Activists, Information Commissioners Fear Data Protection Bill Will Crush RTI Act Provisions

Several information commissioners point out how the new data law will institutionalise denial of information using the “personal information” provision, and widen the scope of ‘person’ to cover even corporations, firms or states.

New Delhi: Several information commissioners on Tuesday, December 13, in a virtual meeting expressed their concern on how the proposed Data Protection Bill, for which the government has invited public suggestions, is seeking to clip the wings of the Right to Information Act.

They also said that the proposed Bill will give officials the right to deny access to most information.

In a Zoom meeting, former central information commissioner Shailesh Gandhi said he sees a threat to the right to information in the Data Protection Bill.

According to the RTI Act, citizens can access all information, however, there are only 10 types of information which are exempted under Section 8 (1) of the Act, he said. If these exemptions are expanded, the RTI gets constricted, he added.

Of these 10 exemptions, he said, “the most commonly misused exemption is Section 8(1)(j) and accounts for 35% of refusals.”

Section 8 (1)( j ) exempts “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 – provided that the information, which cannot be denied to the parliament or a state legislature shall not be denied to any person”, he recalled.

However, now, he said, “unfortunately, the proposed Data Protection Bill on page 30 [point 30(2)] proposes an amendment to the RTI Act thus: (2) Clause (j) of sub-section (1) of section 8 of the Right to Information Act, 2005 shall be amended in the following manner: (a) The words “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” shall be omitted; (b) The proviso shall be omitted.”

Thus, he said, the amended section would read and exempt: Section 8(1)(j) or “information which relates to personal information”.

‘Personal information’ provision was misused to deny information

He further said that a lot of information is already denied on the grounds of being ‘personal information’, adding that the enactment of the Data Protection Bill will make the Act “right to not give information Act”.

The Bill, he said, will have overriding powers over the RTI Act.

He demanded that the RTI Act should not be touched as this is the first law which makes ordinary citizens the ‘maliks’ or the real rulers instead of the government.

He also spoke about how important information such as details of MLA funds and beneficiaries of PM Cares Fund had been wrongfully denied.

State information commissioner of Madhya Pradesh, Rahul Singh, said that instead of providing more support through transparency to the RTI Act, an attempt is being made to weaken it.

The government must show and prove its reasons for suggesting such an amendment in the RTI Act. “I have strong reasons why this should not be done,” he said, adding that the amendment seeks to make changes to Section 8 (1)(j), “which is one of the most misused provisions of the RTI Act”.

`What constituted illegal denial of information earlier, will be converted to legal denial’

Singh cited examples of several appeals which have come to him in the past in which the provision was used to deny information.

He said one of these cases related to the Public Works Department in which information was sought about bills raised by the contractors where the amount was paid without the work being completed. In another case he said the Education Department refused to share the attendance record of a teacher who had not been coming to school and whose attendance was still being marked. Likewise, the Mining Department refused to disclose information on royalty paid by a mining firm since it had claimed that this was a ‘personal information’.

Also, he said, in one case an officer had two caste certificates but when information was asked for under the RTI Act, it was denied on the ground that it was ‘personal information’.

Gandhi added that the fear is that “what was an illegal denial in many cases, is being converted into a legal denial. An illegal denial of citizen’s fundamental right is being sought to be made legal by altering the law. If this amendment is made all information which can be related to a person may be denied.”

`Data law will trample sunshine legislation’

Another former central information commissioner, Yashovardhan Azad, spoke about how the Data Protection Bill will trample upon the provisions of the RTI Act, which he said was called “the sunshine legislation when it was enacted”.

Azad said the RTI Act provides a preamble for transparency and accountability. “It sought to raise the voice against corruption, bring the corrupt under book. But today a new Bill is coming . We all believe that privacy is important but to pitch it opposite right to information is unfortunate. Article 13 of Constitution says that no executive action or law can be brought that goes against the basic rights of the people. And yet today if we are trying to remove Section 8 (1)(j) and saying that in view of breach of privacy no information will be given, then this would directly impact the people’s right to information.”

“As far as privacy goes,” Azad added, “no information would be provided by the centre or state government as they have all the exemptions – be it on account of sovereignty, inter-government treaties, etc – now for other issues too the information will not be provided citing privacy.”

Azad also pointed out that there is a tendency of secrecy in India. “Even 1962 war details have not been provided after 50 years of the war even though the RTI Act says that any information can be provided after 20 years of an occurrence. Britain released information about World War II after 50 years and this led to book on India’s freedom struggle, Liberty or Death: India’s Journey to Independence, by Patrick French.”

`SC ruling on collegium discussion will be misused to deny access to notesheets’

The former CIC also recalled how “in reply to a RTI query, the Supreme Court said we will not provide details of collegium discussions. On the other hand the Government is bound to provide the notesheet which has the opinions of all the officials. So this means, that by taking cognisance of the SC’s direction, the government will also start refusing the notesheet.”

As such, Azad asked “if people do not have the right to know what loss happened due to a corrupt  action of and official or government. This Bill says that information will not be provided.” The former CIC said, if need be, the courts will be approached to protect the right of information of the people.

Former state information commissioner, Madhya Pradesh Aatmdeep said there are four provisions in the Data Protections Bill which are “not only unnecessary but will hit RTI Act. He said these provisions “remove the difference between personal data and personal information”.

`All kinds of information will be hidden now’

Aatmdeep said the RTI Act says the Act will have overriding influence over all other acts. But this Bill changes that provision. He said while the Supreme Court has stated that the Data Protection Bill is important, it should be enacted in a way that it does not adversely impact the transparency laws. In this regard the former SIC said while Section 8(1)(j) says no information would be provided in some cases barring when it is in larger public interest, the new Bill changes this provision. Also, he lamented that it does away with the provision which stated that information which cannot be denied to Parliament or a State Assembly will not be denied to an appellant.

“The new Bill has not defined personal data and so it would lead to a situation where all kind of information will be hidden. So we demand that these four provisions be withdrawn and RTI Act not be touched at all,” he said.

Aatmdeep also spoke about how Section 12 defines a person in Data Protection Bill. He said since the bill defines ‘person’ at Section 2 (12) to be “(a) an individual; (b) a Hindu Undivided Family; (c) a company; (d) a firm; (e) an association of persons or a body of individuals, whether incorporated or not; (f) the State; and (g) every artificial juristic person, not falling within any of the preceding sub-clauses”, so the privacy law would cover all kinds of people and organisation.

`Data protection law will allow levy of heavy fines for violation of privacy’

Stating that people will be punished for acquiring, sharing or publishing such personal information, Aatmdeep said third party information will also get impacted and now even companies will be exempted from sharing information.

Gandhi added that the proposed fine for violation of the data protection law will be up to Rs 500 crore. He added that “most information relates to a person and hence the law would become a Right to Deny for PIOs who do not wish to give information”.

Former chief secretary and chief information commissioner of Maharashtra, Ratnakar Gaikwad, said there is no judicial will or political will to uphold the people’s right to information. “This is all supporting corruption,” he said, while referring to the Data Protection Bill’s impact on the RTI Act.

Gaikwad added that civil society organisations will have to play a significant role in ensuring that the adverse changes do not take place.