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Theragenics Corp. v. The Georgia Dep't of Natural Resources

State agencies must ascertain whether documents contain protected trade secrets before disclosing the documents under the Open Records Act.

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Appellant Theragenics Corporation is a Georgia corporation founded in 1981 to develop, manufacture and sell radioactive “seeds” sold under the brand name of TheraSeed® that are used in a cancer treating procedure known as brachytherapy.1 The radioactive ingredient in TheraSeed® is Palladium-103, also referred to as Pd-103. The active ingredient in Pd-103 does not exist in nature, and Theragenics manufactures the raw material used in TheraSeed® using its own proprietary method. Theragenics was the first company in the world to produce and commercially market a Palladium brachytherapy seed, and is apparently one of only two companies in the world manufacturing and selling a bracytherapy seed containing Pd-103 as the active ingredient.2

Because of the nature of its product, Theragenics faced significant and unique problems in developing and manufacturing TheraSeed®.3 And because radioactive material is used in manufacturing TheraSeed®, Theragenics’ operations are subject to regulation by the appellee in this case, the Environmental Protection Division EPD of the Georgia Department of Natural Resources. In order to receive and maintain a license to operate in Georgia, Theragenics has been required to furnish the EPD with detailed information concerning all aspects of its operation. This has resulted in a substantial number of documents being filed with the EPD. Theragenics designated approximately one-third of the documents as “proprietary” or “confidential” when they were submitted to the EPD.

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