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karira

Bring all PPP projects under purview of RTI Act, says CIC

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karira

As reported in economictimes.indiatimes.com on 14 September 2010:

Bring all PPP projects under purview of RTI Act, says CIC - The Economic Times

 

Bring all PPP projects under purview of RTI Act, says CIC

 

 

NEW DELHI: Central Information Commission, the final appellate authority for Right to Information (RTI) Act in the country, and policymakers have called for bringing public private partnership (PPP) projects under the purview of the transparency law.

 

The view emerged at a two-day national convention on RTI Act, which started on Monday. Speaking at a session on “RTI and PPP projects” , Planning Commission advisor Gajendra Haldea, who had framed the first model concessionaire agreement (MCA) for a highway project, said, “It is true that our agreements (with private firms) need to be fair and balanced. But it is also true that we are nowhere near perfection . It is time that RTI Act is applied to PPP projects. Just as we expect the legislation to bring transparency to government processes, it can also bring out transparency in PPP projects.”

 

This view was endorsed by information commissioners of the Central Information Commission (CIC). Central information commissioner Shailesh Gandhi opened a controversial issue of bringing all PPP projects under the purview of RTI Act by including such a clause in MCA. Mr Gandhi asked, “Why isn’t it possible for the Planning Commission to draft an model agreement that is put in the public domain before it is signed. Why can’t we add a clause in this model agreement that the agreement and all future agreements would come under the purview of RTI Act?”

 

Members of the civil society and other institutions like Public Grievances Commission pointed out a grey area in defining “public authority” for PPP projects. It was pointed out that there are private institutions — like hospitals and schools — that get institutional land from the government at very nominal rates, but the government has no control over them in terms of offering free beds and education to below poverty line (BPL) people.

 

“Aren’t these projects PPP projects? Shouldn’t they be brought under RTI Act?” asked a state information commissioner. A similar view was echoed by central information commissioner A N Tiwari. He said, “There is a tendency of in the government that everything that comes into government domain gets into a black hole. There are differences within the government over PPP projects . We need to give a serious thought to this issue.”

 

The convention was inaugurated by law minister M Veerappa Moily. Speaking at the inaugural ceremony Mr Moily emphasised the need for voluntary disclosure of information by government departments. “A sample study of the disclosures shows that these are often perfunctory and lacking in substance. This underscores the need for devising protocols and effective monitoring of suo motu disclosures ,” said Mr Moily.

 

Law minister said whistleblowers and RTI activists are instrumental in furthering the cause of transparency and need adequate protection. He asserted that the Whistleblower Bill (The Public Interest Disclosure and Protection to Persons making the Disclosure Bill) will be passed by Parliament in the forthcoming winter session.

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Atul Patankar

Does the applicability of RTI act stem from RTI Act itself or is there a scope for 'voluntary' or 'contractual' applicability? CIC SG has asked the planning commission to include a clause in the agreement for making RTI Applicable.

 

At best, this may result in some information becoming available on website, etc. But does that contract confer any rights to respective SIC/ CIC to hear appeals and award penalties, compensations etc.

 

If the RTI act is not applicable to an organisation per se, can it be made applicable by entering into agreement?

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sidmis

RTI Act and PPP Projects

as written by Atul Sharma in Business Standard/ New Delhi November 09, 2010

 

If one were to draw up a list of the five most empowering laws enacted in independent India, the Right to Information Act would surely find a place in the list. No other law has brought as much power into the hands of the “little man” as this piece of legislation.

 

Although many years late (the United States enacted the Freedom of Information Act in 1966, Australia adopted the Freedom of Information Act in 1982) the RTI Act, though a five-year-old toddler, has already earned itself a few dozen rulings in various High Courts and a handful from the Supreme Court. Most of these judgments have attempted to expand the scope of the RTI Act. Though the development of the law with regard to the Act is far from over, judicial pronouncements on its applicability to Public Private Partnership (PPP) Projects are particularly rare, leaving open the question whether or not these projects are amenable to the legislation.

 

One of the reasons for the juggernaut success of the PPP model in India is that it provides the best of two worlds. While private sector efficiencies provide the competitive edge which is the sine qua non of any business venture, partnership with the government ensures continuity, stability and most importantly credibility, which is any business’ greatest asset.

 

However, these assets are not freebies and come with strings attached -- in most cases, transparency and accountability to the public at large. While there is no doubt that the governments -- both at the Centre and the states -- are obliged to provide information sought by any person under the Act, the Indian Courts are yet to decide whether PPP projects are to be treated as commercial ventures and retained outside the purview of the Act, or subjected to the same levels of accountability as expected from a democratically elected government and its various organs.

 

The RTI activist (a term as fresh and novel as Pepsi Max) will argue that a project that involves the government in any capacity must be carried out openly and should be subject to the same checks and balances as the government itself. The entrepreneur, on the other hand, is entitled to suggest that business and governance must never be mixed, especially in today’s times when the government has made up its mind to leave business to businessmen and concentrate on governance itself.

 

It is perhaps fair to say that the underlying principle behind the PPP model would be defeated if the body so formed to execute a PPP project was expected to put in place world class facilities and practices while being scrutinized, watched and pulled up at every step of the way. More so, when sector regulators are already in place in various sectors including telecom and airports.

 

Aren’t these regulators sufficient to ensure that the interests of the people are being protected and the taxes paid by them are being utilised optimally? Or are additional checks the need of the hour? Further, are there other means of ensuring transparency or is the RTI Act the only available alternative? The questions remain open.

 

The Comptroller and Auditor General has already taken steps to bring private telecom companies under its umbrella and has cited sections 16 and 18 of the Comptroller & Auditor General's Act, 1971 as the source of its power to audit their accounts. Although the matter is subjudice, both the Delhi High Court and the Supreme Court have declined to stay the CAG from inspecting the accounts of telcos. The government has also expressed its intention to replace the existing CAG Act with a new legislation which will provide wider powers to the CAG to audit the accounts of private companies thereby pointing towards an intention to ‘regulate’ these projects and monitor them closely.

 

In a recently concluded national convention on the RTI Act, the Planning Commission advisor, Gajendra Haldea, expressed his desire to see PPP Projects subjected to the purview of the RTI Act. Many Information Commissioners present at the conference echoed the same view and even suggested the Planning Commission effect this move by inserting a clause in the Model Concession Agreement for PPP projects, wherein the concessionaire expressly accept the applicability of RTI to the project. The prevailing mood of those who influence policy making in India appears to be in favour of implementing accountability through the RTI Act.

 

However, till the time these thoughts are woven into the fabric of law by amending the Act, the question as to whether a PPP project and the bodies executing it are ‘public authorities’ under the Act remains by and large unanswered. The RTI Act requires only ‘public authorities’ to provide information to applicants.

 

The term ‘public authority’ is defined as a body formed under the Constitution, a body formed under any other law made by the Parliament or the State Legislature or a body established by way of a notification. All bodies ‘owned controlled or substantially’ financed directly or indirectly by funds provided by the government are also considered ‘public authorities’ and are required to supply information. So are non-government organisations substantially financed (directly or indirectly) by funds provided by the appropriate government.

 

Since most PPP projects are executed through the JV route, they are generally incorporated entities and are not set up under the Constitution or under any other law. However, many such projects receive funding/investment directly from the government and in some cases, through indirect means. The test which applies to PPP is the test of ‘non-government organisation substantially financed’. The Bangalore High Court, in the only authoritative judgment on the subject has observed that the Bangalore International Airport Limited (BIAL)-a PPP formed by the partnership of KSSIDC, AAI and a consortium of private airport operators, is amenable to the RTI Act. The justification provided by the High Court for its finding is this- were the concessions provided to the concessionaire by the state government (including cost of land acquired, uninterrupted supply of power and water etc.) translated into cash flows, the figure arrived at would be a ‘substantial amount’.

 

Surrendering private sector efficiencies and the ‘play in the joints’ available to the private sector may be too high a price for transparency. Perhaps, the middle path could be retaining the right to information to matters relating to the use of public assets by consumers and keeping the commercial information relating to award of contracts, financial information and such like matters out of the purview of the RTI Act. This may be done by way of an amendment to Section 8 of the Act.

 

The author is Managing Partner, Link Legal

 

RTI Act and PPP Projects

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karira

As reported by Nidhi Sharma in economictimes.indiatimes.com on 10 January 2011:

Bring PPP projects under RTI: CIC - The Economic Times

 

Bring PPP projects under RTI: CIC

 

NEW DELHI: The Central Information Commission ( CIC ., the final appellate authority for the Right to Information (RTI) Act, has asked the Planning Commission to include disclosure norms in all future public-private-partnership (PPP) projects undertaken by the Centre and the state governments.

 

Chief Information Commissioner Satyananda Mishra has written to Planning Commission deputy-chairman Montek Singh Ahluwalia to incorporate disclosure norms, so that any project which has the participation of private firms and concessionaires come under the purview of the transparency legislation. A full Commission meeting on December 28, after a detailed discussion, viewed that private companies undertaking government projects should be brought under the RTI Act. All information commissioners agreed that a specific disclosure clause should be included in the model concessionaire agreement (MCA) between the government and the private party.

 

Speaking to ET, Mishra confirmed the request sent to the Planning Commission. He said: “This request is arising out of a number of RTI applications filed in state government departments and at the central ministries for disclosing details of a project undertaken by a private consortium or a concessionaire. This is a matter on which the law is a little hazy.” As per the provisions under Chapter I of the RTI Act, the Act is applicable on any “public authority” which is “established constituted, owned, controlled, or substantially financed by funds provided directly, or indirectly by the central government, or the Union Territory administration, or by the state government”.

 

The clause “substantially financed” has also been interpreted as any firm which is financed 51% by the government. The move becomes significant with the government planning to take up most of the high-investment infrastructure projects on PPP mode.

 

Mishra said: “There is a grey area here because there are instances where land is given to private schools and hospitals on very nominal rates. There is a road project given to a private firm on build-operate-transfer (toll) basis, from say Delhi to Chandigarh. People are seeking details under the RTI Act on how the private company or institution is using that land, whether the school is giving free education to the poor, or if the toll collected is used completely for maintenance purpose.” Since there is no specific disclosure clause in any PPP project, the RTI applicant’s struggle to get information under the transparency law becomes very difficult. “We are increasingly getting these cases as appeals in CIC. We want this included in the agreement so that there is uniformity all over India.”

 

This view had also emerged in September, 2010, at the two-day national convention on the completion of five years of the implementation of the RTI Act. RTI activists had pointed out that clarity in the law was needed. The view was also supported by Gajendra Haldea, advisor (infrastructure) to Planning Commission deputy chairman.

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Atul Patankar

As reported at indianexpress.com on Mar 04 2011

 

New Delhi : The Planning Commission has shot down a proposal of the Central Information Commission (CIC) to bring private entities executing projects under the Public-Private Partnership (PPP) mode under the Right to Information (RTI) Act, arguing that it is applicable on public authority and not on private companies.

 

"RTI is not Right to Information on private companies. It pertains to information on public authority," deputy chairman of Planning Commission, Montek Singh Ahluwalia, said while emerging from a seminar here today.

 

He questioned how a concessionaire, a private firm performs its job is not a relevant issue from the RTI point of view. He was responding to queries on the chief information commissioner Satyananda Mishra's proposal on bringing private firms under RTI ambit.

 

Currently the Act doesn't refer to PPP projects. A public authority, as defined under Section 2(h) of the RTI Act includes a non-governmental body only if it is substantially financed by the Centre.

 

Mishra had advised the plan panel last month to modify its Model Concession Agreement to include these firms under the RTI ambit.

 

The CIC had contended that since the government provided substantial resources for PPP projects, the PPP entity should be deemed as a public authority and hence be made accountable under the RTI Act.

 

But Ahluwalia disagreed with the CIC's contention and instead reasoned that RTI does not apply to the person performing the contract as that is a private entity and RTI applications should concentrate on the public sector component of the PPP project.

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karira

Please also read some relevant threads in the following search results:

 

Google

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karira

As reported by Tanu Sharma in indianexpress.com on 03 March 2011:

Bring PPP under RTI, CIC tells Plan panel

 

Bring PPP under RTI, CIC tells Plan panel

 

Central Information Commissioner Satyananda Mishra has written to the Planning Commission suggesting that all future contracts entered into by the government with a private firm under the Public Private Partnership (PPP) arrangement should be in the public domain and brought under the Right to Information Act.

 

At present, the Act doesn’t refer to PPP contracts.

 

Saying that big-ticket infrastructure projects are mostly via the PPP route and involve “substantial amount of money,” Mishra has, in a recent letter addressed to Planning Commission Deputy Chairman Montek Singh Ahluwalia, suggested that at the stage of proposal, the PPP agreement should be published on the Ministry or department’s website.

 

He urged the Plan panel to consider that a PPP entity should be deemed to be a public authority for the purpose of RTI Act.

 

A public authority, as defined under Section 2(h) of the RTI Act includes a non-governmental body only if it is substantially financed by the Central government. Mishra uses this argument to make his case saying that in all projects handed over to a PPP entity for building, operating or maintaining, “the land, if not any other resources, given by the government forms a vital component of the project and to that extent, can by deemed to be substantial financing.”

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karira

The letter sent by the CIC to the Planning Commission, regarding bringing PPP projects under RTI, is attached to this post.

Letter-To-DyChairman-on-PPP.pdf

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karira

As reported by PTI in msn.com on 4 March 2011:

Plan panel seeks Law Min''s view on bringing firms under RTI - *Business News - News - MSN India

 

Plan panel seeks Law Min''s view on bringing firms under RTI

 

New Delhi, Mar 4 (PTI) The Planning Commission today said it has sought Law Ministry''s opinion on bringing private firms executing public private partnership (PPP) projects under the ambit of Right to Information (RTI) Act.

 

"The letter of the Central Information Commission has been referred by the Planning Commission to the Law Ministry for advice regarding appropriate response," an official statement said.

 

Chief Information Commissioner Satyananda Mishra in its letter last month had asked the Planning Commission to amend the model concession agreement (MCA) to ensure compliance of RTI Act by private entities executing the PPP projects.

 

The Commission, it added, was in favour of full disclosure by public authorities about PPP projects and their performance under them.

 

It further said that the Planning Commission can neither expand nor restrict their (information commissions) role and it was for the information commissions to decide, whether and to what extent, the provisions of RTI Act are attracted by the PPP concessionaires.

 

The government is implementing several large infrastructure projects in sectors like airports, ports, road etc. under the PPP mode.

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karira

An article in livemint.com on 06 March 2011:

More than just asphalt - Views - livemint.com

 

More than just asphalt

 

The private sector is a big participant in developing infrastructure, often in the form of PPPs

 

Infrastructure spending is a big item on the government’s agenda. In the 2011-12 budget alone, Rs2.14 trillion has been allocated for this sector, amounting to 48.5% of the gross budgetary support to Plan expenditure. Prime Minister Manmohan Singh has on more than one occasion said the country needs a huge investment for infrastructure. Just as often, he has mentioned a $1 trillion requirement during the 12th Plan (2012-17).

 

The private sector is a big participant in developing infrastructure, often in the form of public-private partnerships (PPPs). Large sums of money are passed on to private builders and firms as upfront transfers in the form of viability gap funding, annuity payments and through other modes.

 

Yet, this important innovation is beyond the pale of public scrutiny. The Right to Information (RTI) Act does not include PPPs. Section 2(h) of the Act specifies that any non-government organization substantially funded by the government can be classed as a public authority and hence brought under the cover of the RTI Act. There is, however, a great deal of resistance to allow a careful look at the working of PPPs through RTI. Recently, deputy chairman of the Planning Commission Montek Singh Ahluwalia questioned the link between the performance of a project concessionaire’s work with RTI.

 

The link is obvious. Public resources under the government’s control, such as land and money, are often transferred to private firms for infrastructure projects. For example, the government on average pays an annuity of around Rs5,200 crore for highway projects. By one estimate, its liability on this account is close to a huge Rs83,000 crore. Surely such sums merit a closer look at the functioning of PPPs, more so when a significant amount of risk from these projects lies with the government and not individual builders. Originally, the rationale for involving the private sector was the government’s inability to fund and execute big projects. That has been lost sight of.

 

The fear that such tools can turn into publicly organized witch hunts against builders/firms to “settle scores”, or that they will become a playground for business rivalries, is overstated. The information commissioners implementing RTI are seasoned civil servants and there are multiple appellate layers built into the system to eliminate any mala fide goals.

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karira

As reported by PTI in zeenews.com on 13 March 2011:

PPP entities should be under RTI ambit: Activists

 

PPP entities should be under RTI ambit: Activists

 

Shillong: A week after the Planning Commission rejected its proposal, the third National RTI Convention here today said that all PPP entities, political parties, trade unions and NGOs should be brought under the purview of the RTI Act.

 

"Public-Private Partnership (PPP) entities, political parties, trade unions, NGOs should be brought under RTI purview. Procedures and rules should be fine tuned to facilitate access of information from these bodies," said one of the resolutions in the 'Shillong Declaration,' read at the conclusion of the three-day convention.

 

 

 

Last week, the Planning Commission had shot down a proposal of the Central Information Commission (CIC) to bring private entities executing projects under the PPP mode for the Right to Information (RTI) Act, arguing that it is applicable on public authority and not on private companies.

 

Another resolution stated that all political parties should be declared as public authorities under the Act.

 

"Election of office bearers, use of funds by political parties should be transparent. Public representatives should declare assets and liabilities proactively every year, besides being transparent in the usage of MP and MLA funds," the resolution stated.

 

Besides seeking proper suo moto disclosure under section 4 of the RTI Act and moral and legal responsibility on the part of the government and information commissioners to ensure protection of RTI activists, the Shillong Declaration called for an anti-corruption commission which can make sure that the information collected under RTI can be taken forward and action taken.

 

"There should be a process by which all legislations or bills before going through the parliamentary process be put in public domain and there is public consultation before enactment. Public views coming from the discussions should be reflected in the final bill," the declaration read by environmentalist and RTI activist Shekhar Singh said.

 

The convention was attended by over 1,000 activists from across the country.

 

In another significant resolution, the convention demanded withdrawal of the exemptions given under Section 24 to security and intelligence agencies which the Declaration described as "irrational and contrary to national interest".

 

Transparency of religious institutions and the use of public money for religious purpose and bringing of government expenditure under social and public audits were among the other resolutions adopted in the Shillong Declaration.

 

The national convention, the first after the enactment of the RTI, was attended by ex-CJI J S Verma, former Chief Justice of Delhi High Court A L Shah, former chief election commissioner J M Lyngdoh, activists Aruna Roy and other noted RTI activists from across the country.

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karira

As reported by Tanu Sharma in indianexpress.com on 26 March 2011:

No info on PPP deals: Montek

 

No info on PPP deals: Montek

 

The Planning Commission on Friday said it does not have control over information about Public Private Partnership agreements as these are executed by individual ministries and departments.

 

In his reply to CIC Satyananda Mishra’s letter, Deputy Chairman Montek Singh Ahluwalia said it would “not be appropriate to enhance or reduce jurisdiction of the Information Commissions through a contractual agreement in the concession agreements.”

 

He added: “Where a Model Concession Agreements is followed, any person can obtain certified copies of these documents from the respective concessionaires.”

 

As reported by The Indian Express, Mishra had written to the plan panel, recommending that information about PPP contracts should be made available under the RTI Act.

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karira

As reported by Chetan Chauhan in hindustantimes.com on 17 July 2011:

http://www.hindustantimes.com/PPP-projects-not-in-ambit-of-RTI-says-law-ministry/Article1-722274.aspx

 

PPP projects not in ambit of RTI, says law ministry

 

With the government serving a severe blow to transparency in the Public Private Partnership (PPP) projects worth one trillion rupees the Central Information Commission has decided to seek Prime Minister’s Manmohan Singh’s intervention. “We will be writing to the Prime Minister that there should not be a blanket ban on making RTI applicable to PPP projects,” said an Information Commissioner, following a decision at the commission’s last meeting.

 

The CIC wanted the government to have a template for providing information to citizens regarding the PPP projects to make them “transparent and accountable”. It had asked the Planning Commission to insert a clause for providing information to citizens in the agreement with the private partners.

 

But, its endeavor was shot down by the Law ministry this month when it overruled application of RTI to PPP projects saying the law does not allow private executioners of the projects to be declared public authorities.

 

The reluctant plan panel had sought Law ministry’s opinion on the commission’s letter after panel deputy chairperson Montek Singh Ahluwalia went public with his views against making RTI applicable to the PPP projects.

 

The PPP projects have entered public service areas such as health, education, social infrastructure and power distribution, which impact citizens directly. It is estimated that India is executing PPP projects worth one trillion rupees.

 

In wake of this, there had been growing demand from civil society to bring these projects under the RTI ambit to evaluate public service delivery, erstwhile domain of the government.

 

“With time role of private partners in providing public service has increased. The government’s stand of not making PPP projects accountable to people is not acceptable and we want some mechanism through which people can seek information,” said Venkatesh Nayak, co-convener of the NGO National Campaign for People’s Right to Information (NCPRI).

 

The CIC had brought private distribution companies in Delhi and National Stock Exchange, two major private partners in service utilities, under the RTI ambit but its orders were stayed by Delhi High Court.

 

“Our view is public… now the government has to take a call for ensuring transparency,” said Information Commissioner Shailesh Gandhi, who has earlier termed the government’s decision to exempt CBI from purview of RTI as violation of the transparency law.

 

Not differing with him, Chief Information Commissioner Satyananda Mishra felt that they have done their job and it is now for the civil society to take up the issue.

 

With this being a second blow to RTI within a month after exemption of CBI from RTI, the civil society members will be taking up the issue at the next Sonia Gandhi headed National Advisory Council meeting. “We as civil society will raise the issue at an appropriate form,” Nayak said.

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karira

As reported in moneylife.in on 06 September 2011:

http://moneylife.in/article/78/19486.html

 

Private-public partnerships must come under RTI, says CIC

 

Shailesh Gandhi, central information commissioner, says that with more and more public projects handled by PPPs, people have a right to know what is happening to these assets. He was speaking at a Moneylife seminar at the weekend

 

Public-private partnerships (PPPs) must come under the purview of the Right to Information (RTI) Act because they concern public assets and resources, says Shailesh Gandhi, central information commissioner.

 

"PPPs must be brought under the RTI. A lot of public assets, I think, are going to be shifted to these entities in the coming years. So, people have a right to know what is happening to those assets," Mr Gandhi says. "If information is denied, it is like a fraud, where public assets are privatised without consent."

 

He was speaking at a seminar on using the RTI effectively, hosted by Moneylife Foundation on Saturday.

 

Mr Gandhi says it is unfortunate that in many cases, public information officers (PIOs) reply that PPP documents do not exist, or that they are not traceable.

 

The central information commissioner mentioned that he had come across cases where documents were declared 'missing' within three years of signing of the contract. "How can they just go missing within three years? Even surprisingly, how does the contract itself disappear?" he wondered.

 

According to some activists, such 'missing' documents cases make way for new, or 'altered' documents, which differ substantially from the original ones. In many cases, facts and figures about the quantum of resources allotted to PPP projects are changed, they say. Therefore, they suggest that all contracts and related documents should be put up on the company website, or in some other public domain, as soon as they are signed, so that there is no chance of them getting lost.

 

Narrating from his personal experience, Mr Gandhi said that the truth can be revealed, even when documents are declared missing. "In a similar case the PIO said that the documents were not traceable. I asked him to report that the documents have been stolen. He was aghast and he refused. So I asked him to give me the evidence that the documents were not stolen. In the end he had to produce either the file or the backup," Mr Gandhi said.

 

According to Mr Gandhi, PPPs are 'substantially funded' by the government and hence should be subject to the RTI, even if the government may not hold a majority stake, or control in the project. Many government infrastructure and urban development projects are now handled by PPPs.

 

In a letter to Montek Singh Ahluwalia, deputy chairman of the Planning Commission, Satyananda Mishra, chief information commissioner has said, "In all such projects which are handed over to a PPP entity … the land, if not any other resource, given by the government forms a vital component of the project … and can be deemed to be substantial funding. Thus, a PPP entity should be deemed to be a public authority for the purpose of the RTI Act."

 

"The problem is that the moment information is sought about such an entity, public information officers deny information by saying that it is exempt from the RTI, because it is about a third party, and that the information is of commercial importance. That is not what the Act says," said Mr Gandhi.

 

He cited section 8(1) (d) that lists the exemptions. The section says that the disclosure must not 'harm' the third party whose views should be taken into account while replying to the query. The 'competent authority' must be satisfied that the larger public interest warrants the disclosure of information. "The other reason PIOs give for these queries about PPPs is that the information is held in a 'fiduciary' capacity. However, public interest overrides such restrictions," said Mr Gandhi.

 

The Central Information Commission, in a recent ruling, also spoke in favour of bringing PPPs under the RTI. In the order, Mr Gandhi said that even if private bodies resisted the RTI, it was the duty of the government to provide information to the public. The order also referred to guidelines issued by the Comptroller and Auditor General of India (CAG) that say the functioning of PPPs must be accountable and transparent.

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dr.s.malhotra

Bring public-pvt projects under RTI Act: CIC

 

Anahita MukherjiAnahita Mukherji, TNN | Sep 26, 2011, 02.00AM IST

can be seen here : http://timesofindia.indiatimes.com/city/mumbai/Bring-public-pvt-projects-under-RTI-Act-CIC/articleshow/10120133.cms

 

 

MUMBAI: If you are seeking information about a creaking flyover or inflated electricity tariffs under the Right to Information (RTI) Act, what are the chances that your queries will be answered? That may well depend on whether the service or utility is provided by a public body or a public-private partnership (PPP).

 

While the central information commission treats PPPs as public bodies that should come under the RTI; many have wriggled out of releasing information on the grounds that the RTI Act does not specifically mention PPPs. This is particularly alarming since the coming decade will see an increasing number of projects under PPP. In a bid to bring PPPs under the ambit of the RTI, chief information commissioner Satyananda Mishra wrote to the Planning Commission on the matter.

 

However, he received a non-committal reply from Montek Singh Ahluwalia, deputy chairperson of the planning panel. The result? There is still no clarity on the matter. While central information commissioners like Shailesh Gandhi have passed numerous orders directing PPPs to part with information under the RTI, PPPs rush to courts seeking a stay order. The case remains pending in court for years.

 

Mishra's letter states that according to the RTI Act, public authorities include non-government bodies only if they are substantially financed by the Centre. "In all such projects, which are handed over to a PPP entity for building, operating or maintaining, the land, if not any other resource, given by the government forms a vital component of the project and to that extent, can be deemed to be substantial financing," the letter states, adding that PPPs should be considered public authorities under the RTI.

 

According to Mishra's letter, all PPP proposals should be published so that they can invite comments and objections from the public before being finalized. He also wants special purpose vehicles (companies formed as a result of PPPs) to be considered as public bodies. His letter further states that the public information officer of the ministry, department or public sector that forms a PPP should be responsible for providing information about the PPP.

 

But Ahluwalia replied, "It may not be appropriate to expand or reduce the jurisdiction of the information commissions through a contractual arrangement in the concession agreements." The Planning Commission forwarded the matter to the department of legal affairs for advice, which in turn, further passed it on to the departments of personnel and training and the ministry of finance.

 

"If PPPs are not brought under the purview of the RTI, this amounts to citizens' assets being given away to private parties without any accountability," said Shailesh Gandhi.

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karira

As reported by Himanshi Dhawan in timesofindia.indiatimes.com on 29 Sep 2011:

http://timesofindia.indiatimes.com/articleshow/10164365.cms

 

DoPT favours disclosure of PPP agreement details

 

NEW DELHI: The Central Information Commission has found support from the Department of Personnel and Training (DoPT) on the controversial issue of increased disclosure of public private partnership (PPP) agreements. The DoPT is of the view that details of all PPP projects should be disclosed on a suo-moto basis for greater transparency.

 

The department was responding to an RTI application filed by activist Venkatesh Nayak asking for audit reports of PPP projects. This is in sharp contrast to the Planning Commission's view that PPP agreements are contracts with private entities and do not come under the purview of RTI Act. The CIC had in January asked the plan panel to consider modifications within PPP agreements to ensure public disclosure of details related to infrastructure projects that were being funded by the state exchequer.

 

Responding to chief information commissioner Satyananda Mishra's suggestions on bringing PPP projects under the purview of the Act, DoPT said, "A decision is to be taken by the respective ministry or ministry of finance which is responsible for laying down policies for PPP agreements. However, if such practice is built into the system, it would lead to greater transparency. What is equally important is that once PPP projects are approved, all details of the project, periodic payments, if any, made to the concessionaire and achievements against the contracts should be disclosed on a suo-moto basis by the concerned ministry/department on a regular basis.''

 

While it turned down CIC's suggestion for making amendments to the definition of 'public authority' in the RTI Act terming it illegal, the DoPT said, "It would not be legal to expand a definition of an Act through a private arrangement of a contract."

 

The department added that draft concession agreements should include relevant information allowing the ministry to disclose information on behalf of the private entity.

 

Incidentally, the plan panel had turned down the CIC's views on making changes in the PPP agreement but sought the law ministry's views in the matter.

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karira

As reported by PTI in governancenow.com on 13 Oct 2011:

http://governancenow.com/news/regular-story/bring-ppp-projects-under-rti

 

'Bring PPP projects under RTI'

RTI activist writes an open letter to the president

 

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Mumbai based RTI activist Anil Galgali has written an open letter to the president asking her to bring all consortium's working on PPP projects under the purview of RTI Act.

 

Galgali has said that since the projects carried out by the private sector companies are of vital public interest, the information about all the aspects of these projects must be brought under public domain. "There are chances that the private companies may misuse the authority given to them while carrying out these projects and make money through illegal means. This can spread in many sectors to a large extent and hence create a lot of room for scams and may even go out of control. RTI is an effective tool to curb corruption and bring a lot of information before public in general," said the letter.

 

The country, especially metro cities and even the tier II cities such as Hyderabad, Bangaluru and Pune are witnessing a sea of change with a lot of importance being given to infrastructure development. Projects ranging from power sector to Mass Rapid Transit System (MRTS) such as metro railways are being conceived and constructed using a unique financial model of PPP- which is a brain child of our Planning Commission. The basic idea behind the PPP model is to save on government revenue and involvement of private sector companies for more professional services in various sectors. While the PPP model has its advantages, there are certain areas of concerns, which I would like to point out for your kind perusal.

 

Citing the example of Mumbai Metro, Glhali said,"Both metro lines are to be constructed by Reliance Infrastructure along with other foreign private companies. While my demand to bring Reliance Infrastructure under the purview of RTI has been accepted by state information commissioner (CIC), the same has been challenged by the company in the Bombay High Court."

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Sajib Nandi

Montek for PPP projects to come under RTI

 

As reported by timesofindia.indiatimes.com on Oct 21, 2011:

http://timesofindia.indiatimes.com/india/Montek-for-PPP-projects-to-come-under-RTI/articleshow/10435283.cms

 

NEW DELHI: Planning Commission deputy chairman Montek Singh Ahluwalia on Thursday said Public-Private-Partnership (PPP) projects should be covered under Right to Information (RTI) Act, but government agencies involved in the projects should be asked to provide information under the law.

 

Ahluwalia was in favour of full disclosure by public authorities of all relevant aspects of PPPs and performance under them. "PPP should be covered under RTI Act, but government agency should reply to the information sought," he said.

 

The deputy chairman argued that RTI Act could not apply to private companies as under the information law, only public authorities were covered. He was reacting to a question at the economic editors' conference to a letter written by chief information commissioner Satyananda Mishra to him suggesting that conditions should be built into every PPP agreement requiring the respective concessionaire to provide information regarding their projects under RTI Act.

 

The CIC had written to the Planning Commission that all future contracts under PPP should be made public since public money was involved. At present, the Act does not refer to PPP contracts. Mishra had asked the Plan panel to consider a PPP entity to be deemed to be a public authority for the purpose of RTI Act.

 

A public authority under the RTI Act can include a non-governmental body only if it is substantially financed by the central government. Mishra used this argument to make his case saying that in all projects handed over to a PPP entity for building, operating or maintaining, the land, if not any other resource, given by the government formed a vital component of the project and to that extent, could be said to be substantial financing.

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karira

A column by SHYAMALA SHUKLA in financialexpress.com on 27 Oct 2011:

http://www.financialexpress.com/news/column-transparency-in-ppp-programme/865677/0

 

Column : Transparency in PPP programme

 

During the last six months, the Indian media and government have discussed, somewhat intensely, the application of the RTI Act to PPPs. The government has done its utmost to resist all pressures, culminating in the Planning Commission's pronouncement on the inapplicability of the Act to PPP projects.

 

India has been lauded by all and sundry for a tremendous scaling up of its PPP programme in a short period to the extent that today there are over 700 recorded operational PPPs in the state and Central sectors. The government, the private sector and everyone else is in a celebratory mood. True, India's performance in handling projects up to the contract stage has been quite commendable. However, what has been less commendable is the lack of information in the public domain about the contracts and worse, lack of information within the government about these projects. During a seminar on PPPs in the World Bank in June this year, I observed that hardly any of the ‘experts’ pointed out the lack of information and transparency in India's PPP programme post- contract and the long-term consequences of this black box kind of situation. It is good for everyone to celebrate and, moreover, take credit when things are yet to go bad, but to be totally devoid of caution is not a good sign. The telecom scandal is an example of what happens when there is blatant disregard of transparency. As far as its PPP programme is concerned, it is not too late for the government to be more forthcoming.

 

First, the government should place all project contracts in the public domain. Today, while the standard contracts do become available with some effort, these are not readily available on the ministry of finance Website. An old version of its standard contract is published on the NHAI site, but the amended version based on the BK Chaturvedi Committee recommendations is not easily available. The ministry of finance can perhaps learn from the UK Treasury, which publishes amended versions of its standard contracts along with version number on its website. India is perhaps already in version 3 or 4 but we do not know for sure how many versions we have gone through. Individual contracts are not available at all, except one partial contract on the NHAI site. I can imagine one of my colleagues in government pointing out with a condescending air that contracts cannot be published due to issues of confidential commercial information that companies are not obliged to disclose. Well, this is one issue that our standard contracts can deal with. We need a standard clause in these contracts on what constitutes confidential information for the purpose of the contract, along with provisions for more specificity in individual contracts. There is no sense in blacking out all information in the name of confidentiality.

 

Second, the government can place in the public domain the information on the installments of VGF and the annuities it will pay or has paid to project companies with dates and milestones associated with the payments. Also, information on expectations of traffic and revenue on which VGF allocations and payments are based could be made available in the same database, along with individual tripartite agreements signed under the scheme.

 

Third, it can place before parliament, during the presentation of the annual budget, information about the contingent liabilities arising from project agreements signed during the year in each sector, along with information on cumulative contingent liabilities. A methodology to measure the risk of these liabilities needs to be developed, and the current measure needs to be placed before parliament and the public during the budget every year.

 

Fourth, it can amend the C&AG (DPC) Act 1971 to provide for routine audits of PPP projects. Under the present provisions, the supreme audit authority of India can access documents that are available with the public authority for purposes of audit, but cannot access documents and financial information available only with the PPP project company. Countries such as Canada, the UK and New Zealand, to name a few, have brought PPPs under the purview of their supreme audit authorities. Audits of PPP projects are essential since the government has transferred its assets, paid viability gap funding and, in some cases, paid equity to the project company; in addition, in most cases, the PPP projects come with non-compete clauses and a host of contingent liabilities taken on by government. Unless projects are routinely audited based on the magnitude of government exposure or some other such criterion, the government would be exposing itself to the ultimate risk of not having enough information to manage its programmes effectively.

 

Fifth, the government needs to be aware of details of equity sales in PPP projects. Many of our projects calculate the viability gap based on a certain level of return on equity, and government subsidies are paid to fill this gap. The CII, as quoted in the BK Chaturvedi Committee Report, has stated that equity sales report at least 100% premium. This would mean that the returns to equity investors are much higher than the assumptions used for our calculations. It may be argued that it is easy to do an ex-post analysis, but is it not necessary to follow up such issues at least so that (i) this knowledge can be applied to make our methodologies sharper and (ii) arrangements can be negotiated for equity investors to share such windfalls with government?

 

But this is not enough. Looking at recent court orders on the applicability of the RTI Act to private companies providing public services and a similar interpretation by several information commissioners, the government must stop resisting what is already provided for by the Act. Such a decision may yet help the government regain some of its lost credibility.

 

The author has worked as director of infrastructure in the Department of Economic Affairs, Ministry of Finance, Government of India

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Dr V S Prasanna Rajan

The government has already paved a legal way for bringing the PPP's into RTI act. The basis for this statement are as follows:

 

1. The government has ratified the UNCAC recently in March 2011.

2. The ratification implies that the definitions of UNCAC are to be taken into account in Indian laws.

3. Then as per the definition of Article 2(a)(ii) & (iii) of the UNCAC which states that-" “Public official” shall mean:(ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party;

(iii) any other person defined as a ‘public official’ in the domestic law of a State Party. However, for the purpose of some specific measures contained in Chapter II of this Convention, ‘public official’ may mean any person who performs a public function or provides a public service as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party;

4. The word 'person' in terms of Section 3(42) of General Clauses Act, 1897 the word Person shall include any company or association or body of individuals, whether incorporated or not” .

5. As per the Judgment of the Honorable Madras High Court Dated.06.04.2010 in W.P.NO.9794 of 2008 and M.P. NOs. 1 and 2 of 2008, it is held that under section 2h(d) of the RTI Act, the government can notify even a private entity as a public authority. Moreover, a public authority need not be a "State"

 

All the above mentioned facts put together, justifies the inclusion of the PPP's under RTI act.

 

vsprajan

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karira

An article by SEBASTIAN PT in business.outlookindia.com on 26 Nov 2011:

business.outlookindia.com | Drop The Iron Curtain

 

PPPS - Drop The Iron Curtain

 

Private players dispute RTI covering them in public-private JVs, even though it involves public funds. It’s time to come clean on this.

 

Try finding out the different sources of revenue for the month of, say, August of the Delhi International Airport (DIAL), the consortium modernising the Capital’s airport. It could be revenues from its joint ventures, for instance. Chances are you will hit a wall. As per the 2006 public private partnership pact, DIAL is required to pay to the public sector Airports Authority of India (AAI) an annual fee of 45.99% of its gross revenues. With AAI having a 26% stake in DIAL and the latter providing public services, a citizen may want to know. AAI may provide details of the concession agreement and what not; but may have no clue about the different revenue streams. And, DIAL does not think it comes under the Right to Information (RTI) Act, 2005. For all the might of the RTI, there are grey (some would call it dark) areas when it comes to public private partnership projects.

 

The Central Information Commission (CIC) held that the DIAL was a ‘public authority’ as defined under the RTI Act, but the latter got a stay from the court this May. This is just one example. The list of PPP entities unwilling to divulge information to the public, though functioning as quasi-government bodies, is growing longer by the day—from the UTI Asset Management to the Mumbai International Airport (MIAL).

 

Undoubtedly, in the country’s template for growth, harnessing private sector investment and operational efficiencies to provide public assets and services is the way forward. But opaqueness could make it a platform for looting resources through the unholy political-business-bureaucracy nexus. There are more than 800 PPPs in various stages and in diverse segments, including roads, ports, education, hospitals and so on. The Department of Economic Affairs puts the estimated costs at above Rs 383,300 crore as of July 2011. And, 50% of PPP funding during the XII Plan is expected to come via the private route. Surely, the idea of transparency and accountability can’t be taken lightly.

 

“All PPPs should be fully RTI compliant. The world is moving towards larger transparency and private players need to come out of their cocoon,” says former Finance Minister Yashwant Sinha.

 

Public Funds

 

The main argument for getting private players under the RTI purview is that they come under the definition of ‘public authority’ as per Section 2(h) of the Act. Here, this includes “non-government organisation substantially financed, directly or indirectly by funds” provided by the government. “Whenever a government gives something, it is a partnership. It could be in the form of public funding or giving of monopoly or land or rights,” says Information Commissioner Shailesh Gandhi. The various concessions and the viability gap funding that a PPP gets receive can amount to substantial financing, says Venkatesh Nayak of Commonwealth Human Rights Initiative.

 

That aside, PPPs are subject to the audit of the Comptroller and Auditor General (CAG) of India. They are not considered as the outcomes of any privatisation policy in the CAG’s auditing guidelines. Rather, para 1.5.1 says the main difference between PPP and privatisation is that in the former there is no permanent transfer of ownership of the assets to the private partner. The responsibility and accountability to deliver the goods and services efficiently remains with the public sector, and is not diluted by the PPP arrangement. “There is no harm in PPPs coming under the RTI Act,” says Arup Roy Choudhary, who wears the hats of NTPC Chairman and Chairman of SCOPE. He points out all listed companies are accountable to their shareholders, and this logic is extendable to the RTI Act too.

 

Drive for Profit

 

The ‘profit drive’ of the private sector should be leveraged for the public good, not profiteering. One reason some private entities shy away from public disclosure could be that the revenue models are skewed heavily in their favour. It could be through corruption, or just inexperience and inefficiency on the part of government officials in drafting proper pacts. “The revenue sharing should be available to the public,” says G Raghuram, who teaches at IIM Ahmedabad. He points to two instances. The GMR-led consortium was clearly doing nothing illegal when some revenue was routed to its associate companies via sub-contracts. Though it may have dented the government’s share, DIAL just interpreted the contract in its way. In fact, the CAG termed the revenue sharing model between DIAL and AAI as “defective”, due to which the latter was losing out on revenue. Similarly, a port terminal given in the PPP mode was with the clear understanding that the facilities would be available to all, and revenues shared. However, the private player monopolised the entire terminal by giving priority berthing to its parent. “This is highway robbery,” says Gandhi.

 

To avoid scenarios of questionable pacts, the Planning Commission has come out with model concession agreements for different PPPs. But it still needs much clarity. A more legitimate fear of many private players is that divulging of information could affect their commercial interests. It could compromise their competitive edge. Choudhary feels these are misplaced fears: “The RTI Act should not be looked at as something draconian.”

 

Section 8(d) of the Act clearly prohibits divulging information regarding “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.” However, private companies use this section to stay opaque.

 

“We have no problem with whatever we share with the government being made available to the public,” says Ashok Kheny, Managing Director of Nandi Infrastructure Corridor Enterprises (NICE), which is the country’s first public-private partnership in the road segment. Kheny has had many run-ins with politicians. “Vested interests misuse the Act. Frivolous RTI appeals can delay projects,” he says. About half the NGOs “blackmail” and demand money, he says. Many a time government officials are in cahoots, too. Officials may give only partial information, which may appear to skew facts, or just claim that the file is missing (this way they will not be penalised under the Act). “Several times we have produced the documents from our side to the courts. NICE won its 570th court case this October,” he says.

 

Gandhi agrees that all is not well in many government departments. Files are not maintained as mandated. He was once told a PPP agreement, where a private player was given land and assets, was missing. “I was horrified,” says Gandhi, as whatever the private company says would stand. “What if the private company produces a brand new document?” says Gandhi. There may be nothing to verify it.

 

So, when private entities deny information, the matter goes to the Central Information Commission on the question of ‘public authority’. More often, companies don’t accept the CIC order. “Our judicial system can’t deliver on time. Anyone who has money and power can drag on a case for decades,” says Gandhi. On the other hand, the Commission does not have the wherewithal, nor does the ordinary petitioner. “Every SPV may claim that it does not come under the definition of public authority and litigations will mount,” says Chief Information Commissioner Satyananda Mishra. And this is a major worry.

 

The Way Out

 

Mishra points to the letter he sent to the Planning Commission this January wherein he made three proposals. One, every PPP proposal, including the draft agreement, should be published for inviting public comments and objections before finalising it. Two, the PPP agreement should include a necessary condition that the Special Purpose Vehicle or any other entity that comes into being as a result of the PPP would be a public authority and RTI complaint. This could avoid litigations. Third, alternately enabling the Central Public Information Officer of the government arm to secure all information from the PPP entity.

 

“In my personal opinion, the concessionaire [the entity actually implementing the PPP] should come under the RTI,” says Montek S Ahluwalia, Deputy Chairman of the Planning Commission. But this is seen as inadequate. “It is very unfortunate the Planning Commission feels the interest of private partners as more important than the public,” says Gandhi. Predictably, the plan panel passed the buck to the Law Ministry. And, reports indicate the government being wary of bringing private players wholly under the RTI.

 

That said, the Department of Economic Affairs has in October published a Draft National PPP Policy on its website for comments. Nayak says government processes need to be transparent with proper monitoring and regulation of PPPs. “All PPP project-related clearances and approvals from the assessment stage and all payments made must be publicly disclosed. Importantly, it should have a people-oriented approach,” he says.

 

The Draft Policy also allows for modifications of a PPP contract after it has been awarded to a private entity under specific conditions. Kheny, however, feels there should be no interruption till a project is completed. Having executed many projects in the US such as the Central City Tunnel in Philadelphia and the Detroit People Mover, Kheny says: “There, I signed only a single-page agreement.” He says all studies regarding a project are done before a contract is signed; and, action against any discrepancy would be strictly taken—but after a project is completed. Perhaps the need is to be simple and clear in rules, and transparent in dealings. RTI would just be the way out. “Basically, apprehensions exist because we are yet to get used to it,” says Choudhary. The moment that happens, perhaps it will be less talked about.

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Atul Patankar

As reported at governancenow.com on NOVEMBER 30 2011

 

Public-Private Partnerships under RTI Act: Govt

 

"Any information about Public Private partnership arrangement which can be disclosed under the RTI Act may be accessed through Public Authority which has entered into the said arrangement"

 

PTI | November 30 2011

Information about Public-Private partnerships can be accessed by citizens under the Right to Information Act, Lok Sabha was informed today.

 

"Any information about Public Private partnership arrangement which can be disclosed under the RTI Act may be accessed through Public Authority which has entered into the said arrangement," Minister of State for Personnel, Public Grievances and Pensions V Narayanasamy said.

 

He said RTI Act 2005 is applicable to public authorities as defined under section 2(h) of the Act, which includes bodies owned, controlled or substantially financed by the Government and non-government organisation substantially financed directly or indirectly by funds provided by the appropriate government.

 

"Further as per section 2(f) of the Act, information relating to any private body, which can be accessed by public authority under any other law for the time being in force, is already under the purviews of the RTI Act, 2005," he said.

 

Replying to a separate question, the minister said no proposal to amend the RTI Act is under the consideration of the Government.

 

"It is the view of the Government that RTI Act, 2005 has contributed to improvement in Transparency and Accountability in the functioning of Government," he said.

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