For over a year and a half now The Jackal has been attempting to learn exactly what was onboard the MV Rena when it ran aground near Tauranga on 5 October 2011. I was wanting this information to try and work out the potential environmental impact, but unfortunately my efforts have been in vain.
On 10 October 2011, I made a formal request under the Official Information Act (PDF) to Maritime New Zealand for information relating to what the MV Rena was carrying, which they declined. I then approached the Ombudsman about that lack of disclosure.
This week, I received the Ombudsman's final ruling on the matter:
Here's the released short description of goods the MV Rena was carrying:
On 10 October 2011, I made a formal request under the Official Information Act (PDF) to Maritime New Zealand for information relating to what the MV Rena was carrying, which they declined. I then approached the Ombudsman about that lack of disclosure.
This week, I received the Ombudsman's final ruling on the matter:
OFFICIAL INFORMATION ACT COMPLAINT
MARITIME NEW ZEALAND
REQUEST FOR A COPY OF THE INVENTORY LIST FOR THE MV RENA
Ombudsman
Thank you for your email of 19 September 2012, concerning your Official Information Act (OIA) complaint about the decision of Maritime New Zealand (MNZ) to refuse your request for the inventory list of the cargo on the MV Rena.
Following receipt of your email, the investigator assisting me sought further information from MNZ and the Mediterranean Shipping Company (MSC), the shipping company that chartered the MV Rena. By email of 8 May 2013, MNZ released some further information to you.
I have now had an opportunity to consider your comments on my provisional view and the further information provided to me. Having considered all the issues raised, I have now formed the opinion that it was open to MNZ to refuse your request, on the basis that it is necessary to protect information where the release of that information would be likely to unreasonably prejudice the commercial position of the shipping company and those shipping and receiving cargo on the MV Rena (section 9(2)(b)(ii) of the OIA refers).
While there is a high public interest in the release of information about the cargo on the MV Rena, the further information provided to you meets this interest.
I have outlined the basis for my opinion below.
My role
As an Ombudsman, I am authorised to investigate and review, on complaint, any decision by which an agency subject to the OIA refuses to make official information available when requested.
My role in undertaking an investigation is to evaluate the grounds for refusing requests for official information in terms of the tests set out in the OIA, and to form an opinion as to whether the request was properly refused.
Background
On 10 October 2011 you requested the inventory list detailing what the MV Rena cargo ship was carrying when it struck Astrolabe reef on 5 October 2011.
By letter of 8 November 2011, MNZ advised that it held the cargo manifest for the MV Rena, and that it was withholding this information pursuant to section 9(2)(b)(ii) of the OIA.
You asked me to investigate the decision to withhold the cargo manifest.
Relevant to this investigation, section 9(2)(b)(ii) of the OIA provides good reason for withholding official information where it is necessary to: "protect information where the making available of the information ... would be likely unreasonably to prejudice the commercial position of the person who supplied or who is the subject of the information".
The interest in withholding the information must not be "outweighed by other considerations which render it desirable, in the public interest, to make that
information available" (section 9(1) of the OIA refers).
Comments by MNZ
The investigator assisting me met with MNZ to discuss the decision to withhold the manifest.
She was advised that the manifest is the only information held by MNZ that falls within the scope of your request. It was provided to MNZ following the notice issued on 6 October 2011 pursuant to section 248 of the Maritime Transport Act 1994.
The manifest is very detailed, and includes:
who is shipping the cargo;
who is receiving the cargo;
the route on which the goods are shipped;
the number and kind of packages;
a description of the goods; and
the gross weight and measurements of the goods.
Shipping manifests are not available to the public, and are very rarely provided to port control authorities. MNZ advised that shipping routes are commercially sensitive.
The route a particular vessel takes impacts on the profit ability of thatvessel. I understand that this information cannot be determined from other publicly available documents. MNZ advised that if the shipping routes were released, it would be likely to impact on the competitive position of the shipping company.
The manifest also provides information on MSC's customers. Release of information identifying MSC's customers would prejudice MSC as it would enable competitors to target the MSC's customer base. The prejudice would be unreasonable as the information is not publicly available for any other shipping company.
Where operating commercially, details of the vendor, purchaser and volume of goods is also commercially sensitive. The volume of goods bought and sold, and the supplier of those goods, impacts on the commercial position of both the vendor and purchaser. Based on the information recorded in the manifest, other suppliers of similar products could target purchasers, and competitors to purchasers would be made aware of the volume and type of goods being imported and their source.
The investigator queried whether this information could be removed from the manifest and the manifest then made available with essentially just a list of the cargo on the MV Rena.
She was advised that this information is already publicly available, and was provided to you. However, it transpired that this reference was only to the list of dangerous goods.
My provisional opinion
By email of 18 September 2012, I advised you of my provisional view on the complaint.
I considered that the commercial position of both MSC and commercial vendors and purchasers of goods would be likely to be prejudiced by release of the manifest, through the disclosure of shipping routes, customers of MSC, and details of vendors and purchasers of the goods carried together with the level of stock bought and sold.
This would be unreasonable as it is commercially sensitive information that is not made available in regard to any other shipping company.
I therefore accepted that release of the manifest would be likely to unreasonably prejudice the commercial position of MSC and commercial importers and suppliers of goods on the MV Rena (section 9(2)(b)(ii) refers).
I considered that there was some public interest in the release of information about the cargo on the MV Rena, though this would be confined to toxic or dangerous cargo. I could not see what public interest there would be in information on general cargo carried by the MV Rena. Having reviewed the manifest and the information made available by MNZ, I considered that the public interest was met by the already available information.
I invited you to comment on my provisional view.
Your comments
By email of 19 September 2012 you commented on my view. You advised:
I have not made a request for the MV Rena's entire Cargo Manifest, I have made a request for the inventory list. I am not interested in knowing who is shipping what cargo, who is receiving the cargo, the address of either party or the route the cargo takes. I am specifically interested in exactly what is being shipped and in what quantities?
Maritime New Zealand has released some of this information already because of public interest in dangerous goods, but that release of information does not entirely fulfil my request for information. The reason I'm interested in exactly what the MV Rena was carrying is because of the cumulative effect of various substances. I believe Maritime New Zealand has not considered this aspect and might view some substances to be innocuous when in fact they are not when combined together. Only a complete inventory list including quantities will allow a proper environmental impact calculation to be undertaken.
Maritime New Zealand has shown that there's no commercial sensitivity in releasing information on what the MV Rena was carrying because they have already released information concerning dangerous substances.
Please let me assure you that the information if released will not be released further to any competitor shipping companies. Information concerning what the MV Rena was carrying will only be published if there is a public or scientific interest in making that information available to the general public.
There's considerable public interest in the effects on the environment from the MV Rena disaster and no reasonable argument for not releasing the requested information because of commercial sensitivity. In my opinion, there's no risk to the companies financial or legal position by upholding my request and any commercial prejudice that is being perceived is entirely unreasonable.
Further comments from MNZ
The investigator discussed your comments with MNZ.
As noted above, the only information held by MNZ that fell within the scope of your request was the manifest. MNZ did not hold a less detailed list of the goods on the MV Rena.
The investigator therefore suggested release of one of the fields in the manifest that described the goods carried on the MV Rena.
MNZ were unable to provide detailed comments on the specific field.
Comments from MSC
The investigator consulted MSC on the release of the specific description field. In doing so the investigator noted the public interest in release of information about the cargo on the MV Rena.
MSC advised that release of the column would be extremely detrimental to its business. Many of its clients work in a small export sector, and release of the detailed description of the goods and volume shipped would provide competitors with an advantage over MSC.
MSC gave the examples of specific products, and how competitors could review the released information and then target specific exporters. MSC advised that importing and exporting in New Zealand is extremely competitive.
The investigator asked how that differed from the scenario where a shipping company could list the exporters of a specific product and target the exporters who do not currently use that company's services. MSC advised that knowing the current shipping company an exporter used would enable a competitor to tailor a package specifically to that exporter, with reference to the current service provided by MSC.
MSC also noted that the specific field of the manifest is the only free field section of the manifest. Clients can enter any details they wish to be on the bill of lading into that field.
The investigator sought release of a high level list of goods on the MVRena. MSC advised that it would not be willing to release quantities, as this would often disclose the client, but could release a high level list.
Further information released to you
By email of 8 May 2013, MNZ released to you the high level list of goods created by MSC following its meeting with the investigator.
Here's the released short description of goods the MV Rena was carrying:
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Click on images to enlarge
My opinion
Based on the information outlined above, I have now formed the opinion that it is open to MNZ to refuse your request, on the basis that it is necessary to protect information where the release of that information would be likely to unreasonably prejudice the commercial position of the shipping company and those shipping and receiving cargo on the MV Rena (section 9(2)(b)(ii) of the OIA refers).
While there is a high public interest in the release of information about the cargo on the MV Rena, the further information provided to you meets this interest.
I have now concluded my investigation of your complaint.
Yours sincerely
David McGee Ombudsman
It's unfortunate that Maritime New Zealand is refusing to release the full inventory, making me wonder exactly what substances the MV Rena was carrying that they don't want the public to know about?
I guess we will never know what this substance leaking from the stricken ship, which in my opinion looks a lot like yellowcake, actually is.
Interestingly enough the Australian government also sites "unreasonably prejudice of commercial position" as a reason to not inform the public of what ships are carrying yellowcake. Is it just a coincidence that the MV Rena was on a known shipping route for transporting yellowcake from Australia? I guess New Zealand isn't as nuclear free as the public is led to believe.
