PHFI despite being a public-private partnership-PPP is controlled and substantially financed by the government and thus is a public authority under the RTI Act, ruled the CIC. This is the 178th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), while allowing a complaint, ruled that Public Health Foundation of India (PHFI) is a public authority under the Right to Information (RTI) Act and directed the chairman of PHFI to appoint a Public Information Officer (PIO) and a First Appellate Authority (FAA) as mandated under the RTI Act. The director of PHFI had claimed that the Foundation was an autonomous body and a public-private partnership (PPP) between the government and other institutions.

While giving the judgement on 14 February 2012, Shailesh Gandhi, the then Central Information Commissioner said, "By their very nature, public-private partnerships (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 or obtain information about them."

Mumbai resident Kishan Lal, on 6 September 2011, sought from the Public Information Officer (PIO) information regarding whether PHFI is a public authority under the RTI Act. Here is the information he sought under the RTI Act...

(a) Kindly provide details of legal status of PHFI, its incorporation & registration documents. Kindly provide the details of its promoters/settlers and seed capital provided by the promoters.

(b) Kindly provide the details of funding received from Government of India for its various projects.

(c) Kindly provide details of institutions runs by PHFI. Kindly provide details of the capital expenses on setting these institutions and the funding pattern of meeting the capital expenses. Kindly also provide the details cost of purchase of land for each of these institutions and copy of registration certification of land.

(d) Kindly provide details of consultancy assignments for various state governments and/or their agencies, Govt. of India and or its agencies.

(e) Kindly provide copies of statement of audited accounts of PHFI for last 5 years.

(f) Kindly provide details of accredited courses run by PHFI institutions. Kindly provide their curriculum.

(g) Kindly provide details of students sponsored by Govt of India/state governments. Kindly provide details of documents provided by PHFI to Govt. of India/state governments for approval of its courses.

(h) Does PHFI conduct any merit-based tests for the admission of students to its courses? If not, then how does PHFI admits students for its courses?

(i) Kindly provide details of appointments of PHFI board of governors with file noting.

In his reply, Rohit Prasad, director for development & strategy at PHFI, stated, "The Public Health Foundation of India (PHFI) is an autonomous body duly registered under the provisions of the Societies Registration Act of 1860. Please note that as a public-private partnership, PHFI is not a 'public authority' as defined under the Right to Information Act, 2005 and is a completely autonomous institution. PHFI is therefore not covered under the provisions of the said Act.

However, in the interest of transparency, PHFI is desirous of sharing information and we are hereby attaching the response to your questions. The most recent Progress Report of PHFI is being attached for your reference. Details 01: PHFI's inception; along with progress details are also placed on the website (http://www.Phfi.org/.)"

Citing non-receipt of information from the PHFI Board, the appellant filed a complaint before the CIC.

In his submission before the CIC, the senior administrator of PHFI said, "At the outset, we would like to mention that Pubic Health Foundation of India (PHFI) is an independent institution duly registered under the provisions of Societies Registration Act of 1860 and is not a 'public authority' as defined under the Right to information Act, 2005. As such, PHFI is not covered under the provisions of the RTI Act.

However in the interest of transparency, PHFI has been consistently sharing information with public whenever sought keeping in line with this philosophy, we had responded to the communication dated 6 September 2011 received from Kishan Lal sent though speed post on 8 September 2011. The response was sent vide our letter dated 3 October 2011 with a copy to the CIC through courier as well as Speed Post. A copy of our response dated 3 October 2011 together with PoDs of courier. Speed Post receipts and track result indicating delivery of our letter dated 31 October 2011 on 7 October 2011 to  Kishan Lal and on 8 October 2011 to CIC at JNU are attached for your information and ready reference. We would like to bring to your notice that all the responses were provided and delivered within 30 days of its receipt.

Further, as desired by you in the above referred letter, response to Kishan Lal letter dated 6 September 2011 has been resent to him on his email ID.

We would also like to bring it to your notice that your above referred letter is addressed to Public Information Officer-PIO of Ministry of Health and Family Welfare whose office is located at Nirman Bhavan. As mentioned above, PHFI is an independent institution not covered under the RTI Act and as such it does have a designated Public Information Officer. Moreover most of our information is in public domain on our website www.phfi.org and any additional information can be sought through our contact mail [email protected] mentioned on our website."

During the hearing on 24 January 2012, Mr Gandhi, the then CIC, told both the parties to sent their written submission in support of their arguments (before the Bench) to the Commission and other party before 30 January 2012. The Bench then reserved its decision.

During the hearing on 14 February, the Bench noted that the main complaint was that PHFI being a public authority had refused to accept his enforceable right to information under the RTI Act. Mr Gandhi said, "The Supreme Court of India has recognised that the right to information is a fundamental right of the citizens of India under Article 19(1) of the Constitution of India. The RTI Act has codified this fundamental right mandating that every citizen shall have the right to information, subject only to the provisions of the RTI Act."

"Therefore, he said, "the question which arises for determination in the present case is whether PHFI is a 'public authority' under the RTI Act. It is relevant to mention that PHFI had initially claimed that it was not covered under the provisions of the RTI Act. Hence, there was no scope for the complainant to use the appeal procedure mentioned in the RTI Act and the Bench treated the matter as a complaint under Section 18 of the RTI Act."          

Section 2(h) of the RTI Act, which defines a 'public authority' stipulates as follows:

"public authority" means any authority or body or institution of self-government established or constituted,-

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any-

(i) body owned, controlled or substantially financed;
(ii) non-government organisation substantially financed, directly or indirectly by funds provided by the appropriate government;" (emphasis added)
 

Mr Gandhi said, "From a plain reading of the above, it appears that PHFI is not covered under clauses (a), (b), (c), (d) and (ii) of Section 2(h) of the RTI Act. Therefore, the issue which is to be determined is whether PHFI is a body owned, controlled or substantially financed directly or indirectly by funds provided by the appropriate government."

On its website, PHFI had mentioned that it is an autonomously governed public private initiative managed by a fully empowered, independent, governing board that has representatives from multiple constituencies, which includes senior government officials, eminent Indian and international academic and scientific leaders, civil society representatives and corporate leaders.

The Bench noted that it appeared that PHFI was not 'owned' by the appropriate government. There are various forms in which the government exercises control over an entity, which is relevant in determining whether the latter is a public authority. On perusal of the information about PHFI's governing board, the Bench noted that amongst its 30 Board members are:

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

Thus, Mr Gandhi noted at least one-sixth of the members of the governing Board of PHFI consist of senior public servants. However, during the hearing on 24 January 2012, the PHFI officials claimed that most of the government officials on the Board were occupying such positions in 'private capacity'.

This Bench said that it was of the view that such a claim was untenable. "It is difficult to assume that senior Public Servants can be on the board of an organisation like PHFI, which has numerous interactions with the government, in private capacity. In fact, this would necessarily imply a conflict of interest. The Bench can only assume that such public servants must necessarily be acting on behalf of the government, when they are required to take executive decisions as members of the board, in a public-private partnership (PPP) such as PHFI. Any other conclusion would be an improper slur on their integrity. It is not possible that India's leading public servants could be acting in any manner, but as representatives of the government when they are on the board of PHFI. It is also true that significant funding is provided by the government to PHFI. Hence, it is presumed that the five officials on the board of PHFI are discharging their duties as public servants," Mr Gandhi said.

He said, "It appears that the presence of senior government servants on the board may check or ensure that decisions taken in PHFI are in consonance with the government's avowed objectives. Therefore, the presence of a fair degree of government control on the decisions of PHFI cannot be ruled out. It follows that PHFI is 'controlled' by the appropriate government. This may not be complete control, but five top public servants would exercise some degree of control, which would be significant."

PHFI also admitted receiving Rs65 crore from the government during the hearing. Lal, in his contention also referred to the 20th report of the Department-Related Parliamentary Standing Committee on Health and Family Welfare submitted to the Rajya Sabha (2007).

The report noted, "The Government of India is contributing Rs65 crore approximately one-third of the initial seed capital required for kick-starting the PHFI and for establishment of two Schools of Public Health. The remaining amount (about Rs135 crore) is being raised from outside the Government, namely, Melinda & Bill Gates Foundation (Rs65 crore) and from high net-worth individuals. PHFI is managed by an independent Governing Board that includes three members from the Ministry of Health and Family Welfares (MH&FW) viz. Secretary (H&FW); DG ICMR and DGHS, TKA Nair. Principal Secretary to Prime Minister, Dr MS Ahluwalia, vice chairman, Planning Commission; Sujata Rao, AS&PD, NACO, Ministry of Health; Dr Mashelkar, DG CSIR are also members of the Governing Board. The presence of the officials from government would ensure that the decisions taken in PHFI are in consonance with the objectives for which PHFI has been supported by Government of India. It is expected that all members of the Governing Board would ensure the functioning of the Foundation as a professional organization and with complete transparency." (emphasis added)

Mr Gandhi said, the Parliamentary Standing Committee also assumed that the vice chairman of the Planning Commission, principal secretary to the Prime Minister and other public servants were ensuring that decisions of PHFI were in consonance with the government's objectives and complete transparency. PHFI's refusal to accept its coverage by the RTI Act seems at variance with this.

In addition, though the term 'financed' is qualified by 'substantial', Section 2(h) of the RTI Act does not lay down what actually constitutes 'substantial financing'. It is akin to "material" or "important" or "of considerable value" and would depend on the facts and circumstances of the case.

The funding sources of PHFI were foundations, private donors and the MH&FW. During the hearing on 24 January 2012, the officials stated that PHFI was set up in 2006 with an initial fund corpus of Rs200 crore (at present Rs219 crore), out of which Rs65 crore were provided as grant by MH&FW.

Mr Gandhi noted that this follows that government funding in PHFI is to the tune of 30%, which cannot be considered as insubstantial. "Moreover, even if taken on absolute terms, a grant of Rs65 crore given by the government from its corpus of public funds cannot be considered as insignificant and would render PHFI as being 'substantially financed' by funds from the government," he said.

"Citizens have a right to know about the manner, extent and purpose for which public funds are being deployed by the government. Having said so, 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 Rs1 crore would constitute 'substantial financing' rendering such entity a public authority under the RTI Act," the Bench noted.

The officials also stated that PHFI is a public-private partnership (PPP). Mr Gandhi said, "It is relevant to mention that 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. PPPs, by their very nature, stipulate certain contributions by the government such as giving land at a concessional rate, grants, monopoly rights, etc. In cases such as grants, direct funding by the government can be easily calculated. In cases such as giving monopoly rights or land at a concessional rate, etc, value(s) must be attached and the same would tantamount to indirect financing by the government. In other words, PPPs envisage a partnership with public funds, directly or indirectly, and therefore citizens have a right to know about the same."

As a consequence of being a public-private partnership, PHFI received a substantial grant of Rs65 crore from the government initially. Further, as per Lal'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. For instance, the Andhra Pradesh Government provided PHFI with 43 acres of land in Rajendra Nagar area of Hyderabad free of cost and Rs30 crore in financial grant for setting up IIPH. The Gujarat Government provided 50 acres in Gandhinagar and Rs25 crore in grant. The Orissa Government provided 40 acres near Bhubaneswar and the Delhi Government spent Rs13.82 crore on acquiring 51.19 acres of Gram Sabha land in Kanjhawala village for PHFI to set up IIPH. Hence, there appears to be substantial financing both directly and indirectly by the government.

Mr Gandhi said, "It follows from the above that PHFI is controlled and substantially financed by the government. Therefore, this Bench rules that PHFI is a public authority under Section 2(h) of the RTI Act."

"It is relevant to mention that the Respondent in its written submissions dated 29 January 2012 (i.e. after the hearing held on 24 January 2012) has now agreed to submit itself to the jurisdiction of the RTI Act. The Respondent has pleaded that it be granted a period of 60 days to comply with the provisions of the RTI Act. The Respondent-public authority has submitted that it believes in transparency and accountability, and has at all times complied with the substance of the RTI Act by responding in a proper and timely manner to all queries put to it under the RTI Act. Further, PHFI has also put up all relevant material and details pertaining to its functioning, activities, funding and finances (including extent of government funding) and details of members on its website. Given the above coupled with the fact that PHFI has already been in existence for six years, the Commission feels that PHFI should comply with the provisions of the RTI Act as expeditiously as possible. Therefore, the Commission is granting PHFI a period of 30 days to comply with the provisions of the RTI Act," the Bench said.

Mr Gandhi said, "...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. Without this, even an institution like PHFI, which has a distinguished Board, tries to refuse the Indian citizen his enforceable fundamental right."

Lal, the complainant, also demanded a compensation for the trouble of pursuing his complaint. "If an entity is required to pay income tax, it cannot claim that this must first be established by a citizen before the income tax department. It is not the responsibility of individual citizens to ensure statutory compliance; the government, its instrumentalities and public servants should be performing this task. The Bench appreciates the initiative taken by the citizen in this matter and feels that he has been put to unnecessary harassment in filing a complaint with the CIC to ensure that PHFI complies with the law," Mr Gandhi noted.

While allowing the complaint, the Bench then directed the chairman of PHFI to appoint a Public Information Officer and a First Appellate Authority-as mandated under the RTI Act before 15 March 2012 and also ensure compliance with Section 4 of the RTI Act. The Bench also directed PHFI to pay a compensation of Rs3,000 to Lal for the loss and detriment suffered by him in pursuing the complaint before 15 April 2012.

CENTRAL INFORMATION COMMISSION

Decision No. CIC/SG/C/2011/001273/17356

http://ciconline.nic.in/cic_decisions/CIC_SG_C_2011_001273_17356_M_76524.pdf

Complaint No. CIC/SG/C/2011/001273

Complainant                                       : Kishan Lal,

                                                            Mumbai-400066

Respondent                                          : Rohit Prasad,

                                                           Director (Development & Strategy)

                                                            Public Health Foundation of India

                                                            ISID Campus, 4 Institutional Area,

                                                            Vasant Kunj, New Delhi-110070