India’s Central Information Commission has ruled that the Public Health Foundation of India (PHFI) had falls under the Right to Information Act, using the decision to underscore its position that other public-private partnerships are also covered, a contentious issue.
Commissioner Shailesh Ghandi, who wrote the opinion, directed the chairman of PHFI to appoint a Public Information Officer and a First Appellate Authority as mandated under the RTI Act before March 15 and also to ensure compliance with Section 4 of the RTI Act.” The decision notes that the PHFI, after a hearing Jan. 24, “has now agreed to submit itself to the jurisdiction of the RTI Act.”
The PHFI had argued that it is an autonomous body duly registered under the provisions of the Societies Registration Act of 1860. As a public-private partnership, it said, the PHFI is not a “public authority” as defined under the RTI Act. The foundation said it also provides a great deal of information to the public.
Looking at the standards for coverage contained in the law, the CIC said in its Feb. 14 ruling said that while it appears the PHFI is not “owned” by the government, it was “controlled” by the government because at least one-sixth of the members of the governing board of PHFI consist of senior public servants. The CIC rejected as “untenable” the Foundation’s argument that the members were acting in their private capacity. “This may not be complete control, but five top Public Servants would exercise some degree of control, which would be significant.”
The CIC also said that the foundation is “substantially financed” by the government and found that government funding in PHFI “is to the tune of 30%, which cannot be considered as insubstantial.”
The decision states that “not every financing of an entity in the form of a grant by the Government would qualify as ‘substantial’-but certainly a grant of over Rs. 1 crore would constitute ‘substantial financing’ rendering such entity a public authority under the RTI Act.”
The foundation’s claimed an exemption because it is a public-private partnership, but the CIC said that “PPPs envisage a partnership with public funds, – directly or indirectly,- and therefore citizens have a right to know about the same.”
The decision continues, “As a consequence of being a public-private partnership, PHFI has received a substantial grant of Rs. 65 crores from the Government initially. Further, as per the Complainant’s contention – PHFI has been receiving free land and handsome financial grants from state governments for setting up ‘Indian Institutes of Public Health’ (IIPHs) as part of the public-private partnership.”
Broader Issue Addressed
Looking at the broader context, the decision stated that “by their very nature, PPPs stipulate certain contributions from the Government, which may be monetary as well as non-monetary-to which values can be attributed. Moreover, PPPs envisage a certain degree of Government control in their functioning so that the decisions taken are in accordance with the objectives for which the partnership was set up.”
“Given the above, PPPs would come within the ambit of ‘public authorities’ as defined in the RTI Act thereby enabling citizens to know/obtain information about them. At present, most PPPs do not even accept the applicability of the RTI Act to them and wait for the issue to be adjudicated upon at the Commission’s level. For this some citizen has to pursue this matter. Such practices are required to be brought to a minimum and PPPs must comply with the provisions of the RTI Act.”
The Commission noted “with some dismay that the highest levels of Public Servants in India did not accept the Citizen’s enforceable Right to Information in PHFI, despite the Government substantially funding it and exercising some control.” It continued:
This strengthens the plea by the Commission that all Public-Private partnership agreements must have a clause that they are substantially funded by the appropriate Government and hence accept that they are Public authorities as defined in the RTI Act.
The Commission directed the PHFI to pay compensation of Rs.3000/- to the Complainant, Kishan Lal, “for the loss and detriment suffered by him in pursuing the Complaint.”
A high-level panel on public health has told the government that RTI should be made mandatory for all nongovernmental organizations and public-private partnerships in the social sector area, according to a report in the Hindustan Times.
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