Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
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On November 5, 2020, the High Court of Bombay held that the Ministry of Information and Broadcasting should not have uploaded the personal details of the applicant to its government website following his lodging of an information request under the Right to Information Act, 2005. In this case, the applicant’s personal data (including his name, home address, email address and telephone/mobile number) had been uploaded onto the Indian government website, which caused him immense trauma and public harassment. The Court found that the Ministry’s decision to upload his personal details was unnecessary and made the applicant vulnerable to intimidation and other harassment by the public. Further, the Court held that such disclosure of confidential data was not only a clear breach of the applicant’s privacy, but also defeated the purpose of the Right to Information Act, 2005 by deterring future applicants from filing applications due to fear of public disclosure of sensitive information.
Saket S. Gokhale (the applicant), a former journalist and social activist, has filed multiple Right to Information (RTI) applications to various Indian government departments to expose abuses of power. On October 27, 2019, he applied to the Ministry of Youth and Sports Affairs under the Right to Information Act, 2005 (the Act) seeking details of a recent government campaign. On November 27, his RTI application was transferred to the Ministry of Information and Broadcasting (the respondent).
Soon after the applicant instituted court proceedings on some sensitive social issues, he began receiving unwanted phone calls and threatening messages on his personal phone. A mob also gathered outside his home, shouting slogans. The applicant discovered that his personal details had become available on the Internet. The respondent had uploaded his RTI application to its website, alongside personal details including his home address and telephone number – and this was able to be accessed on the Internet via search engines.
On August 3, 2020, the applicant filed a petition in the High Court of Bombay seeking his personal details to be removed immediately from the Ministry’s website. He also sought damages for the mental distress he suffered from this publication of his personal data. The case was adjourned a month later to enable the applicant to give notice to the respondent but, on September 10, the respondent did not appear in the court hearing. After another notice, the case was adjourned at the request of the respondent on September 25 and October 8.
Justice Nitin Jamdar delivered this judgment for the Court (with Justice Milind Jadhav agreeing). The main issue for consideration was whether the respondent had violated the applicant’s rights under the Right of Information Act, 2005, by uploading his personal details on its website alongside his RTI application.
The parties’ arguments
The respondent filed an affidavit stating that the applicant’s personal data had been removed from its website as of August 1, 2020. The applicant rebutted this claim, stating that his personal information had in fact stayed on the Ministry’s website until September 14.
Secondly, the applicant submitted that he had suffered immense trauma and harassment from “antisocial” members of the public, because the respondent had uploaded his personal details onto their website [para. 5]. This was so despite an office memorandum issued by the Ministry of Personnel on October 7, 2016, stipulating that government departments must not upload the personal details of RTI applicants to its website. The respondent argued that the Ministry was not aware of this memorandum.
Thirdly, the applicant contended that the Ministry had knowingly “[singled] him out” for petitioning against various “sensitive social causes” in India, and thus uploaded his personal details to the Internet on purpose [para. 5]. The respondent argued that it had uploaded 4,474 other applications with personal details included onto its website between October 2016 until August 2020. It submitted that it had only vaguely become aware of the issue in July or August 2020, with reference to an internal letter dated July 31 ordering the respondent to remove all RTI applicants’ personal details from the Ministry’s website. The respondent submitted that this uploading was an “error”, but there had been “no malice or motive” to publish the applicant’s personal details specifically, let alone to “harass him” [para. 10].
Section 6 of the Right to Information Act, 2005 governs the procedure for applicants seeking information from a government department under the Act. An applicant makes a request either in writing or electronically via a website, specifying the information they seek and paying a fee. Per section 6(2), the applicant is not required to give any reasons for requesting the information, nor do they have to give the department any further personal details beyond those necessary for contacting them.
The Court’s reasoning
The Court held that the legal position was “clear” that the “personal details of the applicant under the Act of 2005 should not be uploaded on the website” [para. 9].
The Court referred to Avishek Goenka v. Ashish Kumar Roy (2013) WP No. 33290 (Goenka). In this case, an RTI activist submitted to the High Court of Calcutta that the government should not require the detailed address of an applicant when an RTI application is made under the Act, following “unnatural deaths” of activists – presumably by those who concealed the government information that the activists were seeking to uncover [para. 8]. Considering section 6(2) of the Act, the Division Bench held that the government authority had a duty to hide the personal details of RTI applicants – especially from their website – to prevent the “harassment by persons having vested interests” [para. 8]. The Ministry of Personnel was directed by the Court to circulate its decision on November 20, 2013, to all government departments so that the personal details of all future RTI applicants would be concealed.
A later affidavit showed that the Ministry of Personnel had issued three office memorandums between 2014 and 2016 to all public authorities (including the respondent). The October 7, 2016 memorandum referred to the High Court’s judgment in Goenka and repeated that the personal information of any RTI applicants “may not be disclosed [on a public authority’s website], as they do not serve any public interest” [para. 9] per section 4 of the Act. In particular, it specified that personal details include “name, designation, address, email ID, and telephone no., including mobile no. of the applicant” [para. 9].
The respondent’s knowledge of the office memoranda
The applicant relied on the memorandum dated October 7, 2016, as a clear reference point of when the respondent should have no longer published the personal details of RTI applicants on its website. However, the Court disagreed with this. Instead, it held that because the decision of the High Court of Calcutta had directed the Ministry of Personnel to circulate a copy of its order to “all concerned” on November 20, 2013, the mandate to all government authorities (including the respondent) came into force on the date.
The Court rejected the respondent’s arguments that it had not been aware of the official memorandum of October 7, 2016, until July or August 2020 as “vague” [para. 13]. The Court reprimanded the respondent for failing to provide any specific details as to when they became aware of various official memoranda, stipulating that “[t]here is no such general concept of awareness of a government department. Either the government department receives an official communication, or it was not received” [para. 13]. It further reasoned that the “routine administrative functioning of a government department” meant that there was presumably a specific department or staff member within this Ministry tasked with uploading personal details and other RTI information to the website [para. 13]. The fact that the Ministry of Personnel’s October 7 memorandum contained a footnote stating that the memorandum was circulated to all departments meant it was an “official [act], deemed to have been carried out” [para. 13].
“Singling out” the applicant
The Court held that there was no evidence to prove that the respondent had expressly “singled out” the applicant when publishing his personal details. With reference to the 4,474 RTI applicants that had also had their personal details uploaded to the website, the Court noted that the respondent had failed to answer whether the personal details of all filing applicants had been published (or, consequently, if the 4,474 applicants had their details published for a particular reason).
Nevertheless, the Court observed that this made the matter more serious, as the applicant was clearly not “the only victim of an irregularity.” Rather, the actions of the respondent had breached laws which formed “an essential component of a working democracy” [para. 11].
The importance of maintaining RTI applicants’ privacy
After discussing the factual aspects of the case, the judges elaborated on the importance of maintaining the confidentiality of the personal details of the RTI applicants.
It placed particular importance on objective of the Right to Information Act, 2005, noting that it was intended to create “a practical regime of right to promote transparency and accountability in the working of every public authority” [para. 14]. Allowing citizens to seek information “to contain corruption and to hold governments and their instrumentalities accountable to the governed” is “vital for the functioning of democracy” [para. 14]. As such, echoing the High Court of Calcutta’s reasoning in Goenka, the Court held that uploading personal details of RTI applicants was not only “unnecessary,” but also would “make some of the applicants vulnerable to unscrupulous elements” [para. 15].
Crucially, the Court acknowledged that this issue went further than any “individual breach of the privacy of the applicant and potential likelihood of a risk,” in that it would also negatively impact future RTI applicants and the object of the Act. It raised concerns that the purpose of the Act would be defeated if applicants are deterred from filing applications due to the fear of public disclosure of their personal details. Indeed, the Court warned that “if such large-scale breaches in the field of Right to Information are not taken seriously, the right itself will be trivialized” [para. 16].
The Court held that the respondent violated the applicant’s rights under the Right of Information Act, 2005, by uploading his personal details on its website alongside his RTI application. The respondent filed an affidavit on November 4, 2020, stating that internal action had been taken and the Ministry would no longer upload any personal information regarding RTI applicants to its website. The Court was not satisfied with this and refused to treat the respondent’s behaviour as a “routine internal matter” given the “magnitude of the lapse” [para. 17]. Rather, the Court ordered an inquiry to be conducted by the Secretary of the Ministry (its “highest official”), which may result in “punitive action” against the relevant guilty government employees under applicable government law [para. 17]. The Court noted that, in this public law jurisdiction, damages (such as those claimed by the applicant for mental duress) do not have to follow if a right is breached. Nevertheless, it ordered the respondents to pay the applicant INR 25,000 (approximately USD 340) for his expenses incurred in filing and prosecuting his application.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although it reprimanded the government for publicly disclosing certain information of RTI applicants, the High Court of Bombay nevertheless expanded the right to freedom of expression in this judgment. Significantly, the Court found that the disclosure of sensitive personal data not only impacted the privacy of the applicant by exposing them to potential risk, but also defeated the purpose of the Right to Information Act by deterring future applicants from filing RTI applications due to fear of being targeted by the government. In doing so, the Court emphasized two fundamental rights: the right to privacy and the right to access to information – both key pillars to a functioning democratic society.
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