Trade secrecy vs public right

Nearly two decades after the Right to Information Act came into force, it remains one of India’s most consequential democratic reforms. The law was designed to reverse the traditional presumption of secrecy that characterised the state, placing the burden on public authorities to justify why information should not be disclosed. While the statutory framework of the RTI Act remains intact, its day-to-day application increasingly reflects a more restrictive approach. One of the most visible indicators of this shift is the expanding use of Section 8(1)(d), which allows authorities to deny information on the grounds of commercial confidence, trade secrets, or intellectual property.

The existence of this exemption is not itself problematic. Governments routinely deal with proprietary technologies, confidential business data, and sensitive pricing information. The RTI Act recognises this reality and provides protection where disclosure would genuinely harm competitive interests. Crucially, however, Section 8(1)(d) is a qualified exemption. It explicitly requires authorities to demonstrate that disclosure would cause such harm and allows information to be disclosed if larger public interest warrants it. What recent Central Information Commission decisions suggest is that this balancing exercise is increasingly being applied in a limited or cursory manner.

A survey of CIC orders over the past several years shows a growing tendency among public authorities to invoke commercial confidence as a default defence against disclosure. In many cases, the exemption is asserted in broad terms, with little explanation of the nature of the competitive harm or why public interest considerations do not override it. This pattern does not necessarily indicate bad faith. Rather, it points to an interpretive drift in which secrecy is becoming administratively convenient, even where the information sought relates closely to public expenditure, public contracts, or monopoly services.

Public sector financial institutions offer some of the clearest examples of this trend. RTI applicants have repeatedly sought information relating to loan restructuring, mortgage assignment deeds, and investment related decisions taken by banks and insurance companies. These requests have often been denied on the ground that such information constitutes commercial confidence and that disclosure could affect competitive positioning. In several cases involving the Life Insurance Corporation of India, the CIC has upheld refusals of information relating to financial or tender related data under Section 8(1)(d). While LIC does operate in competitive markets, it also manages vast public savings under a sovereign guarantee. The public interest in understanding how such funds are deployed is substantial, yet orders frequently provide limited insight into how that interest has been weighed against confidentiality claims.

Procurement processes across public sector undertakings reveal a similar pattern. RTI requests seeking tender documents, comparative bid statements, and eligibility evaluations are often denied even after contracts have been finalised. Information commissions have on occasion observed that while confidentiality may be justified during the bidding stage, transparency after the award of contracts is essential to prevent arbitrariness and ensure fair competition. Despite this principle being recognised in multiple decisions, refusals continue to be defended under Section 8(1)(d), suggesting that the norm of post-award disclosure has not been consistently internalised across authorities.

Infrastructure projects present another area where commercial confidence arguments are routinely deployed. Information relating to toll collection figures, concession agreements, and revenue sharing arrangements has been denied on the ground that concessionaires operate in competitive environments and that disclosure could affect their business interests. In at least one case involving toll road concessions, the CIC accepted the argument that such operational data constituted commercial confidence. This reasoning, while legally permissible, raises broader governance questions. Toll roads are monopoly assets created through public concessions. Charges are approved by public authorities and imposed on citizens who often have limited alternatives. Access to basic operational data is central to assessing whether contractual terms are being enforced and whether public interest safeguards are effective.

The use of trade secret exemptions is not confined to central bodies. State governments and their agencies have also increasingly relied on Section 8(1)(d) to refuse disclosure. A recent example reported in the media involved a state investment promotion agency declining to provide details of proposed investments, including sectoral and location information, citing commercial confidence and fiduciary exemptions. This occurred even as the same government publicly highlighted those investments as evidence of economic performance. When information is selectively disclosed for promotional purposes but withheld from scrutiny, it raises legitimate questions about the coherence and consistency of confidentiality claims.

What unites these diverse examples is the limited application of a structured harm assessment. Section 8(1)(d) does not permit blanket exemptions. Authorities are required to demonstrate how disclosure would harm competitive interests and why such harm outweighs the public interest in transparency. In practice, many CIC orders rely on general assertions that information is commercially sensitive, without detailing the nature, likelihood, or magnitude of the alleged harm. Nor is it always evident whether alternatives such as partial disclosure, anonymisation, or redaction were considered.

Judicial interpretation of the RTI Act has consistently emphasised that exemptions must be narrowly construed. Courts have held that once public money is spent, public contracts are executed, or public services are priced, a significant portion of related information acquires a public character. These principles are well established in jurisprudence and frequently cited in legal commentary. Yet translating them into routine administrative practice remains uneven. 

The cumulative effect of this approach is a gradual narrowing of the RTI regime’s practical reach. While the Act continues to enable access to certain categories of information, its ability to illuminate how public resources are priced, allocated, and managed is weakened when commercial confidence becomes a default shield. Over time, transparency risks being reduced to procedural compliance rather than substantive accountability.

This narrowing has broader implications for governance. When citizens are unable to access information about contracts, pricing mechanisms, or the performance of concessionaires, the space for informed public debate shrinks. Accountability mechanisms that depend on transparency, including legislative oversight and audit processes, are indirectly weakened. 

Addressing this issue does not require legislative amendment. The text of Section 8(1)(d) already contains the tools necessary for balanced decision making. What is required is clearer and more consistent application. Information commissions could insist on explicit harm assessments when the exemption is invoked, require authorities to demonstrate why partial disclosure is not feasible, and articulate more clearly how public interest considerations have been weighed.

The author is a political scientist whose work examines democratic institutions, legislative behaviour and the ways in which information systems shape public reasoning. He writes on governance, civic participation and institutional reform