Explain rationale behind seeking exemption from RTI Act, Madras High Court directs Tasmac

Madras HC directs Tasmac MD to explain why it seeks exemption from RTI Act. AAG claims info on liquor procurement from private breweries/distilleries is 'commercial confidence'. HC questions how pricing/quantum can be kept secret, AAG says no tenders called for. AAG seeks two weeks to place judgements aiding Tasmac. Single judge had held no 'commercial confidence' & info must be disclosed for transparency.

The Madras High Court on Wednesday, July 19, 2023 directed the Managing Director of the Tamil Nadu State Marketing Corporation (Tasmac) to explain how it could seek an exemption from disclosing information, under the Right to Information (RTI) Act of 2005, with respect to the quantum of liquor procured by it from various private breweries and distilleries, and the prices at which these spirits were being supplied to the corporation.

The First Division Bench of Chief Justice S.V. Gangapurwala and Justice P.D. Audikesavalu wanted Additional Advocate General J. Ravindran to place before the court, any judgement that could be relied upon by Tasmac to seek the benefit of Section 8(1)(d) of the RTI Act. Since Mr. Ravindran sought some time for this, the judges adjourned, by two weeks, a writ appeal preferred by the Tasmac MD against a single judge’s order in March, to disclose the information.

During the hearing, the AAG told the court that Section 8(1)(d) states that there shall be no obligation to give to a citizen any information related to commercial confidence, trade secrets or intellectual property if the disclosure of this information could harm the competitive position of a third party, unless the competent authority was satisfied that a larger public interest would warrant the disclosure of such information.

The AAG claimed that the prices at which Tasmac procures liquor from various private breweries and distilleries and the quantum of such procurement was a matter related to ‘commercial confidence’ and that disclosure of such information to an RTI applicant would affect the trade dealings between the corporation and the private entities. He contended that the single judge had erred in passing an order in favour of the RTI applicant, M. Loganathan, of Coimbatore.

However, when the judges of the Division Bench wondered how the price and quantum of liquor procured by Tasmac could be kept a secret, especially in the light of the Tamil Nadu Transparency in Tenders Act of 1998, the AAG said, the corporation does not call for tenders for procurement of liquor and that the spirits are purchased directly from the private breweries and distilleries.

At this point of time, Justice Audikesavalu wanted to know the provision of the 1998 Act which exempts Tasmac from not following the law. The Chief Justice wondered how pricing and quantum of liquor could fall under the umbrella of ‘commercial confidence’ when Tasmac was the sole wholesale as well as retail seller of liquor in the State with there being absolutely no competition at all from others.

To this, the AAG said, Tasmac was obligated to state to private breweries and distilleries that it would not disclose the prices at which the spirits were being purchased from them. Therefore, the corporation could not be forced to disclose such information, he said and sought a fortnight’s time to place before the court, some of the judgements that would come to the aid of the corporation.