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.