Brig. (Retd.) Ujjal ... v. Centre For Developme...

CIC/AD/A/2009/000358 CIC/AD/A/2009/000191 CIC/SG/A/2008/00311/AD CIC/AD/C/X/09/000031 Dated May 4, 2009 Name of the Appellant : Brig. (Retd.) Ujjal Dasgupta Name of the Public Authority : Centre for Development of Advanced Computing [CDAC] Background

1. The RTI application was filed on 30.06.2008 with the CPIO, Centre for Development of Advanced Computing [hereinafter referred to as CDAC] seeking information with respect to the ANVESHAK software developed for R&AW, by CDAC, Pune. The information sought by the Appellant pertained to the software for the period between 2003 to 2006 and were as follows:

i. Whether the software was developed at the vendors premises, if so whether the software was conveyed to the vendors premises under arrangements of the vendor;

ii. Storage media [CDs/Floppy disks/pendrives etc] used to transport the software to the vendors premises;

iii. Number of such storage media and of what capacity can contain the uninstalled software?

iv. Agency responsible for installing the software at users premises on users systems was CDAC or the user themselves;

v. Whether storage media containing the uninstalled software was handed over to the users after installation on the users systems, or at anytime thereafter, or retained by CDAC engineers;

vi. Whether the software was designed to work on a Server-Client mode in a over a LAN [Local Area Network] or on a Stand-Alone machine mode;

vii. If designed to work on a Server-Client mode over a LAN, on which machine is the software installed?

viii. Whether the software increases in size upon being installed and size of the installed software;

ix. Role of CDAC post installation of the software at users premises in as much as is there any continuing responsibility, if so, what and how is the same fulfilled?

2. The Appellant filed a First Appeal before the Appellate Authority, Director, CDAC on 04.09.2008 upon non-receipt of any response from the CPIO on his RTI Application. When despite the passage of the stipulated time, as provided under RTI Act 2005, no reply was received by the Appellant from the First Appellate Authority also, the Appellant filed an APPEAL before the CIC on 16.10.2008. In his Appeal the Appellant reiterated his RTI request while reasoning that the information sought had a bearing on his life and personal liberty since he had been arrested and has been in judicial custody since 20.07.2006. He argued that the charges leveled against him cannot be rebutted in the Court of law, by him without the information as sought vide the RTI request. The Appellant in his appeal furthermore submitted that the information sought by him is not exempt under provisions of the Section 8 (1) (a), (b) and (h) of the RTI Act 2005.

3. The CPIO, CDAC responded vide letter No. P:LEGAL:RTI-24:2008:75 on 18.10.2008 denying information to the Appellant pertaining to the ANVESHAK Software developed by CDAC under provisions of Section 8 (1) (d) and (e) of the RTI Act 2005. The Appellant filed an appeal on 03.11.2008 again before the First Appellate Authority challenging the CPIOs communication dated 18.10.2008. The Appellant stated in his Appeal that he had sought information pertaining to only factual issues with respect to the software and not the data contained therein. It was further stated by the Appellant that CDAC being the developmental agency, was approached by him as the appropriate authority to answer the queries, none of which impinged on the developer-client relationship. The documents being 19 pages and 3 pages showing the presence of the keyword ANVESHAK allegedly recovered from the unused cluster area and stack area of the office laptop and residence computer of the Appellant formed the basis of the charges framed against the Appellant. The Appellant explained that the ANVEHSAK software relating to a data base management system is used for storage and retrieval of data collected by RAW. However the populated contents can only be accessed from the database by first invoking the software which has to be made functional, by an authorised user on the LAN with a valid user ID & password. The Appellant further stated that the documents have been denied to him and the same have not even been submitted in the Court, hence the Appellant has sought redressal under RTI Act in order to substantiate his defence.

4. However, having received no response from the First Appellate Authority, the Appellant filed another APPEAL on 02.12.2008 before the CIC challenging the denial of information to him vide the CPIO, CDACs letter dated 18.10.2008. While reiterating his RTI query the Appellan contended that the CPIOs reply is incomplete, invalid, misleading as also not provided within time specified. The Appellant further reasoned that information sought by him pertains to the design of the software and external features thereof including the storage medium used in transporting it, which by itself is not classified until populated with data that can be considered classified. It was also pointed out by him that other organizations including the Army have already classified that the software developed by them, found on the Appellants computer, is unclassified and also that CDAC is not an agency exempt under section 24 of the rti act 2005. On 18.12.2008 the CPIO responded on behalf of the First Appellate Authority after seeking advice from R&AW and revising the grounds of denial as section 8 (1) (a) & (h) of the rti act 2005. The CPIO clarified that upon seeking advice from R&AW regarding the disclosure of information to the Appellant, R&AW vide their letter dated 11.12.2008 had categorically denied permission to pass on any information due to the sensitivity and operational methodology attached to national security related to the ANVESHAK software. The second reason for denial of information was that the matter was sub judice.

5. The Appellant being aggrieved by the denial of the CPIO filed yet another appeal before CIC on 15th Jan 2009 challenging the CPIOs revised grounds of denial of information and also reiterating all the developments leading to the filing of the instant Appeal including the communication/s exchanged with the Public Authority in the interregnum period. The Appellant reiterated his submissions as already done in his Appeal/s dated 03.11.2008 and 02.12.2008 while also placing reliance on a copy of the Cabinet Secretariat (R&AW)s letter dated 16.10.2006 addressed to the Special Cell. In the said letter dated 16.10.2006, the Cabinet Secretariat (R&AW) maintained that the ANVESHAK project or project details are not directly connected with the security or defence matters of the country. However, since it relates to a database management system used for storage and retrieval of sensitive data collected by the R&AW on such issues, it may be construed as being indirectly connected with the security or defence matter of the country.. The Appellant further submitted that his queries are addressed to the developmental agency which developed the software; however storage of any sensitive data that may result in the ANVESHAK database having relevance to national security is not done by the developmental agency and is completely outside the purview of the Appellants query.

6. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing for 05.03.2009 and a communication dated 23.02.2009 was accordingly sent to the parties intimating the date of hearing of the appeal. However on request from the Appellant, who was in judicial custody, vide letters dated 27.02.09 & 28.02.09 the hearing of both the Appeals dated 16.10.2008 and 15.01.2009 was re-scheduled for 31.03.2009 through Video Conferencing.

7. The Appellant was present for the Video Conference from Tihar Jail. Ms. Bandana Malhotra, Ms. Namrata Yadav and Mr. Venkatesh Nayak were present on behalf of the Appellant during the hearing at CIC in August Kranti Bhawan.

8. Mr. R Y Deshpande, CPIO & Mr. Pawnikar, PIO, CDAC were present through Video Conference from Pune and represented the Public Authority. Issue Whether the information sought by the Appellant pertains to the sensitive data contained in the ANVESHAK software or about the design, layout and other basic, factual issues relating to the software? Decision

9. During the hearing, the Appellant submitted a brief synopsis of the various appeals detailing the facts and circumstances leading to the filing of the appeals chronologically and also rebutted the exemptions sought and grounds cited by the Respondent Public Authority for denying the information sought by the Appellant. While objecting and opposing the exemption as sought by the Respondent under section 8 (1) (a) on the ground of national security, the Appellant contended that the software developed by C-DAC per se does not fall within the category of classified information unless the software is populated with classified data/information, like in the case of a normal office file. It has been contended that the information has been sought from C-DAC, which is the developmental agency of the software and has no knowledge of ..the sensitive and confidential data.. with which R&AW may have populated the software subsequently. It is relevant to note in this regard that as per the letter no. 542/JS/06 dated 16.10.06[supra] issued by the Cabinet Secretariat it has been already admitted that .the ANVESHAK project or project details are not directly connected with the security or defence matters of the country. However, since it relates to a database management system used for storage and retrieval of sensitive data collected by the R&AW on such issues, it may be construed as being indirectly connected with the security or defence matter of the country.. Furthermore, during the hearing, the representatives of C-DAC also admitted that the exemption as sought under Section 8 (1) (a) of the RTI Act 2005, is not pressed anymore and hence the same is rejected as invalid in this case. In so far as denial of information invoking Section 8 (1) (h) is concerned, the Appellant contended that the provisions of the Section 8 (1) (h) have been wrongly invoked since the complaint and also the charge sheet against him have already been submitted in the Court way back in October 2006. The documents, if handed over to him, will not hamper prosecution nor impede the investigation in the case but on the other hand will help him prove his innocence. The Appellant placed reliance on the favorable orders passed by CIC itself during July and October 2008 in the RTI appeals of co-accused of the Appellant, viz. Sh. S S Paul and Cdr (Retd) Mukesh Saini. Further reliance was placed by the Appellant on decision of the Honble High Court of Delhi in the case of Bhagat Singh vs. CIC & Ors. on 03.12.2007 stating in this regard: .mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. The Commssion noted that even during the hearing, the representatives of C- DAC failed to substantiate the exemption sought by them under the Section 8 (1) (h). Accordingly the exemption under Section 8(1) (h) is held not applicable in the instant case. Dealing with the earlier exemptions under Section 8 (1) (d) as sought by the CPIO in his letter dated 18.10.08, the Appellant stated that no information disclosure of which would harm the competitive position of a third party has been sought by the Appellant in his RTI request and hence the exemption under Section 8(1) (d) is not applicable in the instant case. The Commission is of the opinion that even the exemption as sought by the Respondent invoking provisions of Section 8 (1) (e) of the RTI Act 2005 taking the plea of fiduciary relationship between the CDAC and R&AW is not applicable in this case since they share only a developer-client relationship. The question of a fiduciary relationship between a developer and a client does not arise due to the absence of the vital ingredient of real or apparent authority of one over the other. In Fiduciary Relationship, a person holds the legal duty to act primarily for anothers benefit thereby enjoying a position of trust, good faith and responsibility. Thus the word Fiduciary is often used as an alternative term for trustee. Clearly the relationship between C-DAC & R&AW does not fall within this category. In fact as per the letter dated 18.12.2008, the CPIO had already revised and removed the exemptions under 8(1) (d) and (e) and relied only on section 8 (1) (a) and (h). Even during the hearing, the representatives of C-DAC did not argue the aforesaid exemptions.

10. Perusal of the records of the case reveals that the responses/information sought by the Appellant can be broadly classified under the following heads:

1) Volume/Mass/Design of the software: Point (iii) Number of such storage media and of what capacity are needed to contain the uninstalled software? Point (vi) Is the software designed to work on a Server-Client mode over a LAN (Local Area Network), or is it designed to work on a Stand-Alone machine mode? Point (vii) If it is designed to work on a Server-Client mode over a LAN, on which machine is the software installed? Point (viii) Does the software increase in size as a result of being installed? What is the size of this installed software?

2) Storage media used for transport: Point (ii) On what storage media e.g. CDs/Floppy disks/pendrives etc was the software taken to the users premises?

3) Where was the software developed and vendors role and responsibility: Point (i) Was the software developed at the vendors premises? If so, was the software conveyed to the users premises under arrangements of the vendor? Point (iv) Which agency was responsible for installing the software at the users premises on the users systems the development agency i.e. C-DAC or the users themselves? Point (v) Were the storage media containing the uninstalled software handed over to the users after installation on the users systems or at any time thereafter, or were they retained by CDAC engineers? Point (ix) What is the role of C-DAC after the software is installed at users premises? Is there any continuing responsibility, and if so, what? How is the responsibility fulfilled? Even a cursory glance at the above mentioned headings of the three categories reveals that no classified information populating the soft ware has been sought by the Appellant nor has he sought any information exempted under any one of the clauses of Section 8(1) . A detailed analysis of the three categories of information sought substantiates the above assertion, as given below: The response to the questions asked under the first two categories deal with only the design, mass and such other external facts about the software. The likely response to the query at 1(point iii) and 2(point ii) would only indicate the information about the exact storage media viz. Floppy/CDs/ pendrives used in transporting the software from the vendor [C-DAC]s premises to the user [R&AW]s premises and number and capacity of such storage media thereby indicating only the volume of the software. Similarly the likely answer to 1(point vi) and 1(point vii) would indicate the design aspect of the software relating to its configuration viz. Server-Client mode over a LAN or Stand-Alone mode. The reply sought in the Point 1(point viii) again will indicate only the size/mass/volume of the software pre and post installation. In so far as the queries under points 3(point i), 3(point iv) and 3(point v) and 3 (point j) are concerned, since the same relate to the role and responsibility of C-DAC in the entire process, they can be answered best by C-DAC which is the developmental agency and custodian of the information. None of the aforementioned queries make any reference to any confidential data or information stored within the software by R&AW , disclosure of which can prejudicially affect the sovereignty and integrity of the nation, or could adversely affect the national security or the strategic, economic or scientific interests of the country. In fact, most of the questions in the RTI application can well be responded in either a Yes/No or in a single word or a single line.

11. From the above discussion it is amply clear that what qualifies for exemption from disclosure is the confidential data collected and stored by R&AW within the ANVESHAK software subsequently. At this point it is crucial to distinguish the terms software, hardware and data. The Thesaurus defines Software as written programs or procedures or rules and associated documentation pertaining to the operation of a computer system and that are stored in read/write memory. In fact software can be defined as a set of instructions for a computer. The term hardware with respect to computers is a general term that refers to the physical artifacts of a technology. It may also mean the physical components of a computer system, in the form of computer hardware. However the Data is basically a collection of facts from which conclusions may be drawn. Data is stored in the particular software and is distinct from the software as much as papers stored in a file are distinguishable from a file cover.

12. Thus from the facts and circumstances of the case, it is evident that the information as sought by the Appellant refers to factual and design details of the software without making any reference to the confidential data stored within the software. The information as sought by the Appellant is FIRSTLY not exempt under any particular Section/clause/provision of the RTI Act 2005. SECONDLY, CDAC being a Public Authority is in custody of information which is completely unrelated with the confidential, sensitive data relating to operational methodology as referred by R&AW. In the capacity of a Public Authority, the C-DAC is lawfully under obligation to divulge/disclose the information available with it under provisions of the RTI Act 2005. Not disclosing information which will facilitate the Appellants attempts at proving his innocence is in gross violation of the celebrated maxim of natural justice. It is, in fact, a case of human rights violation with respect to the Appellant. Since, as discussed, there is no sensitive information pertaining to R&AW and since R&AWs opinion and/or view is not applicable in this case, the Commission directs the CPIO, CDAC to furnish the Appellant with all the information as sought by him in the RTI application, by 25 May, 2009 under intimation to the Commission.

13. The appeals are accordingly disposed off. (Annapurna Dixit) Information Commissioner Authenticated true copy: (G.Subramanian) Asst. Registrar

1. Brigadier (Retd.) Ujjal Dasgpta Jail No. 1, Ward No.8 Tihar Jail Hari Nagar New Delhi 110064

2. The Public Information Officer Corporate (RTI) Centre for Development of Advanced Computing Pune University Campus Ganeshkhind Pune - 411007

3. The Appellate Authority ( RTI Cell) Centre for Development of Advanced Computing Pune University Campus Ganeshkhind Pune - 411007

4. Officer in charge, NIC

5. Press E Group, CIC