Balancing Trade Secrets and Right to Information in Tenders: A Judicial Study

Abstract

There has existed a long debate regarding the balance of right to information of every individual versus the commercial rights of businesses to protect their proprietary information. While proprietary information and trade secrets have been given protection under the RTI Act, 2005, there exists controversy regarding the protection of trade secrets due to its vague presence in the Indian legal system. Trade secrets does not have any statutory protection in India. The concept has evolvedthrough judicial precedents which has left a huge room for interpretation and confusion regarding the laws surrounding the concept. Trade secrets on the other hand have been recognised as an exception for not revealing information under Right to Information Act, 2005. This article focuses on the matter of tenders in light of right to information and trade secrets. It articulates the courts’ approach on how they view and balance adjudication of trade secret and RTI. The issue arises when in tenders, the information provided in the bids becomes public documents which if made available to competitors can cause irreparable damage to businesses. The article deals with three issues namely, what information has been considered as a trade secret while exempting revelation, how the courts have treated the two parts of a tender i.e. Technical Bid and the Financial Bid and, finally it highlights certain patterns and principles that the courts have uniformly followed while deciding how to consider and allow revelation of such confidential information namely, “Fiduciary Relationship, Public interest, Pre and Post Award of Contract and Vexatious Applications”.While discussing the above issues the courts have further set up some considerations to be taken care of while dealing with each issue which has been discussed at length in this article. Therefore the research questions which the paper addresses are as follows:i. How do courts deal with the issues related to trade secrets and confidential information while issuing information of tenders?ii. What patterns and principles have the courts uniformly followed while deciding how to consider and allow revelation of such confidential information?Finally, the author has given suggestions on how to fill the gaps and overcome practical inefficiencies.