Out of shadow, PPPs at last come under RTI ambit

DoPT issues guidelines providing for suo motu disclosure of all information relating to PPPs under RTI Act

prasanna

Prasanna Mohanty | April 17, 2013



In a dramatic turnaround, the union government has now opened up public-private partnership (PPP) projects to public scrutiny.

The move comes in the way of a fresh set of guidelines issued by the department of personnel and training (DoPT) on April 15. Till now any information sought through the RTI Act was stonewalled not only by the union government but also the state governments.

DoPT guidelines make it clear that “all information relating to PPPs must be disclosed in the public domain” henceforth suo motu, as per provisions of section 4 of the RTI Act.

This will gladden the hearts of all those fighting for accountability and transparency in the way PPP projects are being implemented in the country. Most big-ticket projects in the infrastructure sector, like roads, ports, airports, power, water supply, irrigation and telecommunication are being carried out under the PPP model. And for a while PPP projects are being seen as “public money for private profit”.

Social activists have been fighting for years to get information about PPP projects in vain. The fight that started in January 2011, with RTI activist Venkatesh Nayak approaching the CIC to get information about PPP projects, has succeeded in breaking down the wall.

DoPT’s guideline of April 15 says: “If public services are proposed to be provided through a public private partnership (PPP), all information relating to the PPPs must be disclosed in the public domain by the public authority entering into the PPP contract/concession agreement. This may include details of the special purpose vehicle (SPV), if any set up, detailed project reports, concession agreements, operation and maintenance manuals and other documents generated as part of the implementation of the PPP project.”

It adds: “Further, information about fees, tolls, or other kinds of revenue that may be collected under authorization from the government, information in respect of outputs and outcomes, process of selection of the private sector party may also be proactively disclosed. All payments made under the PPP project may also be disclosed in a periodic manner along with the purpose of making such payments”.

The stumbling block

In issuing guidelines for suo motu disclosures, the guideline admits that “the quality and quantity of proactive disclosure is not up to the desired level” and a part of the problem is that certain provisions of the RTI Act “have not been fully detailed”, and that in case of some “there is need for laying down detailed guidelines”.

Seen as the biggest stumbling block, Montek Singh Ahluwalia, deputy chairman of the planning commission, has publicly opposed every attempt to throw PPPs open to RTI by stating that it would inhibit private investment. He also contended that since PPPs are contracts with private entities they don’t come under the purview of the RTI Act.

The planning commission is the nodal body for PPPs.

Things took a turn for better when CIC wrote to the planning commission in January 2011 and sought modifications within PPP agreements to ensure public disclosure of details related to infrastructure projects being funded by the public exchequer. The DoPT supported CIC, but instead of legal changes suggested that the planning commission should draft the PPP agreement in a way that allows the government agency to disclose information on behalf of the private entity.

The planning commission opposed this and referred the matter to the law ministry.

In March 2011, Ahluwalia issued a statement clarifying his position. The statement said: “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 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.” (emphasis added)

But even after this statement, Ahluwalia publicly opposed throwing open PPPs to provisions of the RTI Act.

But DoPT set up a task force to look into the issue. In August 2011, the task force, which included civil society activities, favoured suo motu disclosure. The report was then referred to the PMO.

Apparently, after the PMO’s clearance, DoPT issued the guidelines on April 15.

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