Dear all,

Last month I had circulated an email alert relating to our efforts of testing the claim of the Deputy Chairperson of the Planning Commission of India that any person can get a certified copy of the consession agreement relating to a public private partnership (PPP) project if the model concession agreement is followed. We had filed a test information request under the Right to Information Act, 2005 (RTI Act) with the Department of Ports, Government of Puducherry for the Puducherry Port PPP project. As no response was received for 30 days we filed a first appeal with the Department. The Department responded stating that a 'confidentiality agreement' in the concession agreement required them to consult with the third party, a private company based in Delhi. We now have a final decision in this matter.

The First Appellate Authority has rejected our appeal stating as follows:

"With reference to your appeal under Right to Information Act 2005 cited second above, I am to inform you that your request is not acceded as per Section 8(1)(d) of the RTI Act 2005" (scanned copy of the rejection order is attached).

The Planning Commission's bluff stands exposed. Despite the claim made by their Deputy Chairperson in his reply to the Chief Information Commissioner, Central Information Commission. that any person can get a certified copy of the concession agreement from the department responsible for the PPP, this does not seem to be true in actual practice.

What is wrong with the first appellate authority's order?
The first appellate authority has mechanically rejected the appeal without giving any detailed reasons. He has not given a speaking order as is the requirement under the RTI Act. A speaking order contains detailed reasons for the final decision made along with a weighing of the pros and cons in favour of and against disclosure. The first appellate authority has failed to mention any specific objections raised by the third party despite that procedure having been initiated. Even stranger is the absence of any date on the order of the appellate authority. Only the envelope containing the order sent to me mentions the date as 16/11/2011 along with the number of the letter. So the order is also invalid as it was issued 60 days after the submission of the appeal. Under Section 19(6) of the RTI Act the first appellate authority is obligated to give a decision on a first appeal within 30 days. However the appellate authority may taken 15 more days but resons have to be recorded in the decision explaining the cause of delay. Even this requirement has not been complied with.

So the Department of Ports, Puducherry has delivered a double whammy. It has not only falsified the claim of the Planning Commission's Deputy Chairperson, it has also flouted the provisions of the RTI Act without any compunction.

We will file a second appeal with the Central Information Commission soon.

I request all readers to similarly test transparency in PPPs in their own States.

Further readings:

Our comments on the Draft National Policy on PPPs are accessible at here.

Our research findings on the status of PPPs vis-a-vis RTI Act circulated earlier this year are accessible at the following links:

1) Email alert from July 2011:

2) Email alert from August 2011:

3) Email alert from November 2011.

In order to access our previous email alerts on RTI and related issues please click on: here

You will find the links at the top of this web page. If you do not wish to receive these email alerts please send an email to this address indicating your refusal.

Thanks

Venkatesh Nayak

Programme Coordinator

Access to Information Programme

Commonwealth Human Rights Initiative

B-117, 1st Floor, Sarvodaya Enclave New Delhi- 110 017

Tel: +91-11-43180215/ 43180200 Fax: +91-11-26864688

Website: www.humanrightsinitiative.org

Skype: venkatesh.nayak

Alternate Email ID: nayak.venkatesh@gmail.com