CENTRAL INFORMATION COMMISSION
Appeal/Complaint Nos. CIC/WB/C/2008/0169 & 378
and WB/A/08/271 dated 15-2-2008
Right to Information Act 2005 – Section 18 & 19
Appellant: Shri Shib Shankar Paul
Respondent: National Security Council Secretariat (NSCS)
FACTSThese are three appeals concerning four requests dates ranging from 12-11-07 to 26-2-08 of appellant Shri Shib Shankar Paul, at present in Central Jail, Tihar, New Delhi submitted to the CPIO & Under Secretary, National Security Council Secretariat (NSCS) seeking information on search and investigation resulting in his arrest and detention. These have been processed under the following files in this Commission:
i) CIC/WB/C/2008/00169
ii) CIC/WB/C/2008/00378 and
iii) CIC/WB/A/2008/00271
In the above three cases we find that the requests processed in file No. CIC/WB/C/2008/00378 are the same as those in file No. CIC/WB/C/2008/00169. In the first file the complaint has been moved for failure to receive a response, subsequently received resulting in the complaint at (ii), whereas in the third responses have been received on each request and 1st appeal resorted to, the orders on which were found unsatisfactory by appellant Shri Paul.
In file Nos. CIC/WB/C/2008/00378 and CIC/WB/C/2008/00169 appellant Shri Paul has moved three requests for information before CPIO, NSCS on 18th and 26th February, 2008.
In the application of 18-2-08 Shri Paul had sought the following information:
“(a) NSCS had accorded the sanction on behalf of the Central Government in accordance
with section 197 Cr.PC, 1972 vide NSCS letter No. C-11017/1/2006-Admn dated 14.12.2006 to prosecute me in the above mentioned case. Please provide the photocopy of the letter of special cell, New Delhi, seeking the sanction u/s 197 Cr.PC from NSCS and also the reply covering letter of NSCS, through which the aforesaid sanction was granted.
(b) Photocopy of the file notings, based on which the sanction for u/s 197 Cr.PC been accorded. As my personal liberty is at stake, I therefore request that this information be provided for my defence within 48 hrs of receipt of this letter in accordance with section 7 (1) of RTI, 2005.”
In the first application of 26-2-08 appellant sought the following information from CPIO, NSCS:
“a. During my tenure in NSCS, with the help of information available on the website of CETR-IN, I had drafted an Information Security Policy for NSCS which was get implemented. This is not a classified document, as it was to be circulated even to non-gazetted staff for its optimum implementation. All officers of NSCS were provided one copy each for them and their staff. Please provide the copy of Information Security Policy as mentioned above. b. After prolonged deliberation with STQC (Standard Training Quality Certification) of Department of Information Technology (MC&IT), I had sought their help to undertake information security audit. Please provide copy of the letter to STQC, sent around April-May-June 2005. This is also not a classified document as this letter was just duplication of what had been sent through e-mail according to STQC policy. And according to government policy no classified information can be sent through email.” In the second application of 26-2-08 following is the information sought:
“(a) NSCS had accorded the sanction behalf of the Central Government in accordance with section 197 Cr.PC, 1972 vide NSCS letter No. C-11017/1/2006-Admn dated 14.12.2006 to prosecute me in the above mentioned case. Please provide the photocopy of the letter of special cell, New Delhi, seeking the sanction u/s 197 Cr.PC from NSCS and also the reply covering letter of NSCS, through which the aforesaid sanction was granted.
(b) Photocopy of the file notings, based on which the sanction for u/s 197 Cr.PC been accorded. As my personal liberty is at stake, I therefore request that this information be provided for my defence within 48 hrs of receipt of this letter in accordance with section 7 (1) of RTI, 2005.”
In his application dated 12-11-07 of file No. CIC/WB/A/2008/00271 Shri Paul sought the following information from CPIO, NSCS:
“(a) Information relates to the undersigned, who was working with your organization as Sr. System Analyst from 14.09.2001 to 10.06.2006. His Human Rights are being violated as he is in judicial custody in a false case (FIR No. 42/06) by Special Cell, New Delhi.
(b) Please provide information on search carried out of his office on 9.6.2006 and 10.06.2006.
(c) Please confirm his room/cabin was sealed on 9.6.2006 onward.
(d) Please confirm as to whether his office computer and files were looked into by any search party on 9.6.2006 and 10.6.2006.
(e) Please attach file noting and documentary evidence of these searches.
As personal liberty of the undersigned, erstwhile Sr. System, Analyst, NSCS is at stake, the undersigned is, therefore, request that this information be provided within 48 Hrs on receipt of this letter in accordance with Section 7 (1) of Right to Information Act, 2005.”
In file No. CIC/WB/C/2008/00378 the application of 18-2-08 was replied through a letter of 18-3-07 from Shri G. Rajeev, CPIO & Under Secretary, NSCS refusing the information sought u/s 8 (1) sub-section (a). This was repeated in reply to the applications of 26-2-08 both of which were replied to by CPIO Shri Rajeev on 18-3-08. In these three cases the prayer of appellant before this Commission is as follows:
“(a) The Central Information Commission prevails upon Shri G. Rajeev, CPIO of NSCS to provide me the information as sought by me in all these applications under RTI Act 2005.
(b) Take appropriate action against the Central Public Information Officers of NSCS for denying me information’s with malafide intent, especially when my personal liberty is at stake and my Human Rights are violated through this false and fabricated case FIR No. 42/2006 of special cell.”
In the case in file No. CIC/WB/A/2008/00271 the information was refused by CPIO, Shri Rajeev on 22-11-07 u/s 8 (1) (h) of the RTI Act pleading ongoing investigation. In this case Shri Paul moved his first appeal before Shri Rohit Khera, Jt. Secretary, NSCS pleading as follows:
“The case FIR No. 42/2006 has already completed the investigation and submitted Charge Sheet on 8.9.2006. The supplementary Charge Sheet was submitted on 13.10.2006.
Thus no investigation is in progress in the case.”
However, 1st Appellate Authority Shri Rohit Khera JS (A) in his order of 22-1-08 dismissed the appeal u/s 8 (1) sub-section (g) as disclosure, in his view “is likely to reveal the sources relied upon during the enquiries against him, which will have adverse implications on national security”.
In this case appellant’s prayer before us in his second appeal is as below:
“(a) Call for the records of the NSCS on the subject matter.
(b) Order CPIO, NSCS to provide complete and ful information as sought by me in my RTI request lette dated 12.11.2007 (Enclsoure-1).
(c) Impose appropriate penalties and disciplinary action against the CPIO, NSCS as envisaged under section 20 (1) and 20 (2) of the RTI Act, 2005. it is because of the malafide denial of information, I could not secure bail and my personal liberty continues to be curtailedin this false case.
(d) Any other orders/ direction (s) as considered appropriate in view of the peculiarities of this case.”
All cases were heard on 16-7-2008 at Central Jail, Tihar, New Delhi.
The following are present:
Appellant
Shri Shib Shankar Paul.
Cdr (Retd) Mukesh Saini.
Respondent
CPIO Shri G. Rajeev, Under Secretary (Admn), NSCS.
In the meantime we received a request from Shri G. Rajeev, Under Secretary (Admn.) & CPIO, NSCS submitting that Shri V.K. Mall, IPS, Director, NSCS was the officer coordinating with the investigating agency to investigate the case as nodal officer. He has since reverted back to his cadre Gujarat as IGP since 23rd May, 2008. His assistance was requested in hearing the case for which adjournment was requested. We have in the hearing however heard the appellant.
Appellant Shri Paul has invited our attention to a report in the Hindustan Times of 26th May, 2007 in which it has been reported as follows:
“According to an NSCS official, when the IB, which broke the case, arrived to question Paul on June 9, he cooperated with them explaining the file retrieval and firewall system he had set up for the organisation. He came early the next day, Saturday to assist them further.”
He has, therefore, submitted that the order in this case of the 1st Appellate Authority in which despite his cooperation and although the investigation has been completed and charge sheet submitted, he has still not been provided information on grounds of exemption sought u/s 8 (1) (g).
He further submitted that NSC had been misled by a fake report by the police, which he can establish provided he is given the information that he seeks, created by himself during his service with the NSCS. Shri Paul also submitted a file providing detailed response to each question raised through the processing of his application.
Having heard the appellant Shri Shib Shankar Paul the hearing was adjourned to 6-8-08 At 4.30 P.M. when Shri V.K. Mall, presently, IGP, Gujarat would appear before us. In doing so he was directed to take care to have first studied the judgment of Justice Ravindra Bhat in W.P. No. 3114/2007 of the Delhi High Court in Bhagat Singh vs. CIC while seeking exemption under any of the provisions of Section 8 (1) to the disclosure of information sought by appellant Shri Paul. He was also directed to bring with him the requisite file so as to satisfy us that there is ground for the plea taken u/s 8 (1) sub-section (g).
According to our decision of 16.7.08, the following appeared before us on 22.9.2008 at 1.00 p.m. :
Respondents
Sh. V. K. Mall, IGP Govt. of Gujarat
Sh. G. Rajeev, US(A), NSCS
Shri V. K. Mall IGP, Govt. of Gujarat submitted that all the documents that he held with regard to the case of Shri Paul have been transferred to the HO, NSCS. He further submitted that his role in this case, having joined the NSCS after the arrest of appellant Shri Paul was more in the nature of a post office. He, therefore, had no fresh information to disclose. Mr. G. Rajeev US (A) submitted a copy of the Information Security Policy circulated within the NSCS by Joint Secretary Shri Arvind Gupta on 6.7.05. Although he agreed this policy was not marked confidential, it was only for internal circulation within the public authority.
On the application of 26.2.08, while, therefore, a copy of the Information Security Policy has been submitted, the letter to STQC of Department of Information & Technology was also sought regarding which Shri Rajeev stated that the office of NSCS has no record.
He also submitted a copy of correspondence indicating that the NSCS has moved for inclusion in the Second Schedule of the RTI Act, 2005,, a proposal which is now before the highest authorities.
In his application of 18.2.08 Shri Paul had asked for a photocopy of visitors register dated 5.6.06 to 10.6.06. Shri Rajeev, while submitting the register for our inspection, pleaded that disclosure of such information would disclose the names of the visitors to the NSCS, which could compromise
national security and, therefore, has been refused u/s 8(1)(a). He offered to provide the information regarding any specific entry that appellant sought.
With regard to the second application of 26.2.08 and the application of 12.11.07 in File No. CIC/WB/A/2008/00271 Shri Rajeev submitted that he would submit the documents on the following date. The hearing was, therefore, adjourned to 23.9.08 at 10.00 a.m. On 23-9-08 the following appeared before us, together with relevant records:
Respondents:
Shri Rohit Khera, Jt. Secretary, NSCS
Shri G. Rajeev, US (A), NSCS
File No. CIC/WB/A/2008/00271
We examined the records. In this case a report has been received from an organisation exempted from the Act on 8.1.2008. However, there is a police report of 7.1.2008 in which each question raised by appellant Shri Paul has been answered by the DCP Special Cell in letter addressed to DCP (HQ), Delhi Police.
On the first request of 26.2.2008 the information sought by appellant and the documents inspected relevant thereto can be categorised as follows:-
Photocopy of the letter of Special Cell, New Delhi seeking sanction u/s 197 Cr.PC. The letter of concern is of 13.9.2006 to DCP HQ from DCP, Special Cell.
Covering letter of NSCS through which aforesaid sanction was granted. This is a letter of 14.12.2006 from Director (Adm) NSCS to DCP (HQ) Delhi, Shri H. N. Meena.
Photocopy of the file noting based on which sanction u/s 197 Cr.PC has been accorded.
Page 1 of the noting seeking the sanction refers to a communication received from an organization exempt u/s 24 (1) of the RTI Act. This reference is at page 1 of the noting. However, the remaining part of the noting is the noting between NSCS and PMO on pages 2, 3, & 4 in which there is only a passing reference to the above mentioned exempted organisation.
DECISION NOTICE
Having examined the records and heard both parties we hereby direct as follows;-
1. File No. CIC/WB/A/2008/00271
In this case the information sought is forthright and a response to each question has, in fact, been received from the Delhi Police. This response does not contain any information that could identify and thus compromise the security of any person. The decision of Shri Rohit Khera, JS (Admn)
and 1st Appellate Authority on 22.1.2008 in this matter is, therefore, set aside. CPIO Shri Rajeev will provide a copy of the police report to appellant Shri Shiv Shankar Paul within 10 working days of the date of receipt of this decision notice.
2. In the 3 applications considered in file No. CIC/WB/C/2008/00378 and IC/WB/C/2008/00169 our decision is the following in respect of each:-
a) Application of 18.2.2008. In this case we agree with respondents that the names of visitors to the NSCS, which as the name of this public authority implies is the apex security agency in the country would decidedly compromise national security and merits exemption from disclosure u/s 8 (1) (a). However, as offered by CPIO, if there is any specific individual regarding whose visit appellant would wish to enquire it would be open to him to communicate the same to the CPIO Shri Rajeev who will examine disclosure of this information in the context of this subsection. The action of CPIO refusing information on this request is, therefore upheld with the above qualification.
b) In application of 26.2.2008 in which copy of the information on Security Policy has been received, this document is not even marked ‘confidential’. We have examined this policy in some detail; it has several sub-heads namely physical security, fire protection, prevention of computer misuse, advice on selecting passwords, media management, media movement, back up of data, measures to handle computer virus, hardware and software maintenance, purchasing and licensing of hardware and software connectivity, network administration, inventory, internet services, browsing safely, using caution with e-mail attachments, reducing Spam, chain letter (hoaxes and urban legends) and protecting privacy.
These are all general principles of computer management. Eminently advisable to any user of a computer to adopt. It is a policy obviously designed to rain those not highly computer literate, to maintain a level of security of the data that they have stored. There is nothing whatever in this policy document which could compromise National Security. A copy of this document will, therefore, be provided to appellant Shri Paul within 10 working days of the date of receipt of this decision notice.
However, since the information sought in the second question of the same application, which is the correspondence with STQC is not held by the NSCS, this cannot be supplied.
c) On the second application of 28.2.2008, part of the information sought by appellant can be considered security sensitive. It is, therefore, after examination decided as follows:-
The letter of Special Cell New Delhi in which prosecution is recommended u/s 197 Cr.PC from NSCS contains details of the internal functioning of the NSCS. It also describes the manner in which an employee in such an agency can be inveigled into compromising security. During the hearing Shri Rohit Khera reiterated that the NSCS being a premier security agency of the country is cautious in disclosing any aspect of its internal functioning. Disclosure of this information, in his view, would disable efforts initiated to strengthen the security of the agency exposing loopholes to espionage agencies interested in penetrating the NSCS. Having examined these records we are ready to subscribe to the view that disclosure of this letter could amount to such a compromise. However, the covering letter of NSCS through which the aforesaid sanction was granted which is the letter of 14.12.2006 from the Director (Admn), NSCS to DCP, (HQ), Delhi Shri H. M. Meena, also sought by appellant Shri Paul, on the other hand contains no such sensitive information and can be disclosed.
Similarly we have examined the photocopy of file noting. Applying the principle of severability u/s 10(1) we find nothing in pages 2, 3, and 4 of the file noting which could in any way infringe on national security. Therefore, severing page 1, which refers to the recommendations received from an exempted organisation, information furnished by which to Government is exempt from disclosure u/s 24 (1), the remaining file noting may be provided to appellant Shri Shiv Shankar Paul. As in a & b above the information directed to be disclosed with regard to this case also be provided to the appellant within 10working days of the date of receipt of this decision notice.
The appeal is thus allowed in part. There will be no cost. However, since the information now directed to be disclosed was not disclosed within the time limit mandated u/s 7(1), this will, therefore be provided free of cost u/s 7(6)
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
23-9-2008
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar)
Joint Registrar
23-9-2008
Appeal/Complaint Nos. CIC/WB/C/2008/0169 & 378
and WB/A/08/271 dated 15-2-2008
Right to Information Act 2005 – Section 18 & 19
Appellant: Shri Shib Shankar Paul
Respondent: National Security Council Secretariat (NSCS)
FACTSThese are three appeals concerning four requests dates ranging from 12-11-07 to 26-2-08 of appellant Shri Shib Shankar Paul, at present in Central Jail, Tihar, New Delhi submitted to the CPIO & Under Secretary, National Security Council Secretariat (NSCS) seeking information on search and investigation resulting in his arrest and detention. These have been processed under the following files in this Commission:
i) CIC/WB/C/2008/00169
ii) CIC/WB/C/2008/00378 and
iii) CIC/WB/A/2008/00271
In the above three cases we find that the requests processed in file No. CIC/WB/C/2008/00378 are the same as those in file No. CIC/WB/C/2008/00169. In the first file the complaint has been moved for failure to receive a response, subsequently received resulting in the complaint at (ii), whereas in the third responses have been received on each request and 1st appeal resorted to, the orders on which were found unsatisfactory by appellant Shri Paul.
In file Nos. CIC/WB/C/2008/00378 and CIC/WB/C/2008/00169 appellant Shri Paul has moved three requests for information before CPIO, NSCS on 18th and 26th February, 2008.
In the application of 18-2-08 Shri Paul had sought the following information:
“(a) NSCS had accorded the sanction on behalf of the Central Government in accordance
with section 197 Cr.PC, 1972 vide NSCS letter No. C-11017/1/2006-Admn dated 14.12.2006 to prosecute me in the above mentioned case. Please provide the photocopy of the letter of special cell, New Delhi, seeking the sanction u/s 197 Cr.PC from NSCS and also the reply covering letter of NSCS, through which the aforesaid sanction was granted.
(b) Photocopy of the file notings, based on which the sanction for u/s 197 Cr.PC been accorded. As my personal liberty is at stake, I therefore request that this information be provided for my defence within 48 hrs of receipt of this letter in accordance with section 7 (1) of RTI, 2005.”
In the first application of 26-2-08 appellant sought the following information from CPIO, NSCS:
“a. During my tenure in NSCS, with the help of information available on the website of CETR-IN, I had drafted an Information Security Policy for NSCS which was get implemented. This is not a classified document, as it was to be circulated even to non-gazetted staff for its optimum implementation. All officers of NSCS were provided one copy each for them and their staff. Please provide the copy of Information Security Policy as mentioned above. b. After prolonged deliberation with STQC (Standard Training Quality Certification) of Department of Information Technology (MC&IT), I had sought their help to undertake information security audit. Please provide copy of the letter to STQC, sent around April-May-June 2005. This is also not a classified document as this letter was just duplication of what had been sent through e-mail according to STQC policy. And according to government policy no classified information can be sent through email.” In the second application of 26-2-08 following is the information sought:
“(a) NSCS had accorded the sanction behalf of the Central Government in accordance with section 197 Cr.PC, 1972 vide NSCS letter No. C-11017/1/2006-Admn dated 14.12.2006 to prosecute me in the above mentioned case. Please provide the photocopy of the letter of special cell, New Delhi, seeking the sanction u/s 197 Cr.PC from NSCS and also the reply covering letter of NSCS, through which the aforesaid sanction was granted.
(b) Photocopy of the file notings, based on which the sanction for u/s 197 Cr.PC been accorded. As my personal liberty is at stake, I therefore request that this information be provided for my defence within 48 hrs of receipt of this letter in accordance with section 7 (1) of RTI, 2005.”
In his application dated 12-11-07 of file No. CIC/WB/A/2008/00271 Shri Paul sought the following information from CPIO, NSCS:
“(a) Information relates to the undersigned, who was working with your organization as Sr. System Analyst from 14.09.2001 to 10.06.2006. His Human Rights are being violated as he is in judicial custody in a false case (FIR No. 42/06) by Special Cell, New Delhi.
(b) Please provide information on search carried out of his office on 9.6.2006 and 10.06.2006.
(c) Please confirm his room/cabin was sealed on 9.6.2006 onward.
(d) Please confirm as to whether his office computer and files were looked into by any search party on 9.6.2006 and 10.6.2006.
(e) Please attach file noting and documentary evidence of these searches.
As personal liberty of the undersigned, erstwhile Sr. System, Analyst, NSCS is at stake, the undersigned is, therefore, request that this information be provided within 48 Hrs on receipt of this letter in accordance with Section 7 (1) of Right to Information Act, 2005.”
In file No. CIC/WB/C/2008/00378 the application of 18-2-08 was replied through a letter of 18-3-07 from Shri G. Rajeev, CPIO & Under Secretary, NSCS refusing the information sought u/s 8 (1) sub-section (a). This was repeated in reply to the applications of 26-2-08 both of which were replied to by CPIO Shri Rajeev on 18-3-08. In these three cases the prayer of appellant before this Commission is as follows:
“(a) The Central Information Commission prevails upon Shri G. Rajeev, CPIO of NSCS to provide me the information as sought by me in all these applications under RTI Act 2005.
(b) Take appropriate action against the Central Public Information Officers of NSCS for denying me information’s with malafide intent, especially when my personal liberty is at stake and my Human Rights are violated through this false and fabricated case FIR No. 42/2006 of special cell.”
In the case in file No. CIC/WB/A/2008/00271 the information was refused by CPIO, Shri Rajeev on 22-11-07 u/s 8 (1) (h) of the RTI Act pleading ongoing investigation. In this case Shri Paul moved his first appeal before Shri Rohit Khera, Jt. Secretary, NSCS pleading as follows:
“The case FIR No. 42/2006 has already completed the investigation and submitted Charge Sheet on 8.9.2006. The supplementary Charge Sheet was submitted on 13.10.2006.
Thus no investigation is in progress in the case.”
However, 1st Appellate Authority Shri Rohit Khera JS (A) in his order of 22-1-08 dismissed the appeal u/s 8 (1) sub-section (g) as disclosure, in his view “is likely to reveal the sources relied upon during the enquiries against him, which will have adverse implications on national security”.
In this case appellant’s prayer before us in his second appeal is as below:
“(a) Call for the records of the NSCS on the subject matter.
(b) Order CPIO, NSCS to provide complete and ful information as sought by me in my RTI request lette dated 12.11.2007 (Enclsoure-1).
(c) Impose appropriate penalties and disciplinary action against the CPIO, NSCS as envisaged under section 20 (1) and 20 (2) of the RTI Act, 2005. it is because of the malafide denial of information, I could not secure bail and my personal liberty continues to be curtailedin this false case.
(d) Any other orders/ direction (s) as considered appropriate in view of the peculiarities of this case.”
All cases were heard on 16-7-2008 at Central Jail, Tihar, New Delhi.
The following are present:
Appellant
Shri Shib Shankar Paul.
Cdr (Retd) Mukesh Saini.
Respondent
CPIO Shri G. Rajeev, Under Secretary (Admn), NSCS.
In the meantime we received a request from Shri G. Rajeev, Under Secretary (Admn.) & CPIO, NSCS submitting that Shri V.K. Mall, IPS, Director, NSCS was the officer coordinating with the investigating agency to investigate the case as nodal officer. He has since reverted back to his cadre Gujarat as IGP since 23rd May, 2008. His assistance was requested in hearing the case for which adjournment was requested. We have in the hearing however heard the appellant.
Appellant Shri Paul has invited our attention to a report in the Hindustan Times of 26th May, 2007 in which it has been reported as follows:
“According to an NSCS official, when the IB, which broke the case, arrived to question Paul on June 9, he cooperated with them explaining the file retrieval and firewall system he had set up for the organisation. He came early the next day, Saturday to assist them further.”
He has, therefore, submitted that the order in this case of the 1st Appellate Authority in which despite his cooperation and although the investigation has been completed and charge sheet submitted, he has still not been provided information on grounds of exemption sought u/s 8 (1) (g).
He further submitted that NSC had been misled by a fake report by the police, which he can establish provided he is given the information that he seeks, created by himself during his service with the NSCS. Shri Paul also submitted a file providing detailed response to each question raised through the processing of his application.
Having heard the appellant Shri Shib Shankar Paul the hearing was adjourned to 6-8-08 At 4.30 P.M. when Shri V.K. Mall, presently, IGP, Gujarat would appear before us. In doing so he was directed to take care to have first studied the judgment of Justice Ravindra Bhat in W.P. No. 3114/2007 of the Delhi High Court in Bhagat Singh vs. CIC while seeking exemption under any of the provisions of Section 8 (1) to the disclosure of information sought by appellant Shri Paul. He was also directed to bring with him the requisite file so as to satisfy us that there is ground for the plea taken u/s 8 (1) sub-section (g).
According to our decision of 16.7.08, the following appeared before us on 22.9.2008 at 1.00 p.m. :
Respondents
Sh. V. K. Mall, IGP Govt. of Gujarat
Sh. G. Rajeev, US(A), NSCS
Shri V. K. Mall IGP, Govt. of Gujarat submitted that all the documents that he held with regard to the case of Shri Paul have been transferred to the HO, NSCS. He further submitted that his role in this case, having joined the NSCS after the arrest of appellant Shri Paul was more in the nature of a post office. He, therefore, had no fresh information to disclose. Mr. G. Rajeev US (A) submitted a copy of the Information Security Policy circulated within the NSCS by Joint Secretary Shri Arvind Gupta on 6.7.05. Although he agreed this policy was not marked confidential, it was only for internal circulation within the public authority.
On the application of 26.2.08, while, therefore, a copy of the Information Security Policy has been submitted, the letter to STQC of Department of Information & Technology was also sought regarding which Shri Rajeev stated that the office of NSCS has no record.
He also submitted a copy of correspondence indicating that the NSCS has moved for inclusion in the Second Schedule of the RTI Act, 2005,, a proposal which is now before the highest authorities.
In his application of 18.2.08 Shri Paul had asked for a photocopy of visitors register dated 5.6.06 to 10.6.06. Shri Rajeev, while submitting the register for our inspection, pleaded that disclosure of such information would disclose the names of the visitors to the NSCS, which could compromise
national security and, therefore, has been refused u/s 8(1)(a). He offered to provide the information regarding any specific entry that appellant sought.
With regard to the second application of 26.2.08 and the application of 12.11.07 in File No. CIC/WB/A/2008/00271 Shri Rajeev submitted that he would submit the documents on the following date. The hearing was, therefore, adjourned to 23.9.08 at 10.00 a.m. On 23-9-08 the following appeared before us, together with relevant records:
Respondents:
Shri Rohit Khera, Jt. Secretary, NSCS
Shri G. Rajeev, US (A), NSCS
File No. CIC/WB/A/2008/00271
We examined the records. In this case a report has been received from an organisation exempted from the Act on 8.1.2008. However, there is a police report of 7.1.2008 in which each question raised by appellant Shri Paul has been answered by the DCP Special Cell in letter addressed to DCP (HQ), Delhi Police.
On the first request of 26.2.2008 the information sought by appellant and the documents inspected relevant thereto can be categorised as follows:-
Photocopy of the letter of Special Cell, New Delhi seeking sanction u/s 197 Cr.PC. The letter of concern is of 13.9.2006 to DCP HQ from DCP, Special Cell.
Covering letter of NSCS through which aforesaid sanction was granted. This is a letter of 14.12.2006 from Director (Adm) NSCS to DCP (HQ) Delhi, Shri H. N. Meena.
Photocopy of the file noting based on which sanction u/s 197 Cr.PC has been accorded.
Page 1 of the noting seeking the sanction refers to a communication received from an organization exempt u/s 24 (1) of the RTI Act. This reference is at page 1 of the noting. However, the remaining part of the noting is the noting between NSCS and PMO on pages 2, 3, & 4 in which there is only a passing reference to the above mentioned exempted organisation.
DECISION NOTICE
Having examined the records and heard both parties we hereby direct as follows;-
1. File No. CIC/WB/A/2008/00271
In this case the information sought is forthright and a response to each question has, in fact, been received from the Delhi Police. This response does not contain any information that could identify and thus compromise the security of any person. The decision of Shri Rohit Khera, JS (Admn)
and 1st Appellate Authority on 22.1.2008 in this matter is, therefore, set aside. CPIO Shri Rajeev will provide a copy of the police report to appellant Shri Shiv Shankar Paul within 10 working days of the date of receipt of this decision notice.
2. In the 3 applications considered in file No. CIC/WB/C/2008/00378 and IC/WB/C/2008/00169 our decision is the following in respect of each:-
a) Application of 18.2.2008. In this case we agree with respondents that the names of visitors to the NSCS, which as the name of this public authority implies is the apex security agency in the country would decidedly compromise national security and merits exemption from disclosure u/s 8 (1) (a). However, as offered by CPIO, if there is any specific individual regarding whose visit appellant would wish to enquire it would be open to him to communicate the same to the CPIO Shri Rajeev who will examine disclosure of this information in the context of this subsection. The action of CPIO refusing information on this request is, therefore upheld with the above qualification.
b) In application of 26.2.2008 in which copy of the information on Security Policy has been received, this document is not even marked ‘confidential’. We have examined this policy in some detail; it has several sub-heads namely physical security, fire protection, prevention of computer misuse, advice on selecting passwords, media management, media movement, back up of data, measures to handle computer virus, hardware and software maintenance, purchasing and licensing of hardware and software connectivity, network administration, inventory, internet services, browsing safely, using caution with e-mail attachments, reducing Spam, chain letter (hoaxes and urban legends) and protecting privacy.
These are all general principles of computer management. Eminently advisable to any user of a computer to adopt. It is a policy obviously designed to rain those not highly computer literate, to maintain a level of security of the data that they have stored. There is nothing whatever in this policy document which could compromise National Security. A copy of this document will, therefore, be provided to appellant Shri Paul within 10 working days of the date of receipt of this decision notice.
However, since the information sought in the second question of the same application, which is the correspondence with STQC is not held by the NSCS, this cannot be supplied.
c) On the second application of 28.2.2008, part of the information sought by appellant can be considered security sensitive. It is, therefore, after examination decided as follows:-
The letter of Special Cell New Delhi in which prosecution is recommended u/s 197 Cr.PC from NSCS contains details of the internal functioning of the NSCS. It also describes the manner in which an employee in such an agency can be inveigled into compromising security. During the hearing Shri Rohit Khera reiterated that the NSCS being a premier security agency of the country is cautious in disclosing any aspect of its internal functioning. Disclosure of this information, in his view, would disable efforts initiated to strengthen the security of the agency exposing loopholes to espionage agencies interested in penetrating the NSCS. Having examined these records we are ready to subscribe to the view that disclosure of this letter could amount to such a compromise. However, the covering letter of NSCS through which the aforesaid sanction was granted which is the letter of 14.12.2006 from the Director (Admn), NSCS to DCP, (HQ), Delhi Shri H. M. Meena, also sought by appellant Shri Paul, on the other hand contains no such sensitive information and can be disclosed.
Similarly we have examined the photocopy of file noting. Applying the principle of severability u/s 10(1) we find nothing in pages 2, 3, and 4 of the file noting which could in any way infringe on national security. Therefore, severing page 1, which refers to the recommendations received from an exempted organisation, information furnished by which to Government is exempt from disclosure u/s 24 (1), the remaining file noting may be provided to appellant Shri Shiv Shankar Paul. As in a & b above the information directed to be disclosed with regard to this case also be provided to the appellant within 10working days of the date of receipt of this decision notice.
The appeal is thus allowed in part. There will be no cost. However, since the information now directed to be disclosed was not disclosed within the time limit mandated u/s 7(1), this will, therefore be provided free of cost u/s 7(6)
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
23-9-2008
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar)
Joint Registrar
23-9-2008
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