In April last year, the All India Institute of Medical Sciences, Jodhpur, and Microsoft India announced a collaborative project on remote healthcare. In February, the central health ministry’s telemedicine platform e-Sanjeevani, hosted on the Amazon Web Services’ cloud, reported having served 10 crore patients. Tamil Nadu, meanwhile, has partnered with Google for its Population Health Registry, aimed at creating a comprehensive health database of the state’s population.

These are all agreements involving technology behemoths, public resources, taxpayer money, sensitive health data and critical services that serve all Indians. Yet, the fine print of these collaborations is not available in the public domain.

The authors of this article found that the government stonewalled Right to Information queries seeking information on contracts between public authorities and private technology companies on digital health initiatives. Though the Right to Information Act as well as the judiciary have emphasised transparency, public authorities employed a range of tactics to refuse data from claiming that it was “personal information” to transferring and disposing of applications.

This does not bode well for public health or the public interest. Partnerships with “Big Tech” companies have often sparked data privacy and transparency concerns, such as the misuse of data to profile users or for commercial purposes. There is also the risk of monopolistic practices developing. For example, in 2022, the Parliamentary Standing Committee on Finance noted that the big players with vast repositories of consumer and business data resort to tracking and profiling end users to strengthen their position and prevent new players from entering the market.

Legal precedent for disclosure

In 2013, the Ministry of Personnel, Public Grievances and Pensions issued an order directing public authorities to disclose all information related to public-private partnership contracts under Section 4 of the Right to Information Act. Section 4 deals with the obligations of public authorities. Still, more often than not, public-private partnership contracts are not available in the public domain.

In October, the Delhi High Court, while ruling in the case of Prashant Reddy vs CPIO, modified an order passed by the Central Information Commission and directed the Unique Identification Authority of India to disclose its contracts with external organisations to handle grievance redressal under the Aadhaar Act. CPIO refers to the Central Public Information Officer, the public officials who deal with information requests.

The court held that “complete transparency” was necessary in the way the contracts had been awarded.

In 2011, the same court, while ruling in the case of Jamia Milia Islamia vs Shri Ikramuddin, had upheld an order of the Central Information Commission directing Jamia Milia Islamia, a statutory central public institution, to disclose its settlement agreement with another individual over a parcel of land.

The court held that a public authority entering into an agreement with any person or entity is public activity involving public interest, and hence “every citizen is entitled to know on what terms the agreement/settlement has been reached”.

Unjustified use of exemptions

Public authorities often use exemptions under Sections 8 and 9 of the RTI Act to deny information. These sections list out specific circumstances under which public authorities can withhold information from the public. Section 8 lists out conditions under which information is exempt from being disclosed, such as anything that could harm Indian sovereignty, or could endanger the life or safety of a person. Section 9 allows for the rejection in access to information in certain cases.

But instead of merely quoting the exemption, the authority must explain how the information sought falls within the claimed exemption based on some material facts. Several court judgements, including by the Delhi High Court, have reiterated this.

The Central Public Information Officer at the All India Institute of Medical Sciences, Jodhpur, rejected the request by the authors for a copy of the remote health technology contract between the institute and Microsoft India, claiming exemption under Section 8(1)(j) of the Right to Information Act, which relates to personal information unrelated to any public activity or public interest. There was no explanation for how “personal information” had anything to do with the requested information.

Such a position is not legally tenable given the government’s 2013 order as well court rulings which have held that public authorities entering into agreements with private companies is “public activity” involving public interest. Even the first appellate authority dismissed the appeal without addressing these contentions.

The amendment to Section 8(1)(j) of the Right to Information Act, under the Digital Personal Data Protection Act, 2023, will exempt all personal information, whether it involves public activity or interest. This will only make it more difficult to get information about public-private partnership contracts in the future.

Transferring and disposing without providing information

Section 6(3) of the RTI Act allows public authorities to transfer applications to other government bodies if they do not have the information requested. However, the section neither explicitly states nor implies that the public authority can dispose of a transferred application.

The authors filed an application for information on the engagement between the Union health ministry and Amazon Web Services for hosting the e-Sanjeevani platform.

First, the health ministry disposed of the application by transferring it to the National Health Authority and the National Health Mission, entities that fall under the ministry, and the Centre for the Development of Advanced Computing, which comes under the Ministry of Electronics and Information Technology.

The National Health Authority disposed of the application by transferring it back to different divisions of the health ministry and the Centre for the Development of Advanced Computing. This back and forth went on for over four months. It was only when a fresh application was filed with the Centre for the Development of Advanced Computing that there was a response.

The health ministry’s conduct is at odds with the court’s position that public authorities should not function as mere post offices, especially when the public information officer has to arrange or source information from within its own organisation. Being the nodal ministry, the health ministry should have had the necessary documents on record, even when partnering with another ministry on a programme.

Nodal ministry has no information

In 2011, the Supreme Court had held that information can only be considered “not available” if it is not required to be maintained under any law or regulations of the public authority. Hence, the argument of non-availability of information with nodal ministries is unacceptable.

In another example, we filed an application with the health ministry asking about a public private partnership for the provision of teleradiology services, which is part of the free diagnostics programme of the National Health Mission.

The health ministry responded that the requested information was not available with it and transferred the application to the National Informatics Centre, which falls under the Ministry of Electronics and Information Technology. The National Informatics Centre responded to one query in the application and transferred the application back to the health ministry.

Another observation was that public information officers often provide information after the statutory period of 30 days and give vague responses. We have now appealed many of the decisions before the Central Information Commission. But given the widespread vacancies plaguing the Commission, it is unlikely that the appeals will be heard anytime soon.

The Right to Information Act was envisioned as a powerful tool to ensure transparency and accountability, but its practical implementation has restricted its impact.

Anmol Mathur is a Programme Associate and Shefali Malhotra is a Research Consultant at the Centre for Health Equity, Law & Policy. The Centre is a research and advocacy organisation set up under the aegis of the Indian Law Society that advocates for digitalisation in the health sector to be anchored in the human rights and ethics framework.