Forbidden Foods Pty Ltd v Rice Marketing Board for the State of New South Wales

ed. That material is not to be released to the applicant or the public.

Introduction

1. On 2 September 2020 the Appeal Panel remitted for reconsideration part of the decision made in administrative review proceedings brought by Forbidden Foods Pty Ltd (Forbidden Foods) in respect of the determination by the Rice Marketing Board of New South Wales (the RMB) of its application for access to information under the Government Information (Public Access) Act 2009 (the GIPA Act): Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Ltd; Forbidden Foods Pty Ltd v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 (the Appeal Decision).
2. Forbidden Foods had sought access to documents held by the RMB for the period 1 January 2013 to 28 February 2018 relating to the grant to Ricegrowers Ltd t/as SunRice (SunRice) of the exclusive export rights for rice grown in New South Wales. The RMB had identified 30 documents within the scope of Forbidden Foods' access request, and determined to release 8 documents, and one with redactions, and to refuse access to 21 documents.
3. In the administrative review proceedings SunRice, which had been consulted by the RMB in accordance with s 54 of the GIPA Act in the course of its determination of the access request, exercised its right under s 104(3) of the GIPA Act to appear and be heard in the administrative review. The Information Commissioner exercised the right conferred by s 104(1) of the GIPA Act to appear and be heard.
4. In the decision published on 16 January 2020 I made orders granting access, by consent, to 8 documents, and granting access to the 13 documents that remained in dispute, subject to some redactions: Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 (the Decision).
5. There were three internal appeals under s 80 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) lodged against the Decision: 1. AP20/07117: an appeal by the RMB; 2. AP20/07149: an appeal by SunRice; 3. AP20/22787: an appeal by Forbidden Foods.
6. The Appeal Panel dismissed appeal proceedings AP20/07149 under s 55(1)(b) of the NCAT Act, concluding that SunRice was not a party to the administrative review proceedings and that that appeal was not competent. The Appeal Panel also concluded that the right of appearance exercised by SunRice under s 104(3) of the GIPA Act at first instance did not extend to internal appeals. The Appeal Panel granted SunRice's application to be joined as a party to the appeal by the RMB (AP20/07117), and granted leave to the RMB to amend its grounds of appeal include the grounds relied upon in SunRice's purported appeal. The Appeal Panel extended the time for the lodging of Forbidden Foods' appeal (AP20/22787), and joined SunRice to that appeal.
7. The orders made by the Appeal Panel on 2 September 2020 were as follows: 281.We make the following orders: In respect of AP20/7117: (1)Leave is refused to appeal on grounds other than a question of law. (2)The appeal is allowed in part. (3)The balance of the appeal is dismissed. In respect of AP20/22787: (4)The time for filing of the notice of appeal lodged by Forbidden Foods is extended to 21 May 2020. (5)Rice Growers Ltd t/as SunRice is joined as a party to the appeal proceedings AP20/22787 under s 44(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). (6)The appeal is allowed. In respect of AP20/7117 and AP20/22787: (7)Orders 1(a) and 2 made by the Tribunal on 16 January 2020 are affirmed. (8)Order 1(b) made by the Tribunal on 16 January 2020 in respect of Documents 25 and 26 is affirmed. (The Appeal Panel notes that, by consent on 10 July 2020, Order 1(b) of the decision made by the Tribunal on 16 January 2020 in respect of Document 27 was affirmed.) (9)Order 1(b) made by the Tribunal on 16 January 2020 in respect of Documents 11, 12, 13, 14 and 15 (the Independent Verification Reports) and Documents 2, 4, 6, 8 and 10 (the Reporting Letters) is set aside, and that part of the Tribunal's decision is remitted for reconsideration by the Tribunal as originally constituted, without further evidence, after: (a)Determining whether cl 1(d) and/or cl 1(f) of the Table to s 14 of the GIPA Act, apply to some or all of the information contained in the Independent Verification Reports having regard to the submissions made by the Board and SunRice in the proceedings below (referred to as the "subject submission" at [164] in the Appeal Panel's reasons) together with the findings not set aside on appeal. (b)If the answer to (a) is yes, determining what weight to attribute to the public interest considerations against disclosure in cl 1(d) and/or cl 1(f). (c)In relation to the "material on market share in specific markets" (as variously described by the Tribunal in [172(1)], [172 (2)], 172, [172(4)] and [172(5)]) in the Reporting letters (the Redacted Market Information), determining what weight to attribute to the public interest considerations against disclosure in cl 4(c) and/or cl 4(d) of the Table to s 14 of the Government Information (Public Access) Act 2019. (d)Using as a basis the annexure to the submissions prepared by SunRice and filed in the appeal proceedings on 23 April 2020, identify any information in the Reporting Letters that is the same as, or similar to, the Redacted Market Information. (e)In relation to the information identified in (d) above, attributing weight to the public interest considerations in cl 4(c) and/or cl 4(d). (f)Using as a basis the Note to Appeal Panel re Ground 8 filed by the Board in the appeal on 3 July 2020, identifying the information in the Independent Verification Reports that is the same as, or similar to, the Redacted Market Information. (g)In relation to the information identified in (f) above, attributing weight to the public interest considerations in cl 4(c) and/or cl 4(d) in relation to that information. (h)Taking into account (a), (b), (c), (d), (e ), (f) and (g) above together with the findings made by the Tribunal not disturbed on appeal, apply s 13 of the Government Information (Public Access) Act 2019. (10)The Registrar is requested to give to the Tribunal the annexure to the submissions prepared by SunRice and filed in the appeal proceedings on 23 April 2020 and the Note to Appeal Panel about Ground 8 filed by the Board in the appeal on 3 July 2020.

The access application

1. The background to the access application and the application for administrative review was summarised by the Appeal Panel in the following terms: Background to decision under appeal 6. New South Wales produces 99 per cent of all rice grown in Australia. The Rice Marketing Act 1983 (NSW) vests all rice produced in NSW in the Board, a statutory body constituted under that Act. As a consequence, the Board is the only entity permitted to sell and export rice grown in NSW. Growers wishing to sell NSW-grown rice must sell to the Board. That arrangement is commonly referred to as "single desk marketing". 7. In 2006, the Board granted ASX-listed company, Rice Growers Ltd t/as SunRice (SunRice), the sole and exclusive export licence (SEEL) to sell NSW-grown rice outside Australia. The Board periodically reviews that licence, most recently in 2017 when it was renewed for five years. The vesting regime created by the Rice Marketing Act and the consequent decision made by the Board to grant SunRice an exclusive licence to export NSW-grown rice have been the subject of regular reviews conducted by the NSW Department of Primary Industries. The next review is likely to be conducted this year. 8. Single desk marketing of rice has been the subject of significant controversy and public debate. In 2016, the Australian Government's Productivity Commission recommended its abolition, asserting that it confers an exceptionally valuable right on a private body and has the anti-competitive effect of excluding other companies from engaging in business in their desired markets. 9. A key point in issue between critics and proponents of the single desk marketing of NSW rice is whether it delivers higher returns to NSW rice growers than would otherwise be achieved were it not for that arrangement. 10. It is against this background that, on 1 March 2018, Victoria-based specialty rice grower and exporter, Forbidden Foods, applied under the GIPA Act for access to documents held by the Board, which in broad terms relate to the Board's decision to grant the SEEL to SunRice and subsequent internal and external reviews of that decision. 11. In a decision made on 11 March 2019, the Board identified 30 documents as falling within the scope of Forbidden Foods' "access request" and decided to grant Forbidden Foods access to nine documents, one in part, and to refuse access to 21 documents. 12. Forbidden Foods applied to the NCAT for review of that decision. Following a four-day hearing, of which two days were in closed session (s 107 of the GIPA Act), the Tribunal varied the Board's decision by: (1)granting access, with the consent of the Board, to Forbidden Foods to eight documents, one in part (Order 1(a)); (2)granting access to Forbidden Foods to an additional 13 documents, five with redactions made in accordance with [172] of the Tribunal's decision (Order 1(b)); and (3)affirming the balance of the Board's decision not to release the remaining nine documents (Order 2).

Legislative Framework

1. The legislative framework for determination of the access application under the GIPA Act was summarised by the Appeal Panel in the following terms: Legislative framework 126. The objects of the GIPA Act are set out in s 3(1): (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. 127. Section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the object of that Act and that the discretions conferred by that Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 128. The information the subject of Forbidden Foods' "access application" is "government information" held by an "agency": see definitions of those terms in s 4(1) of the GIPA Act. 129. Section 5 of the GIPA Act creates a "presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure". 130. Section 9(1) provides that "a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information". 131. Section 12 states: Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. … A note to s 12(2) gives examples of public interest considerations in favour of disclosure of information and includes: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. 132. Section 13 sets out the test to be applied in determining whether there is an overriding public interest against disclosure of government information: Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 133. Section 14 restricts the public interest considerations against disclosure that a decision-maker can take into account when applying the public interest test in s 13: (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. 134. The considerations listed in the Table to s 14, which are relevant to this appeal are: Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, … 4 Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - … (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests, … 135. Section 15 requires that the determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with five principles: Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 136. Section 55 of the GIPA Act permits the Tribunal to take into account "personal factors of the application": Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. … 137. Section 100(1) of the GIPA Act gives a person aggrieved by a "reviewable decision" of an agency a right to apply to NCAT for an administrative review of that decision under the ADR Act. The Board's decision is a reviewable decision: GIPA Act, s 80(d). The burden of establishing that a reviewable decision is justified lies on the agency: GIPA Act, s 105(1). 138. In determining an application made under s 100(1) of the GIPA Act, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it: ADR Act, s 63(1). In determining that application, the Tribunal may affirm, vary, set aside the reviewable decision and make another decision in substitution for that decision, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).

The administrative review proceedings

1. Evidence in the administrative review proceedings was provided on behalf of the RMB by Ms Carolyn Chiswell, Secretary of the RMB; on behalf of SunRice by Mr William Morris, Agribusiness Commercial Manager of SunRice; and on behalf of Forbidden Foods by Mr Marcus Brown, Managing Director of Forbidden Foods, each of whom provided a written statement and gave oral evidence. The detail of that evidence is not repeated in these reasons, and where necessary to explain my reasons on the remittal, reference is made to that evidence as discussed in the Decision.
2. References were made in the Decision to a transcript provided during the hearing of the oral evidence of Ms Chiswell and Mr Morris by reference to the question and answer numbering in that document. A formal transcript of the first instance proceedings was provided in the appeal, and transcript references in these reasons are to that document.
3. Other documents in evidence and the written submissions provided to the Tribunal are identified at paras [35]-[40] of the Decision.
4. Order 1(b) of the Decision in respect of Documents 2, 4, 5, 8 and 19 (the Reporting Letters) and Documents 11, 12, 13, 14, and 15 (the Independent Verification Reports) is the subject of the remittal. That order provided that Documents 2, 4, 6, 8, 10, 11,12, 13, 14, 15, 25, 26, and 27 were to be provided to the applicant, with redactions made to Documents 2, 4, 6, 8 and 10 in accordance with the reasons in paragraph [172] of the Decision. The relevant parts of para [172], with sub-paragraphs (3) and (5) as subsequently corrected by order under s 63 of the NCAT Act (in bold), are: 172. … (1)Document 2: Reporting Letter 27 September 2013- The Tribunal gives modest weight to the considerations against disclosure under cl 1(d), (f) and (g). As to the considerations in cl 4(c) and (d), having regard to the personal factors relevant to the application, the Tribunal gives moderate weight to those considerations for the material on market share in specific markets in Section 4, and detailed financial information in Section 5 and the Appendices, and modest weight in relation to the other information in that document. The Tribunal gives significant weight to the public interest considerations in favour of disclosure. The balance of the public interest lies in favour of disclosure of document 2, with the material in Sections 4 and 5 and the Appendices redacted. (2)Document 4: Reporting Letter 5 September 2014 - The Tribunal gives modest weight to the considerations against disclosure under cl 1(d), (f) and (g). As to the considerations in cl 4(c) and (d), having regard to the personal factors relevant to the application, the Tribunal gives moderate weight to those considerations for the material on market share in specific markets in Section 4, and detailed financial information in Section 5 and the Appendices, and modest weight in relation to the other information in that document. The Tribunal gives significant weight to the public interest considerations in favour of disclosure. The balance of the public interest lies in favour of disclosure of document 4, with the material in Sections 4 and 5 and the Appendices redacted. (3)Document 6: Reporting Letter 28 September 2015 - The Tribunal gives modest weight to the considerations against disclosure under cl 1(d), (f) and (g). As to the considerations in cl 4(c) and (d), having regard to the personal factors relevant to the application, the Tribunal gives moderate weight to those considerations for the material on market share in specific markets in Section 3 under the headings "Market share", and detailed financial information in Section 5 and the tables in the final three pages, and modest weight in relation to the other information in that document. The Tribunal gives significant weight to the public interest considerations in favour of disclosure. The balance of the public interest lies in favour of disclosure of document 6, with the specified material in Section 3, and Section 5 and the last three pages redacted. (4)Document 8: Reporting Letter 5 September 2016 -The Tribunal gives modest weight to the considerations against disclosure under cl 1(d), (f) and (g). As to the considerations in cl 4(c) and (d), having regard to the personal factors relevant to the application, the Tribunal gives moderate weight to those considerations for the material on market share in specific markets in Section 3 under the headings "Market share", and detailed financial information in Section 5 and the three tables at the end of the document, and modest weight in relation to the other information in that document. The Tribunal gives significant weight to the public interest considerations in favour of disclosure. The balance of the public interest lies in favour of disclosure of document 8, with the material in Section 3 under "Market share", and Section 5 and the three tables at the end of the document redacted. (5)Document 10: Reporting Letter 19 September 2017 - The Tribunal gives modest weight to the considerations against disclosure under cl 1(d), (f) and (g). As to the considerations in cl 4(c) and (d), having regard to the personal factors relevant to the application, the Tribunal gives moderate weight to those considerations for the material on market share in specific markets in Section 3 under the headings "Market share", and detailed financial information in Section 5, and modest weight in relation to the other information in that document. The Tribunal gives significant weight to the public interest considerations in favour of disclosure. The balance of the public interest lies in favour of disclosure of document 10, with the material in Section 3 under "Market share", and Section 5 redacted. (6)Document 11: Consultant report 25 September 2013 - the Tribunal gives modest weight to the public interest against disclosure in cl 1(g), and moderate weight, having regard to the personal factors relevant to the application, to the public interests against disclosure in cl 4(c) and (d). The Tribunal gives very significant weight to the public interests in favour of disclosure. The balance of the public interest lies in favour of disclosure of the government information in this document. (7)Document 12: Consultant report 1 August 2014 - the Tribunal gives modest weight to the public interest against disclosure in cl 1(g), and moderate weight, having regard to the personal factors relevant to the application, to the public interests against disclosure in cl 4(c) and (d). The Tribunal gives very significant weight to the public interests in favour of disclosure. The balance of the public interest lies in favour of disclosure of the government information in this document. (8)Document 13: Consultant report 17 August 2015 - the Tribunal gives modest weight to the public interest against disclosure in cl 1(g), and moderate weight, having regard to the personal factors relevant to the application, to the public interests against disclosure in cl 4(c) and (d). The Tribunal gives very significant weight to the public interests in favour of disclosure. The balance of the public interest lies in favour of disclosure of the government information in this document. (9)Document 14: Consultant report 7 September 2016 - the Tribunal gives modest weight to the public interest against disclosure in cl 1 (g), and moderate weight, having regard to the personal factors relevant to the application, to the public interests against disclosure in cl 4(c) and (d). The Tribunal gives very significant weight to the public interests in favour of disclosure. The balance of the public interest lies in favour of disclosure of the government information in this document. (10)Document 15: Consultant report 6 December 2017 - the Tribunal gives modest weight to the public interest against disclosure in cl 1(g), and moderate weight, having regard to the personal factors relevant to the application, to the public interests against disclosure in cl 4(c) and (d). The Tribunal gives very significant weight to the public interests in favour of disclosure. The balance of the public interest lies in favour of disclosure of the government information in this document. …

Confidentiality orders

1. Section 107 of the GIPA Act provides that the Tribunal is to ensure that it does not, in the reasons for decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. The Tribunal must receive evidence and hear argument in the absence of the public, the review applicant and its representative if necessary to do so to prevent disclosure of information for which there is a public interest against disclosure.
2. The evidence and final submissions in the first instance proceedings were heard in open session. A confidential session was held on 28 August 2019 in which SunRice made submissions, and in which the representative of the RMB participated. In a second confidential session held on 13 September 2019 in the absence of the applicant, SunRice, and the public, submissions were made by the RMB.
3. As noted by the Appeal Panel at para [144] of the Appeal Decision, there are two versions of the Decision. Pursuant to an order under s 64 of the NCAT Act, the full version (the Confidential Reasons) was provided only to the RMB and not to Forbidden Foods, SunRice or the Information Commissioner. A redacted version of the reasons (the Open Reasons) was provided to the parties, to SunRice and the Information Commissioner, and published on NSW Caselaw. A further order was made enabling SunRice to access part of the Confidential Reasons, and the sound recording of the confidential session in which it participated: Forbidden Foods Pty Ltd v Rice Marketing Board for the State of NSW (No 2) [2020] NSWCATAD 73.
4. Pursuant to a further order under s 64 of the NCAT Act, those parts of these reasons marked "Not for Publication" are not to be disclosed to the applicant or the public.

Dispensing with a hearing

1. At para [280] of the Appeal Decision the Appeal Panel expressed the view that the issues to be determined on the remittal can be determined "on the papers" without a further hearing as permitted by s 50(1) of the NCAT Act, and without further submissions.
2. Forbidden Foods, the RMB, SunRice and the Information Commissioner were invited to make submissions as to whether an order dispensing with a hearing on the remitted issues should be made, and whether any further submissions are required. Having heard submissions, and being satisfied that the issues on the remittal can be adequately determined in the absence of the parties by considering the evidence and submissions in the original proceedings, and the two additional documents referred to in Order (10) of the Appeal Panel, on 8 September 2020 an order was made pursuant to s 50(2) of the NCAT Act to dispense with a hearing.

Consideration on the remittal

1. The 11 grounds of the RMB's amended appeal are included as an Annexure to the Appeal Decision. The Appeal Panel held that Grounds 1 and 2, and 8A in the RMB's appeal, and Forbidden Foods' ground of appeal, were established.
2. Grounds 1 and 2 of the RMB's amended appeal were that in considering the application of cl 1(d) and (f) of the Table to s 14 of the GIPA Act, there was a failure to consider the impact that disclosure of the Independent Verification Reports would have on the supply of information by SunRice to the RMB, and the consequential prejudice to the effective exercise of the RMB's functions. Ground 8A was that there was a failure to provide adequate reasons for attributing different weight to information redacted from the Reporting Letters and the same or similar information in the Reporting Letters and Independent Verification Reports ordered to be disclosed.
3. Forbidden Foods' appeal was based on an inconsistency between the redaction of information from the Reporting Letters with findings made about the weight attributed to the public interest considerations for and against disclosure. Forbidden Foods contended that there was a misapplication of s 13 of the GIPA Act, and that the ultimate decision not to disclose the Redacted Information was inconsistent with the findings made about the weight to be attributed to the considerations for an against disclosure.

The Reporting Letters and the Independent Verification Reports

1. The Reporting Letters are the documents provided by SunRice to the RMB in response to requests by the RMB for information as part of its annual assessment of the performance of SunRice as the holder of the SEEL. The information requested, and provided in the Reporting Letters, was summarised in the Decision: 83. Documents 1, 3, 5, 7 and 9 are letters from the RMB dated 19 August 2013, 31 July 2014, 31 July 2015, 7 July 2016 and 10 July 2017, which the RMB now considers can be released. In those letters the RMB states that it is undertaking its yearly assessment of the performance of SunRice as the holder of the SEEL, that it will produce a report "summarising its views on the suitability of the current holder, and share this report with rice growers and government", and requests SunRice to provide information on specified matters. Those letters provide the context for the information provided by SunRice in the Reporting Letters, which is the basis on which the independent verification process is undertaken. Mr Morris (ex I1, [14]) describes those letters as adopting an "expanded list format", the list forming the headings of the RMB's public annual reports to NSW rice growers. That the structure of the letters requesting information is generally adopted in the annual reports is confirmed in the Annual Reports in evidence for 2012-2013 to 2016-2017. 84. The matters on which information is requested from SunRice include, as common requests in each year, "Delivery of export price premiums to NSW rice growers"; "Market overview & update"; "Impact of changes in the availability of water"; "Market position"; "Financial reporting"; "Demonstration of freight advantage to rice growers"; and "Demonstration of the advantages of scale to rice growers"; and an update on "Other benefits" to rice growers cited previously. Information on changes in Board and senior management, and material impact or changes in competition from other agricultural products, is also requested. Detail is requested under "Market Overview & Update" of developments in key markets concerning levels of trade, protectionism and other international dynamics, supply and demand dynamics in domestic markets, and related price trends. For "Market Position", detail is requested on international market share, product penetration and range, market conditions including threats, and material changes in SunRice's business segments. 85. SunRice's responses to the RMB's requests are documents 2, 4, 6, 8 and 10. Mr Morris states (ex I1, paragraph [16]) that as Agribusiness Commercial Manager for SunRice, employed since November 2011, he is primarily responsible for drafting SunRice's response which is then approved for submission to the RMB by SunRice's Chief Financial Officer and Chief Executive Officer. He describes the work as involving researching, analysing and compiling detailed data from several sources, both internal to SunRice and through subscription services. He then prepares graphs, tables, descriptions, analysis and statistics on SunRice's market position, the premiums obtained in specific markets, and its costs and scale advantages. Once the response is submitted to the RMB, SunRice also provides access to its export price premium and freight scale advantage calculations directly to the independent consultant to enable it to review and verify SunRice's methodology, calculations and source information as required by the SEEL. Occasionally the independent consultant has clarification questions for SunRice, to which SunRice responds in a letter to the RMB. Each of documents 23 and 25 is a clarification letter from RMB to SunRice, and each of documents 24 and 26 are SunRice's respective responses.

Issues on the remittal

1. The issues to be determined on the remittal are addressed in the order directed in Order 9(a)-(h) of the Appeal Panel.

(a)Determining whether cl 1(d) and/or cl 1(f) of the Table to s 14 of the GIPA Act, apply to some or all of the information contained in the Independent Verification Reports having regard to the submissions made by the Board and SunRice in the proceedings below (referred to as the "subject submission" at [164] in the Appeal Panel's reasons) together with the findings not set aside on appeal:

1. The Appeal Panel upheld grounds 1 and 2 in the RMB appeal, concluding that the RMB had advanced the submission that disclosure of the Independent Verification Reports could reasonably be expected to prejudice the supply of information by SunRice to the RMB which in turn could reasonably be expected to prejudice its ability to discharge its functions; that that submission was relevant to the determination of whether the public interest considerations against disclosure in cl 1(d) and (f) applied to the Independent Verification Reports; and that the Tribunal was obliged to, and did not, consider that submission in determining whether cl 1(d) or (f) applied to the Independent Verification Reports.
2. The Appeal Panel referred at para [165] of the Appeal Decision to the written and oral submissions made in support of the submission. The written submissions filed by the RMB on 5 July 2019 contended that disclosure of the Independent Verification Reports could reasonably be expected to prejudice the supply to the RMB of confidential information that facilitates the effective exercise of the RMB's functions, on two bases: [64] The respondent makes this submission on two bases. First, insofar as the Independent Verification Reports contain data that has been independently supplied by SunRice to the RMB in its Reporting Letters, the respondent submits this public interest consideration against disclosure applies for the reasons articulated above in relation to the Reporting Letters. [65] Secondly, insofar as the Independent Verification reports reflect additional information that is supplied to Grant Thornton directly from SunRice to enable it to undertake its verification on behalf of the RMB, it is reasonable to infer that SunRice would no longer provide an independent consultant with access to its calculations and methodologies should the Reports be disclosed. This would, in turn, undermine the ability of the independent consultant to undertake its verification functions.
3. As noted by the Appeal Panel at para [165(2)], oral submissions were made to the same effect, including in the confidential session with the RMB on 13 September 2019.

(b): If the answer to (a) is yes, determining what weight to attribute to the public interest considerations against disclosure in cl 1(d) and/or cl 1(f):

1. The challenge to the terms used in the Decision in the attribution of weight to the applicable public interest considerations both for and against disclosure of the information, being in a range from modest, moderate, significant, to very significant, was not upheld (see para [238] Appeal Decision).
2. The Tribunal has found that there is a possibility that disclosure of the information in the Independent Verification Reports may lead SunRice to provide less detail and analysis in the information it provides to the RMB, and thus prejudice the supply of such confidential information to the RMB; and that disclosure could reasonably be expected to have the effect stated in cl 1(d) and 1(f) of the Table to s 14.
3. As a small agency with limited resources, the RMB is dependent on the information provided to it by SunRice, and in the Independent Verification Reports, to establish that measured against the EPP and FSA criteria the single desk arrangements benefit NSW rice growers, as required by the RMB's object (b). However, the evidence did not establish that the RMB had considered whether alternative sources of information might be available, or had attempted to quantify what additional resources might be required to obtain alternative sources of information. SunRice has contractual obligations to provide information both to the RMB and to the consultant, and an interest in providing sufficient information so as to justify the continuation of the sole export licence arrangement. The evidence of Mr Morris did not clarify the extent to which the detail and amount of information provided might be affected: while he stated that it would be affected, in cross examination he confirmed that SunRice would continue to comply with its obligations under the SEEL and the SLA, including providing access to the consultant. While he maintained that the RMB would not see the same level of detail, Mr Morris acknowledged that the RMB was entitled to evidence to allow quantification and an explanation of the methodologies used to calculate the EPP.
4. The evidence does not establish that any consequential effect of disclosure of the Independent Verification Reports on the provision of information by SunRice to the RMB is likely to be significant. The Tribunal finds that while disclosure of the information in the Independent Verification Reports may result in a reduction in quantity or detail of information provided by SunRice to the RMB or in the access to its calculations and methodologies provided to the consultant to facilitate verification of the EPP and the FSA in the Independent Verification Reports provided to the RMB, that is unlikely to be other than minimal. It is not possible to conclude on the available evidence that any consequential effect of the RMB's ability to carry out its functions is likely to be significant. The Tribunal concludes that modest weight should be given to the public interest consideration against disclosure in cl 1(d) and (f) of the Table, in relation to the Independent Verification Reports.

(c): In relation to the "material on market share in specific markets" (as variously described by the Tribunal in [172(1)], [172(2)], [172(3), [172(4)] and [172(5)] in the Reporting letters (the Redacted Market Information), determining what weight to attribute to the public interest considerations against disclosure in cl 4(c) and/or cl 4(d) of the Table to s 14 of the Government Information (Public Access) Act 2019:

1. The public interest considerations against disclosure in cl 4(c) and (d) of the Table apply where disclosure of the information could reasonably be expected to diminish the competitive commercial value of that information, or prejudice legitimate business, commercial, professional or financial interests, respectively. As noted at para [125] of the Decision, information that has "competitive commercial value" is information of commercial value gained in or relating to a competitive commercial or business context: McKinnon v Blacktown City Council [2012] NSWADT 44. Information that has resulted from the investment of research, time and effort by a business may have commercial value: Neary v State Rail Authority [1999] NSWADT 107.
2. At paras [126]-[128] of the Decision the evidence as to the information in the Reporting Letters was summarised: 126. Mr Morris' evidence was that the work involved in responding to the RMB's annual letters includes researching, analysing and compiling detailed data from several sources, both internal to SunRice and through subscription services. In relation to the information from subscription-only resources, SunRice buys that information because it provides SunRice with detailed market data about its key markets, California rice prices, and pricing information about key rice varieties; and there is otherwise not a lot of information available on or transparency around rice prices and market activity and conditions. SunRice uses that information both for its own commercial purposes, including determining its export and marketing strategies into each specific market, and also to prepare the annual response to the RMB. The information has significant commercial value to SunRice evidenced by the approximately $800,000 in subscription fees it pays annually, with the information used in preparing the annual responses having a value of approximately $150,000 on a pro rated basis. In his opinion disclosure would diminish the competitive value of that information to SunRice. 127. Each of the five Reporting Letters adopts the same format, structured in accordance with the headings in the RMB's letters of request. At paragraphs [38]-[44] of his first affidavit Mr Morris discusses the Price Premium information contained in document 2, which he states provides the prices per tonne, value of sales, and premiums obtained in each of SunRice's export markets. In paragraphs [46]-[50] he discusses the sections in document 2 on Market Overview & Update, Market Position, and Ability to successfully compete. Paragraphs [59]-[61] discuss the freight scale advantage section in document 2, and paragraphs [63]-[66] discuss the demonstration of advantages of scale to growers in document 2. The equivalent sections in documents 4, 6, 8 and 10 are discussed in paragraphs [45], [51]-[52], [54], [62], and [66]. 128. An examination of each of the confidential documents confirms the structure and content as outlined by Mr Morris. Based on that examination, the Tribunal finds that the information in those documents is at a level of detail consistent with Mr Morris' evidence. Consistent with SunRice's submissions, that information in parts appears to be based on both subscription information and information derived from SunRice's own data and observations. 129. The Tribunal accepts the evidence of Mr Morris that the information contained in the Reporting Letters which is derived from SunRice's agents and distributors and its own data has commercial value; and that the information derived from the subscription information for which SunRice pays has commercial value to SunRice, first because it has been used for SunRice's own commercial purposes in determining its export and marketing strategies in each specific market, and secondly to prepare the annual responses to the RMB.

(d): Using as a basis the annexure to the submissions prepared by SunRice and filed in the appeal proceedings on 23 April 2020, identify any information in the Reporting Letters that is the same as, or similar to, the Redacted Market Information:

1. Central to Grounds 8, 8A and 8B of the RMB's appeal was the contention that the information in the Reporting Letters which was ordered not to be disclosed (the Redacted Information) was the same as or similar to information contained elsewhere in the Reporting Letters and the Independent Verification Reports: see para [210] Appeal Decision.
2. In an Annexure to its submissions dated 23 April 2020 SunRice identified that part of the Redacted Information relating to market share, which it submitted was the same as or similar to information contained elsewhere in the Reporting Letters that was ordered to be disclosed. The Appeal Panel commented: 213. …Having examined that document together with each Reporting Letter, we are satisfied that, as asserted by the Board and SunRice, there is considerable overlap between the information contained under the headings Market Overview & Update (which the Tribunal ordered to be disclosed) and Market Share (which the Tribunal ordered not to be disclosed). Some of the information contained in the latter is more detailed than that contained in the former. Nonetheless, some of the information contained in the latter is the same as or similar to that contained in the former.
3. The Appeal Panel commented in relation to the Independent Verification Reports: 214. At our request, after the hearing the Board provided to us (but not the other parties and Information Commissioner) a document identifying the parts of the Independent Verification Reports it asserts contain information that is the same as or similar to that contained in the Redacted Information. Having reviewed that document together with each Reporting Letter and Independent Verification Report, we are satisfied that some of the information in those documents is the same as or similar to the Redacted Information relating to market share.
4. The Appeal Panel considered whether, as contended by the RMB, there was a failure to explain or adequately explain the basis for the decision to order that certain information in the Reporting Letters not be disclosed, while ordering the same or similar information contained in the Independent Verification Reports and elsewhere in the Reporting Letters to be disclosed.

(e): In relation to the information identified in (d) above, attributing weight to the public interest considerations in cl 4(c) and/or cl 4(d):

1. The weight to be attributed to the public interest considerations against disclosure of the information in cl 4(c) and (d) for the information identified in paras [83]-[86] above is affected by the diminution in commercial value of the information by reason of its historical nature, in the context of the volatility of the international rice market and the adoption by SunRice of a new marketing strategy in its 5 year strategic plan, and the fact that some of that information, as discussed in para [169] of the Decision, is already in the public domain.
2. A further factor relevant to the attribution of weight is that use of the information identified in para [86] above as similar to the Redacted Market Information depends on the user having access to further information or data that may not be publicly available.
3. Mr Morris expressed concern (para [40] of his statement of 16 July 2019) that disclosure of price premium information, being the prices per tonne, the value of sales, and premiums obtained in each export market, could allow a competitor or third party to reverse engineer SunRice's volume of sales and market share in each region. That information would give third parties a potential "price guide", providing visibility of what distributors receive, impacting SunRice's commercial negotiations. However, Mr Morris also stated (para [32] of his statement of 23 August 2019) that competitors' and potential competitors' supply chains, volumes, suppliers and cost bases are often different. In oral evidence, Mr Morris acknowledged that the extent to which other participants in a market may have access to information that might enable them to undertake such an exercise would depend on whether they competed across all the difference segments or only in one portion (Transcript 28 August 2019, p 58). The evidence did not establish the likelihood of that.
4. Having regard to those factors, the Tribunal attributes modest weight to the information in the Reporting Letters that is the same as or similar to the Redacted Market Information.
5. The personal factors of the application, being Forbidden Foods' wish to be able to purchase and export NSW grown rice in competition with SunRice, and its current competition with SunRice, may be taken into account as a factor against providing access, being relevant to the consideration of whether disclosure of the information concerned could reasonably be expected to have any of the effects referred to in cl 4(c) and (d) of the Table to s 14. Taking those personal factors into account, the weight to be given to the public interest considerations against disclosure of the information in the Reporting Letters identified above is moderate.

(f): Using as a basis the Note to Appeal Panel re Ground 8 filed by the Board in the appeal on 3 July 2020, identifying the information in the Independent Verification Reports that is the same as, or similar to, the Redacted Market Information:

1. The purpose of the Independent Verification Reports was summarised in general terms by Ms Chiswell as being to provide independent verification of the EPP and FSA reported by SunRice by an independent auditor with expertise in international commodity market analysis. Paragraphs [132]-[143] in the Confidential Reasons explained the structure and content of the Independent Verification Reports, referred to at para [37] above.
2. The Note to Appeal Panel identifies additional locations for material which the RMB submits corresponds with the Redacted Market Information in the Reporting Letters. On reconsideration of each of the Independent Verification Reports, with the assistance of the confidential Note to Appeal Panel re Ground 8 filed on 3 July 2020, the Tribunal makes the following findings.
3. NOT FOR PUBLICATION
4. NOT FOR PUBLICATION
5. NOT FOR PUBLICATION
6. NOT FOR PUBLICATION
7. NOT FOR PUBLICATION
8. NOT FOR PUBLICATION
9. In summary, there is some information in each of the Independent Verification Reports that corresponds to the Redacted Market Information, and some that is similar, the latter requiring additional information to determine. The limited overlap or duplication of information on market share may be explained by reference to the different purposes of the Reporting Letters, in which SunRice provides information on the broad range of matters as requested by the RMB, and the Independent Verification Reports, in which the performance metrics of the EPP and FSA are assessed and verified.

(g): In relation to the information identified in (f) above, attributing weight to the public interest considerations in cl 4(c) and/or cl 4(d) in relation to that information:

1. The weight to be attributed to the public interest considerations against disclosure in cl 4(c) and (d) in relation to the information identified in paras [95] and [97]-[100] above is affected by the historical nature of that information in the context where the volatility of the international rice market, and the change in SunRice's marketing strategy adopted in 2018, have diminished the commercial value of that information.
2. NOT FOR PUBLICATION
3. Having regard to those factors, the Tribunal attributes modest weight to the public interest considerations against disclosure under cl 4(c) and (d) of the Table to s 14 in relation to the information identified in paras [95], [97]-[100] above. As was the case with the corresponding information in the Reporting Letters, the personal factors of the application, being Forbidden Foods' wish to be able to purchase and export NSW grown rice in competition with SunRice, and its current competition with SunRice, may be taken into account as a factor against providing access to the extent that that factor is relevant to the consideration of whether disclosure of the information concerned could reasonably be expected to have any of the effects referred to in cl 4(c) and (d) of the Table to s 14. Taking the personal factors of the application into account, the weight to be given to the public interest considerations against disclosure of information that is the same as or similar to the Redacted Market Information is moderate.

Taking into account (a), (b), (c), (d), (e ), (f) and (g) above together with the findings made by the Tribunal not disturbed on appeal, apply s 13 of the Government Information (Public Access) Act 2019:

1. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure". Section 13 provides that there is an overriding public interest against disclosure if, and only if, the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure. In undertaking that consideration, it is relevant that disclosure cannot be made subject to any conditions on the use or disclosure of information: GIPA Act, ss 15(e), 73.
2. The Appeal Panel did not disturb the approach adopted in paras [53]-[54] of the Decision to determination of the balancing of public interests required by s 13 of the GIPA Act: 53. In accordance with the principles established in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, in determining this application the Tribunal is required to: (1)Identify the public interest considerations in favour of disclosure; (2)Consider whether the information in issue, if released, would give rise to a public interest against disclosure on the grounds that release of the information could reasonably be expected to have the effect as contended by the RMB; and (3)If so satisfied, consider where the balance lies between the public interest considerations in favour of disclosure and those against disclosure, having attributed weight to each consideration, and taking into account the personal factors identified under, and as permitted by, s 55. 54. As confirmed by the Appeal Panel in Transport NSW v Searle [2018] NSWCATAP 93 at [104], while that process requires a broad value judgment to be made, it is not made in a vacuum, but having regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act.
3. Turning now to the steps required under s 13 of the GIPA Act:

(1) Public interest considerations in favour of disclosure:

1. The public interest considerations in favour of disclosure of the information in the disputed documents are the factors identified at paras [58] and [152] of the Decision: 1. disclosure could reasonably be expected to promote open discussion of public affairs, enhance government accountability and contribute to positive and informed debate on issues of public importance, in the circumstances of this case, being debate concerning the merits of the rice-vesting regime, as the sole remaining single export desk regime; 2. disclosure could reasonably be expected to inform the public about the operations of the RMB and its decisions in relation to the single desk export scheme; and 3. the public interest in favour of disclosure in having the material and submissions provided to the next review of the vesting regime being as fully informed as possible, in the context where the information available in published documents is limited and at a high level.
2. Those findings were not disturbed on appeal, and are confirmed.
3. The factors relevant to the weight to be given to the public interest considerations in favour of disclosure were discussed at paras [145]-[151] of the Decision. The finding in para [152] that significant weight should be given to the public interest considerations in favour of disclosure of the information in the Reporting Letters was not disturbed on appeal. In relation to the Independent Verification Reports, at para [153] of the Decision it was noted that the information in those documents is focussed on review of the calculation of the EPP and the FSA, being the performance metrics on which the RMB relies in its annual reports to support its conclusion that the single desk export scheme provides a quantifiable financial benefit to NSW growers. For reasons given in the Confidential Reasons at para [154] of the Decision, very significant weight was given to the public interests in favour of disclosure of the Independent Verification Reports. That finding was not disturbed on appeal. Those findings are confirmed.

(2) Personal factors of the application:

1. The personal factors of the application as defined in s 55(1) of the GIPA Act are: 1. Forbidden Foods' intention to make a submission to the next review of the single desk scheme, which it opposes, having made a submission to the 2016 review in which its position was that the current vesting arrangements are not in the best interests of the NSW rice industry, is a personal factor that adds weight to the public interest in favour of disclosure of promoting informed debate about that issue (see para [155] Decision); and 2. Forbidden Foods' wish to be able to purchase and export NSW grown rice in competition with SunRice if the single desk arrangements are discontinued, and its current competition with SunRice, are personal factors of the application which add weight to the public interest factors against disclosure based on the potential impact on SunRice's commercial interests, in cl 4(c) and (d) of the Table to s 14 of the GIPA Act (see para [170] Decision).
2. Those findings were not disturbed on appeal. On the reconsideration required on the remittal, the identification of those personal factors as factors to be taken into account as factors in favour of, and against, providing access to the disputed information respectively, as permitted by s 55 of the GIPA Act, is confirmed.

(3) Public interests against disclosure:

1. The reconsideration required in the remittal has identified information in the Reporting Letters and Independent Verification Reports that is either the same as or similar to the material on market share ordered to be redacted from the Reporting Letters. As concluded by the Appeal Panel, anomalous findings were made in the Decision for the weight attributed to the Redacted Information and the weight attributed to the same or similar information in the Reporting Letters and Independent Verification Reports.
2. Having reconsidered those findings in accordance with the directions on the remittal, and having reconsidered the evidence as to the sensitivity of particular types of information, it is apparent that there is no material difference between the Redacted Information as to market share and the disclosed information. Mr Morris was as concerned about disclosure of information relating to volumes and prices per tonne as he was about market share, and about the ability of others in the market to use price premium or other information to identify SunRice's volume of sales and market share in each region (see para [87] of the Decision). There is accordingly no basis on which a different weight should be attributed to the disclosed information.
3. There are two further matters to note. First, on this reconsideration of the information in each of the Reporting Letters and the Independent Verification Reports, it is apparent that some of the information, particularly the more general market overview material in the Reporting Letters, may not be as sensitive as the information in the Redacted Market Information or the information identified in paras [83]-[86], [95], and [97]-[100] above. However, if as a consequence less weight should be attributed to the public interest considerations against disclosure of that information, that would not affect the outcome of the balancing of public interests under s 13 of the GIPA below, and that issue is not considered further.
4. Secondly, while there were redactions ordered for information in the Reporting Letters identified in general terms to be SR's financial information, being information provided in Section 5 of each document under the heading "Financial Reporting, including:" in Documents 2 and 4, and "Financial Reporting" in Documents 6, 8 and 10, together with the Appendices in Documents 2 and 4, the last three pages of Document 6, and the three tables at the end of Document 8, the Decision did not consider in detail the basis on which that was ordered. That information is considered separately below.

(4) SunRice's Financial Information

1. The Appeal Panel noted at [210] that it was not asserted in the appeal that the Redacted Information relating to SunRice's financial information is contained elsewhere in the Reporting Letters or the Independent Verification Reports. The remittal orders did not in terms require further consideration of the redactions made to the Reporting Letters in relation to SunRice's financial information. However, since those orders require the Tribunal to apply s 13 of the GIPA Act, taking into account the conclusions reached in accordance with Order (9)(a), (b), (c), (d), (e), (f) and (g) together with the findings not disturbed on appeal, the issue of the financial information requires consideration.
2. The information as to SunRice's financial position requested annually by the RMB to SunRice as recorded in Documents 1, 3, 5,7 and 9 required detail as to bank covenants (quantum approved, calculations, demonstration of compliance), interest rate management (latest policy, material changes, and statement of compliance), currency management (policy, statement of compliance), capital raisings (supply of prospectus, targeted and achieved), and asset management (including any impending major capital expenditure) (para [127] Decision). The annual performance metrics specified in cl 2.3 of the SLA require SunRice to provide at 2.3.2 "Evidence that SunRice has the financial strength to purchase and market the NSW rice crop each year and act as the buyer of last resort for the NSW rice crop, including details of financial performance".
3. There was limited evidence in support of the submissions of the RMB and SunRice that disclosure of the financial information in the Reporting Letters could reasonably be expected to have the effects referred to in cl 1(d), (f) or (g) of the Table, or in cl 4(c) or (d). SunRice acknowledged in its written submissions of 19 July 2019 that some of that financial information would not necessarily have a competitive commercial value in the sense required by cl 4(d), however submitted that disclosure could reasonably be expected to prejudice SunRice's legitimate business, commercial or financial interests by way of its impact on SunRice's banking relationships and potentially, applicable interest rates.
4. Mr Morris' evidence (paras [53]-[57], [67]-[68] of his statement 16 July 2019) was directed at the information in the Reporting Letters relating to interest rate management and currency management, and bank covenants. Some of the information on interest rate management and currency management is derived from SunRice's annual reports, and some from its internal policies and procedures; he was of the opinion that if disclosed only the former would be provided. The information on bank covenants provides an indication of SunRice's "financial health" and banking relationships. Mr Morris' position was that disclosure could harm SunRice's commercial and financial interests, and in future responses SunRice would reduce the level of detail provided to the RMB and merely state that it had complied with its bank covenants, and would provide only information that is publicly available in SunRice's annual reports.

(5) Balancing the public interests:

1. The Tribunal concludes that on balance the public interest considerations against disclosure outweigh the general public interest considerations in favour of disclosure for the financial information contained in the Reporting Letters. Applying s 13 of the GIPA Act, there is an overriding public interest against disclosure of that information.
2. The public interest considerations against disclosure of the information in the Reporting Letters, other than the financial information considered above, do not outweigh the public interest considerations in favour of disclosure. Applying s 13 of the GIPA Act, there is not an overriding public interest against disclosure of that information.
3. The public interest considerations against disclosure of the information in the Independent Verification Reports do not outweigh the public interest considerations in favour of disclosure. Applying s 13 of the GIPA Act, there is not an overriding public interest against disclosure of that information.

Conclusion

1. There is a presumption in favour of disclosure unless there is an overriding public interest against disclosure, and Forbidden Foods has a right to be provided with access to the information unless there is an overriding public interest against disclosure of the information: GIPA Act, ss 5, 9.
2. The conclusion that there is no overriding public interest against disclosure of the information in the Reporting Letters other than the financial information, and that there is no overriding public interest against disclosure of the information in the Independent Verification Reports, means that Forbidden Foods is entitled to be given access to that information.
3. The orders made in the Decision varied the decision under review of 11 March 2019 by granting access in Order 1(a) to Documents 1, 3, 5, 7, 9, 23, 24 and 29, by consent. That order was affirmed by the Appeal Panel. Order 1(b) in the Decision granted access to Documents 25, 26 and 27. That part of Order 1(b) was affirmed by the Appeal Panel on 2 September 2020, the Appeal Panel noting that by consent on 10 July 2020, Order 1(b) granting access to Document 27 was affirmed.
4. The Appeal Panel set aside Order 1(b) in respect of Documents 11, 12, 13, 14 and 15 (the Independent Verification Reports) and Documents 2, 4, 6, 8 and 10 (the Reporting Letters), and remitted that part of the Decision for reconsideration.
5. The orders of the Tribunal on the remittal are: 1. The decision under review dated 11 March 2019 is varied as follows: 1. Within 28 days of these orders, Documents 11, 12, 13, 14 and 15 are to be provided to the applicant; 2. Within 28 days of these orders, Documents 2, 4, 6, 8 and 10 are to be provided to the applicant, with the following redactions: 1. Document 2: the information under the heading "5.Financial Reporting, including" at pp19-22 and the seven Appendices; 2. Document 4: the information under the heading "5.Financial Reporting, including" (two pages, not numbered), and the seven Appendices; 3. Document 6: the information under the heading "5.Financial Reporting" (pp 15-18), and the three Tables at pp 22-24; 4. Document 8: the information under the heading "5.Financial Reporting" (pp 15-18), and the three Tables at pp 21-23; and 5. Document 10: the information under the heading "5.Financial Reporting" (pp 14-17).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2020