Indian CIC, Planning Agency Debate RTI Coverage

4 March 2011

The Indian Central Information Commission (CIC) has proposed bringing more transparency to the private corporations participating in the government’s public private partnership (PPP) programs, but the request appears to be meeting with resistance, or not.

The story began when the CIC asked the Planning Commission to insert an right to information clause into agreements with the private partners.

However, the deputy chairman of Planning Commission, Montek Singh Ahluwalia, said March 3, “RTI is not Right to Information on private companies. It pertains to information on public authority,” according to quotes obtained by Indian Express.

“How can a concessionaire, a private company under PPP, perform its job? What it does to perform this…is not a relevant issue from RTI Act’s point of view,” Ahluwalia said, according to a Times of India report. The story continued: “Disagreeing with the contention of the CIC, Ahluwalia said, `RTI applications do not apply to the person who is performing the contract, that is a private company. These (RTI requests) should concentrate on the public sector component of a PPP project.’ “

With newspaper headlines saying the CIC idea  had been rejected, the government subsequently issued a clarification about Ahluwalia’s remarks, stating:

Some observations made by Deputy Chairman, Planning Commission Mr Montek Singh Ahluwalia regarding application of the RTI Act to PPP projects have been quoted out of context by media. The factual position is, therefore, being clarified through this Press Release.

The Chief Information Commissioner had sent a letter to the Dy. Chairman, Planning Commission suggesting that conditions should be built into every PPP agreement requiring the respective concessionaire to provide information regarding their projects under the RTI Act.

The aforesaid letter of CIC has been referred by the Planning Commission to the Law Ministry for advice regarding the appropriate response. This is because Information Commissions are statutory authorities, and their role and jurisdiction is determined by the RTI Act. Any clarification by the Planning Commission can neither expand nor restrict their role. It is for the Information Commissions to decide, whether and to what extent, the provisions of RTI Act are attracted by the PPP concessionaires. The Deputy Chairman is in favour of full disclosure by public authorities of all relevant aspects of PPPs and performance under them.

It is further clarified that concession agreements are executed by the respective Ministries and not by the Planning Commission. So far as the Planning Commission is concerned, it has published several Model Concession Agreements (MCAs) for PPP projects. These MCAs provide for full disclosure of the Concession Agreement, the Maintenance Manual, the Maintenance Programme and the Maintenance Requirements in respect of each project. Where an MCA is followed, any person can obtain certified copies of these documents from the respective concessionaires.

Background: CIC Request

The request to bring PPP participants under the RTI umbrella came in a January letter from the CIC.

“We feel, once such conditions are built into the PPP agreements and the private parties willingly subject themselves to these conditions, a lot of confusion in this regard will go and the citizens will have the access to vital information regarding projects which affect their lives,” said Chief Information Commissioner Satyendra Mishra, in a letter to Ahluwalia.

The Hindustan Times explained that “the RTI Act provides that private parties, which are substantially financed by the government will have to appoint public authorities to provide information to citizens under the law.” The report continues:

However, the private parties have been reluctant claiming that they are not covered under the RTI law even through they have received land or funds from the government. The CIC to its astonishment has found that even the ministries have not been willing to provide information regarding the PPP projects claiming that the private bodies were outside the government control.

To end the confusion, the CIC has suggested that every PPP project including draft agreement should be published for inviting public comments and objections before finalizing them. The CIC had suggested two options to implement the RTI law for PPP projects.

The PPP agreement should include a necessary condition that the Special Purpose Vehicle or any other entity which comes into being as a result of the PPP would be a public authority within the meaning of section 2 (h) of the RTI Act.

Second, the Central Public Information Officer of the ministry or department undertaking a PPP project will be equally responsible for providing the information sought.

The move, the CIC believes, will improve the accountability of such entities to both the government and public at large.

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