivered a single exemplary order where a defaulter PIO and appellate authority will take it serious and congnisance against him . Out of his total disposal of SA & Complaint cases, in more than 95% of cases he disposed off all case without penalty and ensuring information. Even in many order, he has levelled allegation against appellant without delivering the order as per the act to be framed for a commissioner. Every day he misbehaves and shouts with shroud voice to gullible information-seeker . suggested them to move to High court against him, warning them with dire consequence and not to use RTI act against Govt . He levelled RTI activists as blackmailer , tarnished their image with derogatory words . everyday many complaints are raising against him . Hence we request your Good office to conduct an inquiry against his all disposal cases and his conduct as an information commissioner under section 15 (1) of the RTI Act. We also request you to recommend to Hon’ble Governor, Odisha for dismissal of Sri Bikram Senapti from the post of State Information Commissioner under section 17 (3)(d) of the RTI Act Yours sincerely Members of Odisha Soochana Adhikar Abhijan ( OSAA) Date- 2.12.22

Personal Data Protection Bill will amend RTI Act

https://www.livelaw.in/news-updates/digital-personal-data-protection-bill-proposes-to-amend-rti-act-to-completely-bar-disclosure-of-personal-information-214573