PHFI is a Public Authority covered under the RTI Act

Background

The appellant sought information about legal status of Public Health Foundation of India (PHFI), its incorporation & registration documents along with the details of its promoters/settlers and seed capital provided by the promoters. The Director of PHFI stated that “The Public Health Foundation of India (PHFI) is an autonomous body duly registered under the provisions of the Societies Registration Act of 1860 and being a public-private partnership, PHFI is not a ‘public authority’ as defined under the Right to Information Act, 2005. PHFI is therefore not covered under the provisions of the said Act. However, the PHFI provided the current progress report of the company to the appellant.

View of the CIC

The Central Information Commission referred to the definition of the Public Authority under section 2(h)(i) of the RTI Act where it has been held that any body owned, controlled or substantially financed directly or indirectly by funds provided by the appropriate Government is a public authority.

The Commission noted that as per its website, the Public Health Foundation of India (PHFI) is a public private initiative that has collaboratively evolved through consultations with multiple constituencies including Indian and international academia, state and central governments, multi & bi-lateral agencies and civil society groups. PHFI is a response to redress the limited institutional capacity in India for strengthening training, research and policy development in the area of Public Health.

1. On perusal of the information about PHFI’s governing board, the Commission noted that amongst its 30 Board members, at least one-sixth of the members consist of senior Public Servants:

1. Dr. Montek Singh Ahluwalia, Deputy Chairman, Planning Commission; 2. Mr. P.K. Pradhan, Secretary, Ministry of Health and Family Welfare; 3. Mr. Vishwa Mohan Katoch, Secretary, Department of Health Research, Ministry of Health and Family Welfare and Director General, Indian Council of Medical Research; 4. Mr. TKA Nair, Principal Secretary to the Prime Minister of India; and 5. Dr. R.K. Srivastava, Director General Health Services, Ministry of Health and Family Welfare all from the Government of India.

The Commission did not agree with the claim of the respondent that most of the Government officials on the board of PHFI were occupying such positions in ‘private capacity’. It observed that senior Public Servants on the board of an organisation like PHFI which has numerous interactions with the Government, cannot act in private capacity as it would necessarily imply a conflict of interest and such Public Servants must necessarily be acting on behalf of the Government Therefore, the Commission inferred that the presence of senior Government Servants on the board ensures that decisions taken in PHFI are in consonance with the Government’s avowed objectives. Hence, it follows that PHFI is ‘controlled’ by the appropriate Government.

2. The Commission noted that the PHFI was set up in 2006 with an initial fund corpus of Rs. 200 crores (at present Rs. 219 crores), out of which Rs. 65 crores were provided as grant by Ministry of Health and Family Welfare. The Commission held that 30% Government funding in PHFI, or Rs. 65 Crores in absolute terms, cannot be considered as insubstantial. Therefore, PHFI is being ‘substantially financed’ by funds from the Government.

3. Furthermore, the Commission observed that public-private partnerships (PPPs) are in the nature of legally enforceable contractual agreements between public authorities and private organisations with clearly laid out terms and conditions, and rights and obligations. Contributions by the Government such as giving land at a concessional rate, grants, monopoly rights, etc. can be easily calculated and the same would tantamount to indirect financing by the Government. Instances of indirect financing were cited like the Andhra Pradesh Government provided PHFI with 43 acres of land in Rajendra Nagar area of Hyderabad free of cost and Rs. 30 crores in financial grant for setting up IIPH; the Gujarat Government provided 50 acres in Gandhinagar and Rs. 25 crores in grant; the Orissa Government provided 40 acres near Bhubaneswar and the Delhi Government spent Rs. 13.82 crore on acquiring 51.19 acres of Gram Sabha land in Kanjhawala village for PHFI to set up IIPH. Hence, the Commission ruled that there is substantial financing both directly and indirectly by the Government.

After the hearing held on 24/01/2012, in its written submissions dated 29/01/2012 the Respondent agreed to submit itself to the jurisdiction of the RTI Act and pleaded that it be granted a period of 60 days to comply with the provisions of the RTI Act. Noting the fact that the PHFI has already been in existence for six years, the Commission felt that PHFI should comply with the provisions of the RTI Act as expeditiously as possible and granted 30 days. The Commission expressed 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. The Commission further directed PHFI to pay compensation of Rs.3000/- to the Complainant for the loss and detriment suffered by him in pursuing the Complaint

Comments

In the recent years, there has been an emergence of a multitude of public-private partnerships (PPP) in different sectors. 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 or with the higher judiciary. The issue of their being under the purview of RTI Act has been hanging with the Courts. The sooner the matter attains finality, the better it would be for the nation. TheCentral Information Commission had earlier made a plea by the Commission that all Public-Private partnership agreements must have a specific clause that they are substantially funded by the appropriate Government and hence accept that they are Public authorities as defined in the RTI Act.

Citation: Mr. Kishan Lal v. Public Health Foundation of India in file no. CIC/SG/C/2011/001273