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2. The Planning Commission has published 11 Model Concession Agreements in various sectors for adoption in PPP projects. These documents have been used for many PPP projects across different sectors. Specific provision is provided in all these documents relating to disclosure of specified documents which reads as under:-
'Disclosure of Specified Documents The Concessionaire shall make available for inspection by any person, copies of this Concession Agreement, the Maintenance Manual, the Maintenance Programme and the Maintenance Requirements (hereinafter collectively referred to as to the "Specified Documents"), free of charge, during normal business hours on all working days at the Site and Concessionaire's Registered Office. The Concessionaire shall make copies of the same available to any person upon payment of copying charges on a 'no profit no loss' basis.

14. During the hearing, the representatives of the Planning Commission and the C&AG informed Commission that it was their considered view that no PPP Agreements should be held confidential and should be made available in the public domain. They discounted any possibility of commercial information getting exposed due to this disclosure.

15. Commission noted that the respondents had repeatedly stressed the confidentiality provision in the Agreement to demand that any disclosure of the PPP Agreement would be a breach of trust, especially in respect of the private contracting party. Respondents were further asked to explain whether a mere arrangement between two contracting parties ⎯ one of which was the Government ⎯ to keep the document confidential was sufficient to decline its disclosure under the RTI Act. Respondents were also asked to clearly state as to how could a plea of exemption under Section 8(1)(d) be taken without apprising the Commission about the contents of the document about which the privilege of confidentiality was claimed. They made no response except to say that 'the highest authority' had decided that the entire document should be held confidential. Respondents' representatives were informed that Commission had given to the Department of Shipping and the Mumbai Port Trust full opportunity to clearly state FB-03092009-01.doc their position regarding what portions of the PPP Agreement could be held confidential and the reasons thereof, and it was they who chose not to make a response.

18. Planning Commission ⎯ which has a separate Department / Section dedicated to Public Private Partnerships and is known to have prepared the Model PPP Agreements for the Government ⎯ has categorically stated that any plea of confidentiality of those documents (PPP Agreements) was insubstantial and deserved to be rejected. Comptroller & Auditor General of India also advised the Commission that there was no room for confidentiality in matters such as PPP Agreements.

19. This advice of the Planning Commission and the C&AG to the Commission is contrary to the rather facile submission of the respondents that "furnishing such agreement will have implications for various PPP projects being encouraged as a matter of Government policy where the private parties need to be assured of confidentiality of their Business Plans, including Preliminary Design criteria, Financing Plan, operation and maintenance plan and several other details which form part of such Agreements."

20. The appellant has forcefully brought out that a PPP Agreement involving the nation's physical resources and its infrastructure, which had critical environmental, social and human aspects, apart from its technical and financial aspects, could not be a matter between the bureaucracy of the government and the private party alone. The people of the country are entitled to know the truth about the PPP Agreements, in general as well as in their specific details. The logic that the private party could not be forced to share with others the technical and financial details it handed over to the Government is not FB-03092009-01.doc a persuasive argument. Such private parties frequently win the right to participate in the PPP Agreement in open competition, or are selected for their exclusive and extra-ordinary competence in specified areas of activity. In either case, it is necessary that there is complete transparency about whether the selection of the Private Partner by the Government was made correctly and carefully and, that all aspects of the issue ⎯ environmental, social and human included ⎯ were seriously considered by the Government in making the choice. A matter of such critical importance to the country cannot be negotiated and settled behind the back of its people. The third-party cannot take recourse to the argument of its vital commercial and technical details being disclosed to its rivals for the simple reason that it is the consideration of these very details that won him the competitive bidding in the first place. It is important and crucial that the choice of the Private Partner by the Government is not cloaked in undue secrecy.