Dear all,

Readers may recollect a few email alerts sent between July and September 2011 about the ongoing debate on transparency in Public Private Partnership (PPP) projects. The Central Information Commission (CIC) had written to the Planning Commission in January, 2011 with three recommendations for making PPPs transparent and compliant with the Right to Information Act, 2005 (RTI Act). In his reply to the CIC amongst other things, the Deputy Chairman of the Planning Commission stated as follows:

"The Planning Commission does not execute the concession agreements with PPPs but these are done by the concerned Ministries/Departments/Public Sector undertakings. The Planning Commission however has published several Model Concession Agreements (MCAs) for various types of PPPs. If these MCAs are followed by any PPP then any person can obtain certified copies of the concession agreements, maintenance manuals, maintenance programme and maintenance requirements in respect of each project directly from the concessionaire." (i.e. the entity actually implementing the PPP).

The previous email alert containing links to this correspondence and our comments on the subject are accessible at: here

Is it so easy to get access to Concession Agreements?

We decided to test the truth behind the Planning Commission's reply. We randomly chose Puducherry Port development project- one of more than 750 PPP projects all over India that are either operational or have reached construction stage as of July 2011. This project cost is estimated at a little less than Rs. 3,000 crores (USD 60 million where USD 1= INR 50). (The estimated cost of all 750 projects is Rs. 383,332 crores or USD 76 billion). In August 2011 we filed an information request under the RTI Act with the Department of Ports, Government of Puducherry which is the nodal agency for the implementation of this PPP requesting the following information:

"A clear photocopy of the Concession Agreement relating to the PPP project entitled "Puducherry Port" as mentioned on the website of the Department of Economic Affairs, Ministry of Finance, Government of India, named- the Public Private Partnerships India Database."

The Public Information Officer (PIO) of the Dept. of Ports did not bother to respond to the request. So in September 2011 (within the statutory limit of 30 days) we filed a first appeal with the Appellate Authority of the Dept. The First Appellate Authority (FAA) sent a reply on 01 November (after the completion of the 45 day deadline for disposing appeals) (copy attached). He claimed that his PIO never received our information request. But his response to my appeal was even more interesting:

"However, in respect of your appeal cited above which has been received, it is informed that a copy of the Concession Agreement as requested by you cannot be furnished at this point of time without the consent of the private developer of the Puducherry Port snice the concession agreement that had been entered between the Government of Puducherry and the private developer of Puducherry Port contains a "Confidentiality" clause. Hence a letter has been addressed to the private developer to convey their opinion on providing a copy of the Concession Agreement to you. After obtaining their views a suitable reply will be furnished."

According to the information about this PPP uploaded on the dedicated website of the Department of Economic Affairs the private developer is a private enterprise based in Delhi. Details about the project and the private developer are available at: here

The FAA's response made me take a second look at the reply of the Dy. Chairman of the Planning Commission to the CIC. The reply seems to be very cleverly crafted- certified copies of the concession agreements will be available if the model concession agreements ar followed. Does this imply that the agreements will not be available if they do not follow the model formats? The model concession agreement formats are available at: here

Nowhere in the model agreement is there a provision for a confidentiality clause. This seems to be an addition made by the Government of Puducherry and the private developer. If this kind of flexibility is allowed in the formulation of concession agreements, what remains of the RTI Act or how do we make PPPs more transparent? We await the decision of the FAA which is now long overdue.

The Dept. of Economic Affairs floated a Draft National Policy on PPPs earlier this year and invited comments from the public. It was rather weak on the transparency requirements except for bidders who participated in the tender processes. There was very little in the policy that aimed at creating a general atmosphere of transparency about the design, selection, implementation and monitoring of PPPs. There is no indication in the public domain as to how many people or organisations sent comments to the Dept. of Economic Affairs. CHRI's comments on the draft policy are accessible at: here

Readers may like to try this out with other PPPs to find out if they can get hold of copies of concession agreements. The database of PPPs is accessible at: http://pppindiadatabase.com Please share your experiences with us

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