Disclosure of third party agreements entered into by UIDAI for handling grievance redressal

A case came up before the High Court regarding access to the copy of agreements entered into by Unique Identification Authority of India (UIDAI) with the external organization for handling grievance redressal on its behalf. This article looks into the issues raised.

Queries raised by the applicant and the reply of the CPIO

1. Please state whether the UIDAI has formulated any policies or regulations regarding grievance redressal. If so, please provide a copy of the same. Reply: It is confirmed that relevant information is available in the public domain. Please visit UIDAI website www.uidai.gov.in

2. Please state whether the UIDAI has hired an external organisation to handle grievance redressal on its behalf. If so, please provide a copy of the contract with such external organisation.  Reply: Yes, Further copy of contract cannot be provided under section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; of the RTI Act, 2005.

3. If the UIDAI is handling grievance redressal internally, please state the number of personnel who have been assigned to the job, along with their ranks.  Reply: Information pertaining to the handling grievance redressal internally cannot be provided under section8 (1)(d) of the RTI Act, 2005. Further, for more information you may visit UIDAI website www.uidai.gov.in.

4. Please state the number of complaints handled by the grievance redressal mechanism over since January 1, 2016."   Reply: It is intimated that queries in your RTI application does not fall under the purview of information as defined in Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act, 2005.

First Appeal decision dated 29.04.2022

The First Appellate Authority rejected the appeal filed by the RTI applicant.

Second Appeal decision dated 20.03.2023

The CIC directed the CPIO to

1. Provide the specific web-link as sought for in query no. 1,
2. Name of the external organizations handling its grievance redressal work for query no. 2.

The CIC held that the CPIO ought to have provided the name of the external organisation handling its grievance redressal work as per the official records. However, the CPIO denied provision of a copy of the contract entered into by UIDAI with a private firm to the Petitioner on the ground that the contract was subsisting. The CIC was of the opinion that since the contract was subsisting and had not been discharged, the bar of Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; of the RTI Act was attracted. The CIC placed reliance on a Judgment of the Division Bench of High Court of Jharkhand in the case of State of Jharkhand v. Navin Kumar Sinha and Anr., AIR 2008 Jhar 19. The CIC also observed that the Petitioner has not specified the period for which the information was sought in his main RTI application, therefore, it has to be presumed that the information is being sought by the Petitioner for the current organization handling the grievance redressal work of UIDAI. The CIC, therefore, held that since the contract with the current external organization is subsisting and has not been discharged, the copy of the contract cannot be provided to the Petitioner in view of the bar of Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; .

3. The number of staff handling the grievance redressal work internally for query no. 3 and
4. The number of complaints disposed of for query no. 4.

Regarding query no. 3 and 4, the CPIO shall ensure that the personal information of employees and sensitive information, if any, is redacted and masked as per Section-10 of the RTI Act, 2005.

Issue before the High Court

Whether directing the UIDAI to disclose the contract will lead to revelation of certain information which may harm commercial confidence, trade secrets or intellectual property and the competitive position of a third party.

Arguments by the petitioner

1. Section 23(2)(s) of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 provides for setting up facilitation centres and a grievance redressal mechanism for redressal of grievances of individuals, Registrars, enrolling agencies and other service providers.
2. These mechanisms are in the nature of public-private partnership agreements and these agreements fall within the definition of “information” under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act.
3. Copy of the agreement cannot be exempted u/s 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; because it does not include any commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party.
4. In the case of Shri Navroz Mody vs. Mumbai Port Trust, Appeal No. CIC/AT/A/2009/000964 dated 03.09.2009 the three-member bench of CIC directed that the private-partnership agreement entered into between the Mumbai Port Trust and an external agency was directed to be disclosed.

Arguments by the Respondent

1. Section 23(2)(m) of the Aadhaar Act provides that the authority can specify by regulations, various processes relating to data management, security protocols and other technology safeguards under this Act.
2. Section 54(2)(p) gives power to the authority to make regulations regarding various processes relating to data management, security protocol and other technology safeguards under clause (m) of sub-section (2) of section 23.
3. Referred to Regulations 3(1), 3(2)(m) and 3(2)(q) of Aadhaar (Data Security) Regulations, 2016 and contended that the authority may specify an information security policy setting out the technical and organizational measures to be adopted by the Authority and its personnel, as well as security measures to be adopted by the agencies, advisors, consultants and other service providers engaged by the Authority, Registrar, enrolling agency, requesting entities and authentication service agencies and the security policy may provide for measures for fraud prevention and effective remedies in case of fraud. He, therefore, states that the contract entered into by UIDAI with an external agency provides for such clauses which cannot be revealed.
4. Referred to regulation 5(e) of the (Data Security) Regulations, 2016 to contend that the agency and other service providers have to ensure that confidentiality obligations are maintained during the terms and on termination of the agreement. Therefore, the information will come within the purview of Section 8(d) of the RTI Act, 2005 and the contract would come under the exemption clause.

Views of the High Court

1. The contract which has been entered into by the UIDAI with an external organization for the purpose of handling grievance redressal on its behalf is “information” which can be, and should be, provided under the RTI Act, as long as this information does not fall under any of the exceptions given in Section 8 of the RTI Act.

2. This Court does not see any reason as to why the contracts entered into between the UIDAI and the third party cannot be given under the RTI Act, 2005. The contracts have been entered into pursuant to the tenders and, therefore, it is necessary that there is a complete transparency regarding the way these contracts are awarded. The Petitioner has not sought for the details of the individuals which the external organization would be handling. However, a reading of Regulation 3(2)(m) mandates that the security policy may provide for the requirement for entering into information disclosure agreements with the personnel.

3. All the agreements entered into between the UIDAI and the external organisations which were engaged in handling grievance redressal mechanism of the UIDAI can be provided excepting the non-disclosure agreements entered into with the personnel and also the details of individuals who will be covered under the agreement. The confidentiality is to be maintained by the agencies only for the purpose of ensuring that the details of the individuals are not revealed to a third party.

4. The entire contract need not be kept a secret and there is nothing inappropriate in disclosing of the agreements more so when the recent trend is to encourage public participation in such ventures. The abovesaid details can be redacted from the agreement and the copies of the agreement, after redacting such portions, can be provided to the Petitioner.

5. Transparency forms the core of good governance, and promotes efficiency and effectiveness in the functioning of the government.

Citation: [Prashant Reddy T v. UIDAI, CWP 7865/2023; 05.10.2023, HC Delhi]

NOTES

1. Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; of the RTI Act provides that information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party is exempted from the purview of the definition of information given under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act. If the competent authority is satisfied that larger public interest warrants the disclosure of such information, then such information can be disclosed, provided that it does not include trade secrets or intellectual property which can have the impact of harming the competitive position of a third party.

2. Section 23 of the Aadhaar Act stipulates that the UIDAI, which is the authority under the Aadhaar Act, shall develop the policy, procedure and systems for issuing Aadhaar numbers to individuals and perform authentication thereof under this Act and, for this purpose, it can specify, by way of regulations, various processes relating to data management, security protocols and other technology safeguards. It has also to set up facilitation centres and grievance redressal mechanism for redressal of grievances of individuals, Registrars, enrolling agencies and other service providers. The power to make regulations for the abovementioned purposes is given under Section 54 of the Aadhaar Act.

3. The 2016 Regulations mandate that UIDAI must specify an information security policy setting out the technical and organizational measures to be adopted by the Authority and its personnel, as well as the security measures to be adopted by the agencies, advisors, consultants and other service providers engaged by the UIDAI. Regulation 3(2)(m) provides that security policy should provide for measures for fraud prevention and effective remedies in case of fraud.