Puducherry Ports Department sits tight on CIC’s order to disclose PPP-related information under RTI

cicBy Venkatesh Nayak*

Readers may remember the major controversy over the coverage of Public Private Partnerships (PPP) under The Right to Information Act, 2005 (RTI Act) during the tenure of the United Progressive Alliance Government. While the Central Information Commission (CIC) wanted them to be covered by the RTI Act, the now defunct Planning Commission was hesitant to act immediately. Pursuant to this controversy, in August 2011, I had filed an RTI application with the Department of Ports, Puducherry asking for the Concession Agreement relating to the PPP project. After four years, the CIC has ordered that the Concession Agreement be disclosed after severing those portions relating to commercial confidentiality. Despite the order being passed in June 2015, the Department of Ports, Puducherry has neither sent me the information nor issued notice challenging the CIC’s decision in the High Court.

Thanks to the very vocal demand made by the RTI fraternity in India and the numerous cases piling up before the CIC demanding access to information about PPPs in January 2011, the then Chief Information Commissioner sent a letter to the now defunct Planning Commission with the following recommendations:

(1) that every PPP proposal including the draft agreement be made public inviting people’s comments on it;

(2) the PPP agreement include a clause requiring that the Special Purpose Vehicle (SPV) created for the purpose of implementing the PPP project become a public authority under the RTI Act; and

(3) that the Ministry/public authority responsible for the PPP project also become directly responsible for making all permissible information transparent under the RTI Act.

The then deputy chairman of the Planning Commission (PC) replied quickly to the CIC stating that it would not be proper for the Planning Commission to expand the jurisdiction of the CIC through PPP agreements. So the PC would seek legal opinion from the Department of Legal Affairs. Meanwhile, he pointed out that Concession Agreements, Maintenance Manuals, Maintenance Programmes and Maintenance Requirements can be obtained by any person from the concessionaire.

Having accessed this correspondence from the CIC website I decided to test the truth of the PC’s claim that any person could obtain the concession Agreement even outside the RTI Act. I randomly chose the Puducherry PPP project as it would fall under the Government of India and therefore would be subject to the jurisdiction of the CIC which I could access easily being based in Delhi. Given the confidence of the PC in the willingness of the concessionaire to part with copies of the concession agreements, I decided to check whether a similar commitment to transparency exists within the Department of Ports, Puducherry.

I filed an RTI application seeking a copy of the concession agreement. The public information officer (PIO) of the Department of Ports did not even bother to send a reply to my RTI application. The matter finally escalated to the CIC in second appeal as the first appellate authority rejected my request on the ground that the concession agreement contained a confidentiality clause.

The CIC heard my second appeal in May 2014 – more than 2 years later – and asked the Department of Ports to file a status report on the PPP project. During the hearing it transpired that the PPP had been shelved after prolonged litigation before courts. Nevertheless the Department of Ports pleaded commercial confidentiality against disclosure.

I submitted a rejoinder at the hearing arguing why it is in the public interest that such information should be disclosed. The CIC passed an interim order directing the Department of Ports to give further details of the court cases and reserved its final order.

CIC Orders disclosure of the PPP Concession Agreement sans matters of commercial confidence

Finally, after more than a year of reserving its order, in June 2015 the CIC has issued a final order directing the Department of Ports to disclose the Concession Agreement after severing the information related to commercial confidence. I have not yet received a hard copy of the CIC’s order. I found it on the website. Strangely, the Department of Ports has also not responded to me either with the information required to be disclosed or its intention to challenge the CIC’s order before the Courts. More than two months have passed since the CIC’s order.

Meanwhile, the NITI Ayog has replaced the Planning Commission. The Central Government has constituted a committee in May 2015 to review the PPP mode of infrastructure development. During the UPA regime a database for all PPPs projects had been established (http://www.pppindiadatabase.com/). While this website has become defunct, the NDA Government has created a new website for infrastructure-related PPP projects (https://infrastructureindia.gov.in/).

The new website is similar to the old one in many ways. It is not clear why the earlier website could not have been used. RTI users as activists might like to file requests asking for the reasons why the old website was junked and the new one created and how much it actually costs the Government to manage the new website.

In 2013 the Department of Personnel and Training issued guidelines for improved proactive disclosure of information under Section 4 of the RTI Act. a wealth of information relating to PPPs is now required to be disclosed by the ministries/departments/public authorities responsible for the PPPs. National Highways Authority of India is one of the public authorities that is displaying PPP agreements and other related information.

Meanwhile, I wait for the PPP agreement to reach me from across the Vindhyas. Will the Central Government’s review committee recommend greater transparency in all PPP projects? That remains to be seen.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

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