Exemption 8(1)(d)
RTI: Exemption 8(1)(d)
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
FOIA has very similar exemption under 5 U.S.C. §552(b)(4), it reads:
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
A trade secret is a commercially valuable plan, formula, process or device used in an industry that resulted from either innovation or substantial effort. Courts have determined that information qualifies as a trade secret if disclosure is likely to hurt the competitive position of the person or company who submitted it or if the disclosure would impair the government’s ability to get such information at a future date. US courts have decided that the benefit to public, from disclosure, is immaterial. However the language of the RTI makes it clear that public interest should be taken into account. (Did the Indian Parliament looked at the US laws carefully and decided on that language? I do not know. Does anyone know? In US, the records of the Congress will show the discussion on a subject like this. The discussion would show the intent of the Congress. Such records are routinely admitted into evidence in court cases. It will be very helpful if someone can look into records of Indian Parliament and answer this question. If the answer is yes, then one can argue that the Parliament meant US court’s interpretations to be followed unless the language of RTI is substantially different from FOIA.)
In one case Madras High Court ruled that government contracts, given out to a private party, were not exempt from disclosure under 8(1)(d).
For US court’s opinion see:
Public Citizen v. F.D.A. 185 F3. 898 (D.C. Cir. 1999)
Niagara Mohawk Power v US Dept. of Energy 169 F.3d (D.C. Cir. 1999)