Request for ingredients of Foray 48B
Releasing ingredients of pesticide used in aerial spraying operation would disclose a trade secret—public interest in disclosure finely balanced—s 9(2)(b)(i) provided good reason to withhold
A requester sought the ingredients in Foray 48B, a pesticide used in controversial aerial spraying operations to eradicate the Painted Apple Moth in Auckland and the Asian Gypsy Moth in Hamilton. While the active ingredient of that spray was known (Btk), the inert ingredients were withheld by the Minister for Biosecurity under section 9(2)(b)(i) of the OIA (trade secrets).
The Minister noted that the full list of ingredients had been disclosed to officials at the Ministry of Agriculture and Forestry and the Ministry of Health, and doctors from the Auckland District Health Board (ADHB) who were involved in preparing a health risk assessment for the painted apple moth programme. The requester complained to the Ombudsman.
The Chief Ombudsman considered there to be no doubt that the information constituted a trade secret:
A formulation has a major effect on a product’s toxicity, residue behaviour and efficacy and is the thing that determines whether or not it will sell. Manufacturers invest substantial money in the development of formulations and the data packages that support their approval and desire to protect their investment and not to let the formulations fall into the hands of their competitors. The manufacturer of [this pesticide] made its formulation available to the New Zealand Government only in the strictest confidence. It asserts that the formulation is fundamental to the global success of the product. Its major market is in northern hemisphere countries where sales are large and small changes in market share can have a major impact on the company’s income.
The Chief Ombudsman noted that once the formulation was in the public domain, the secret would be lost and the manufacturer’s competitors would be in a position to take advantage of it.
The Chief Ombudsman also accepted that there was a strong public interest in being assured that the formulation of Foray 48B was safe for the purposes for which it was being used. Knowing the formulation of Foray 48B may have helped to give that assurance, especially in the absence of other circumstances or information which does.
Against this, he considered the steps that had been taken ensure the health risks flowing from the spraying programme were within acceptable limits, including:
assessments by the Pesticides Board and Environmental Risk Management Authority;
an independent and comprehensive health risk assessment by the ADHB; and
provision of a dedicated painted apple moth health service to provide advice, treatment and assistance to members of the community.
The Chief Ombudsman described the steps taken as ‘comprehensive and publicly known following review by the country’s recognised authorities on these matters’.
The Chief Ombudsman concluded the competing interests were finely balanced, but the considerations favouring disclosure did not outweigh the need to withhold. Had the steps taken by the Government been less than they had been, the balance between release and withholding may have been different.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.