Forbidden Foods Pty Ltd v Rice Marketing Board for the State of New South Wales - [2020] NSWCATAD 257 - NSWCATAD 2020 case summary — Zoe

NSWNSWCATAD

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

[2020] NSWCATAD 257

NCAT Administrative and Equal Opportunity|2020-10-21

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2020-10-21

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

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

[2]

Introduction

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).
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.
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.

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.

[3]

The access application

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).
Further background was provided in the Appeal Decision: Background to the disputed documents 139. In June 2007, the Board and SunRice entered into an agreement (the SEEL Agreement), which set out the terms of the export licence granted by the Board to SunRice. That Agreement gives the Board full and free access to SunRice's records that relate to, or are connected with, its performance as a SEEL holder. 140. As mentioned at [7] above, since 2006, the Board has reviewed annually SunRice's performance as a SEEL holder. The Board uses two primary "performance metrics" to assess SunRice's performance: the "export price premium" (EPP) and the "freight scale advantage" (FSA). In the Decision, at [14], the Tribunal set out the explanation given by the Board of those terms: (1)export price premium: "the amount of additional dollars a grower receives by virtue of there being a single export desk, calculated as the difference between the SunRice price and the weighted average local competitor's price"; (2)freight scale advantage: "the freight savings that SunRice can obtain when shipping rice overseas that would not be available to a grower or smaller entity". 141. In undertaking annual reviews of SunRice's performance as a SEEL holder, the Board requires SunRice to provide a range of information, including information relating to the international rice market and SunRice's market position within that market and the domestic market. 142. Since 2013, following a recommendation made by the NSW Minister of Primary Industries, the Board has engaged auditing firm, Grant Thornton, to "provide independent verification that the … calculations by SunRice of the export price premium and freight scale advantage resulting from the [SEEL] are correct". Under that engagement, Grant Thornton is required to review the methodology used by SunRice to calculate the EPP and FSA and to test the stated assumptions that underpin its calculations. 143. Each of the documents the subject of Order 1(b) (the disputed documents) relate to the Board's annual review of SunRice's performance for the years 2013 to 2017. They fall into three categories: (1)documents 2, 4, 6, 8 and 10: SunRice's responses to the Board's requests for information for the years 2013, 2014, 2015, 2016 and 2017 (the Reporting Letters); (2)documents 11, 12, 13, 14 and 15: reports prepared by and provided to the Board by Grant Thornton following its verification of the EPP and FSA reported by SunRice to the Board for the years 2013, 2014, 2015, 2016 and 2017 (the Independent Verification Reports); and (3)documents 25 and 26: correspondence between the Board and SunRice following a request by Grant Thornton for further information in relation to the 2015 Reporting Letters.
In addition to the SEEL Agreement referred to at [139] of the Appeal Decision, the terms of which are not public, there are two agreements relevant to the arrangements involving the RMB and SunRice for access to and confidentiality of information. Those are the Confidentiality Agreement between the RMB, SunRice and the NSW Department of Trade and Investment, signed in 2014, and a Service Level Agreement (SLA) between the RMB and SunRice, signed on 23 May 2019. Detail of those agreements is summarised at paras [16]-[21] of the Decision.

[4]

Legislative Framework

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).

[5]

The administrative review proceedings

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.
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.
Other documents in evidence and the written submissions provided to the Tribunal are identified at paras [35]-[40] of the Decision.
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. …

[9]

The Reporting Letters and the Independent Verification Reports

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.
At paragraphs [99], [113] and [119] of the Decision I concluded that the public interest considerations against disclosure in cl 1(d), (f) and (g) of the Table to s 14 of the GIPA Act apply to the Reporting Letters. At paragraphs [129]-[130] and [141] of the Decision I concluded that the public interest considerations in cl 4(c) and (d) of the Table to s 14 apply to the Reporting Letters.
The background to the preparation of the Independent Verification Reports was provided in Ms Chiswell's evidence (para [14] Decision). Since 2013, following recommendations from that year's review of the vesting arrangements, the RMB has engaged an auditing firm to provide independent verification of the two metrics used by the RMB, the EPP and the FSA. During the period 2013 - 2017 the verification was undertaken by Grant Thornton Australia Ltd (Grant Thornton). Ms Chiswell summarised the purpose of the Independent Verification Reports as being to provide a detailed commentary on SunRice's procedures in calculating the EPP and FSA measures, and analysis of reasons for variances for previous years, sensitivity analysis on foreign exchange rates, issues raised and recommendations for improvements. Her evidence was that the RMB relies on information in those reports to better understand that SunRice is providing the best possible returns for NSW growers (para [101] Decision). Each of the reports is marked "private and confidential" (para [100] Decision), and while there were meetings between SunRice and the reviewer, and there is correspondence confirming discussions between them before submission of the review to the RMB, Ms Chiswell's evidence was that SunRice was not provided with the final report (para [104] Decision).
At paras [105] and [113] of the Decision I concluded, based on the contractual relationship between the RMB and Grant Thornton, that I was not satisfied that the public interest considerations against disclosure in cl 1(d) and (f) applied to the Independent Verification Reports. At para [119] I concluded that the public interest consideration against disclosure in cl 1(g) did apply to those documents. At paras [135] and [141] I concluded that the public interest considerations against disclosure in cl 4(c) and (d) of the Table to s 14 apply to the information in the Independent Verification Reports.

[11]

(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:

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.
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.
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.
As noted by the Appeal Panel at para [165(5)], the RMB and SunRice relied in their written submissions on what was submitted to be a significant "commonality" of information in the Reporting Letters and the Independent Verification Reports. SunRice submitted that publication of the Independent Verification Reports would have the effect that SunRice would not provide to the RMB or consultant information of the kind stated in para [21] of Mr Morris' statement of 16 July 2019, which he described as extensive amounts of competitively sensitive and confidential information which is not re-published in the RMB's public annual reports or otherwise publicly available, and which SunRice provides to the RMB subject to and in reliance on the Confidentiality Agreement.
In its written submissions filed 19 July 2019 (at para [15]) SunRice's position was that while Mr Morris had provided evidence by reference to specific parts or categories of information, it would be difficult to separate out the information by reference to the different sources, being the subscription or proprietary sources, and financial, market and strategic information confidential to SunRice. That is particularly so in relation to information that comprises or is derived from SunRice's analysis, which often combines information from different sources.
NOT FOR PUBLICATION
The Confidential Reasons included the following observations about the content of the Independent Verification Reports:
NOT FOR PUBLICATION
NOT FOR PUBLICATION
The findings that the public interest considerations against disclosure in cl 1(d), (f) and (g) applied to the information in the Reporting Letters were not disturbed on appeal. Those findings were as follows: 1. The information provided by SunRice to the RMB in the Reporting Letters is "confidential information" (para [90] Decision), and if it were not provided the task of the RMB would be more difficult (para [91] Decision). Accordingly, the provision of the information facilitates the effective exercise of the RMB's functions (para [92] Decision). The information is used by the RMB for the purpose of enabling it to prepare its annual reports, which include a summary of the RMB's position that SunRice and the single desk arrangements provide substantial benefits to NSW rice growers; 2. In considering whether disclosure could reasonably be expected to prejudice the supply to the RMB of such information (cl 1(d)), the evidence of Ms Chiswell and Mr Morris was relevant. Ms Chiswell was of the view that disclosure of the information in the Reporting Letters would mean that SunRice would be less forthcoming in providing information and the level of cooperation would diminish; Mr Morris maintained a similar position in his evidence. However, Ms Chiswell conceded that if SunRice stopped providing information it would be less likely that the vesting arrangements would continue, and that SunRice would be unlikely to take steps which would make it less likely for those arrangements to continue (para [96] Decision). Mr Morris ultimately conceded that SunRice was required under the SEEL to provide information to the RMB, regardless of the outcome of the application (Transcript 28 August 2019, p 68); 3. While there were reservations as to the likelihood of a reduction in the detail and quality of information provided by SunRice to the RMB, having regard to the obligations imposed on SunRice under the SEEL and the SLA, and the interests of SunRice as the holder of a valuable licence to provide as persuasive a case as possible for continuation of the single desk arrangement, I was satisfied that there was at least a possibility of that, and that the public interest consideration against disclosure in cl 1(d) was established (para [99] Decision). For the same reasons, the public interest against disclosure in cl 1(f) was established (para [113] Decision) for the Reporting Letters. Disclosure would disclose information provided in confidence to the RMB, and the public interest consideration against disclosure in cl 1(g) applied (para [119] Decision).
Turning now to the question of whether the public interest considerations against disclosure in cl 1(d) or (f) of the Table apply to the information in the Independent Verification Reports. The finding that the information as provided by SunRice to the RMB was "confidential information" (para [104] of the Decision); and the finding (at [119]) that disclosure of the Independent Verification Reports would disclose information provided to the RMB in confidence, so that the public interest consideration against disclosure in cl 1(g) was established, were not disturbed on appeal. The finding (at [105]) that disclosure of the information in the Independent Verification Reports could not reasonably be expected to prejudice the supply of information by Grant Thornton to the RMB, which was required in accordance with the contractual arrangement between the RMB and Grant Thornton, was not disturbed.
In considering whether disclosure of the information in the Independent Verification Reports could reasonably be expected to prejudice the supply by SunRice to the RMB of confidential information that facilitates the effective exercise of the RMB's functions (cl 1(d)), or prejudice the effective exercise by the RMB of its function (cl 1(f)), the first matter to note relates to the sources of information in the Independent Verification Reports. The evidence of Mr Morris (at paras [19] and [20] of his statement of 16 July 2019) was that after SunRice's response had been provided to RMB in the Reporting Letters, SunRice also provided access to its EPP and FSA calculations directly to the consultant, to enable it to review and verify SunRice methodology, calculations and source information as required by the SEEL, and by cl 2.4.1 of the SLA. SunRice would also provide additional analysis in response to requests for clarification from the consultant, as reflected in Documents 23, 24, 25 and 26.
SunRice relied on Mr Morris' evidence that disclosure of certain parts of the information would significantly impact on SunRice's approach to providing information to the RMB or its consultant, and that while SunRice has obligations to report certain information to the RMB or its consultant, it has habitually provided more information than it is required to provide in a spirit of frankness and candour. Mr Morris' evidence was that disclosure would mean that SunRice would not provide to the RMB or its consultant information from subscription sources; detailed information about the rice market including price premium calculations and methodologies and SunRice's overview and assessment of specific market information and information about strategy; and specific kinds or details of financial information about SunRice and its operations (paras [42]-[57] statement of 16 July 2019); or detail of volume of tonnes exported and benefit per tonne and quantification of the FSA in each market (paras [59], [60] statement 16 July 2019). Withholding such information out of concern it could be made public would cause SunRice and the RMB to re-evaluate and negotiate the information SunRice provides to the RMB, and SunRice would only show the consultant the detailed information in person for inspection and not provide it in written form (para [43] statement of 16 July 2019).
The Tribunal accepts that the information in the Independent Verification Reports, provided by SunRice in the Reporting Letters and then to the consultant, or as provided direct to the consultant by SunRice, is confidential information, as that term is discussed in Raven v University of Sydney [2015] NSWCATAD 104 and Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19. The Tribunal accepts that the RMB depends on the independent verification process to provide the support for its position as reported in its annual reports that the single desk arrangements provide substantial benefits to NSW rice growers, in accordance with object (b), which is "to ensure the best possible returns from rice sold outside Australia based on the quality differentials or attributes of Australian grown rice".
The RMB is a small agency with limited resources, and Ms Chiswell's evidence was that the only way it can make that assessment is the information from SunRice via the consultant (Transcript 28 August 2019, p 38). The information is, accordingly, information that facilitates the effective exercise of the RMB's functions.
There are two factors that suggest that any prejudice to the supply of confidential information that facilitates the effective exercise of the RMB's functions, or prejudice to the effective exercise of the RMB's functions, is unlikely to be significant. First, as acknowledged in Mr Morris' evidence (see paras [97] and [98] of the Decision), SunRice is obliged, under the terms of the SEEL and under the SLA to provide information both to the RMB, and to the consultant. The SLA, annexed to Mr Morris' statement of 16 July 2019, is dated 23 May 2019, and covers the period 2019 to 2022. Mr Morris' evidence (at para [9] of his statement of 16 July 2019) was that this agreement documents the process of information exchange and reporting requirements between SunRice and the RMB and the independent consultant. While it post-dates the documents in issue, as an agreement governing the ongoing provision of information it is relevant to the question of the likely impact on supply of information to the RMB. Clause 2.2.3 of the SLA requires SunRice to provide an annual written report on the performance metrics as listed in cl 2.3, and cl 2.2.4 requires SunRice to provide access to the independent consultant engaged by the RMB to verify SunRice's annual methodology and calculation of the EPP and FSA. Clause 2.4.1 states that SunRice agrees to grant the independent consultant with access to records and staff annually in order the satisfactorily verify the methodology underpinning the EPP and FSA as required by the SEEL.
Secondly, it is in SunRice's interests as the holder of a valuable licence to provide as persuasive a case as possible for continuation of the single desk arrangements, which would encourage it to provide more information than contractually required. Ms Chiswell confirmed in oral evidence that if SunRice stopped providing information that would make it less likely that the vesting arrangements would continue, and that SunRice would be unlikely to take steps which would make it less likely for those arrangements to continue (see para [96] Decision).
While acknowledging reservations as to whether the impact is likely to be significant, the Tribunal is satisfied that there is at least a possibility, which can be regarded as more than a risk or chance of prejudice (see Transport for NSW v Searle [2018] NSWCATAP 93), that disclosure of the information in the Independent Verification Reports may lead SunRice to provide less detail or analysis in the information it provides to the RMB. The Tribunal is satisfied that the public interest consideration against disclosure in cl 1(d) of the Table is established. In the context of the RMB's dependence on the information supplied by SunRice, disclosure could reasonably be expected to prejudice the effective exercise of the RMB's functions, and cl 1(f) of the Table is established.

[12]

(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):

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).
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.
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.
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.

[13]

(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:

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.
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.
The conclusion that the public interest consideration against disclosure in cl 4(c) was established was as follows: 130. The single desk arrangements mean that SunRice has no domestic competitor in export of NSW grown rice. However, as SEEL holder, SunRice competes in the international rice market with other producers of medium grain rice, being primarily California based entities, which Mr Morris identifies as Archer Daniels Midland Company, Bunge and Farmers' Rice Cooperative; and with Wilmar International Ltd in Asia. Mr Morris states that the California entities compete with SunRice in the Middle East, the Pacific, and the US; and Wilmar competes in Asia and Papua New Guinea and other Pacific countries. Based on that evidence, the Tribunal is satisfied that the information in the Reporting Letters has competitive commercial value to SunRice, and that as a consequence the public interest against disclosure in cl 4(c) is established.
Paragraphs [132]-[134] of the Confidential Reasons considered the Independent Verification Reports, and on the basis that the information in those documents has competitive commercial value to SunRice, the public interest against disclosure in cl 4(c) was established: para [135] Decision.
The conclusion as to the public interest consideration against disclosure in cl 4(d) was as follows: 140. For the reasons above, the Tribunal is satisfied that the fact that SunRice has the sole right to export NSW grown rice and as a consequence has no competitors in the export of NSW grown rice does not mean that it has no competitors in marketing NSW grown rice on the international export market. The issue is whether disclosure of the information could reasonably be expected to prejudice, that is, cause detriment or disadvantage to, SunRice's legitimate commercial interests. 141. The Tribunal accepts that to the extent that the information could provide insights for competitors into SunRice's pricing, market position, and cost base, in various specific markets, as stated by Mr Morris, that could reasonably be expected to prejudice SunRice's ongoing commercial interests. The Tribunal is satisfied, having considered the Reporting Letters, the Independent Verification Reports and the 2015 correspondence, that those documents contain information that could be so described. The Tribunal is satisfied that the public interest against disclosure in cl 4(d) is established for the documents. The Tribunal does not so find for the information in document 27, for the reasons given in relation to cl 4(c).
A factor relevant to the weight to be attributed to the public interest considerations against disclosure in cl 4(c) and (d) is the historical nature of the information: 158….The Tribunal accepts that the effluxion of time does not of itself necessarily diminish the confidentiality of information or its competitive commercial value: Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet [2019] NSWCATAD 6 at [153]. In the circumstances of this case it is the volatility of the international rice market, and the factors that contribute to that volatility, and the shifts in SunRice's marketing strategy since the documents the subject of the application were brought into existence, that in the Tribunal's view reduce the weight to be put on the public interests against disclosure.
Mr Morris' evidence was that the information remains commercially sensitive and retains its commercial value to SunRice for at least 5 to 10 years, and that information covering multiple years would be particularly useful as it would enable comparisons with other sources of information to draw inferences and conclusions about margins, markets and strategies and even less recent information could provide insights as to future pricing strategies. The difference in opinion between Mr Morris and Mr Brown as to the volatility of the rice market was relevant to an assessment of the commercial sensitivity and commercial value to SunRice, discussed at paras [159]-[163] of the Decision. Mr Brown's evidence as to the volatility of the market, by reference to monthly fluctuations in price, and large fluctuations in production and in pricing on a per tonne basis, was consistent with external sources such as information in the RMB's annual reports and its submission to the 2016 Review of the single desk arrangements, and SunRice's identification of risk factors in the document prepared for the purposes of listing Ricegrowers Ltd on the ASX, discussed at paras [164]-[165] of the Decision. The conclusion at para [164] that Mr Brown's evidence as to the volatility of the rice market was to be preferred to that of Mr Morris, with the consequence that the commercial value of the information in the documents had diminished by the effluxion of time, was not set aside on appeal.
The overall conclusion as to the public interest considerations in cl 4(c) and (d) for the information in the Reporting Letters was stated at para [170]: 170. These factors lead the Tribunal to conclude that the commercial value of the information in the Reporting Letters and in the Independent Verification Reports has generally diminished since each of the documents was created, and that as a consequence the weight that can be given to the public interests against disclosure based on the competitive commercial value of the information or likely prejudice to SunRice's business or commercial interests is modest. Forbidden Foods' wish to be able to purchase and export NSW grown rice in competition with SunRice, 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).
Order 9(c) requires specification of the weight to be attributed to the public interest considerations against disclosure in cl 4(c) and (d) of the Table to s 14 in relation to the material on market share in specific markets, as identified in para [172] of the Decision, which was the subject of the redaction (the Redacted Market Information).
As discussed by Mr Morris in his evidence, the context for the Reporting Letters is what he described as an "expanded list format" in the letters requesting information (Documents 1, 3, 5, 7 and 9). While similar, the structure of the Reporting Letters, and the particular matters addressed in each section of those documents, differ. In terms of structure, 1. Documents 2 and 4 include Section 2 headed "Market Overview & Update", and Section 4 headed "Market Position"; and 2. Documents 6, 8 and 10 include Section 2 headed "Market Overview", and Section 3 headed "Market Overview & Position Update".
The breakdown of topics within each of these sections broadly follows the structure outlined by Mr Morris in his evidence, as summarised in [84] of the Decision (see [25] above). There are differences in the approach adopted, with Documents 2 and 4 adopting a similar approach, which is different to that adopted in Documents 6, 8 and 10.
The material on market share in specific markets is located in Section 4 in Documents 2 and 4, and Section 3 in Documents 6, 8 and 10.
NOT FOR PUBLICATION
NOT FOR PUBLICATION
As Mr Morris' evidence established, some of the information provided in the Reporting Letters is based on subscription information, and some is derived solely from SunRice's internal analysis and knowledge. At paragraph [52] of his statement of 16 July 2019 Mr Morris listed the information based on subscription information that he said would not be provided, or would be provided in a summary or abbreviated form, by reference to the information contained in Document 8. Some of the market share information is based solely on SunRice internal information (see para 52), while other similar information is based on subscription information (see para 52). Some of the market share information, such as the quota in WTO markets, is publicly available (para [47]). In oral evidence Mr Morris conceded, when taken to the SunRice Information Memorandum prepared for listing on the ASX, that some part of the market share information was public, for example the market share in the key Middle East markets. His oral evidence was that other participants in the market could calculate the size if they had access to their own sales and syndicated data to guide them; and some of the major competitors would have access to similar subscription services as used by SunRice (Transcript 28 August 2019, pp 58-59).
The commercially sensitive information in the Reporting Letters is not limited to the market share information. At paras [38]-[40] of his statement of 16 July 2019 Mr Morris expressed concern as to disclosure of the price premium information in the Reporting Letters, being the price per tonne, value of sales, and premiums obtained in each market, and that a competitor or third party could use such information to reverse engineer SunRice's volume of sales and market share in each region. Mr Morris stated that he would not provide a breakdown of SunRice's volumes, prices and market share on a region-by region basis (para [87] Decision). His evidence was that disclosure of information as to what distributors receive in each market would likely impact on SunRice's commercial negotiations with overseas customers.
The factors relevant in attributing weight to the public interest considerations against disclosure for the Redacted Market Information are the same as those relevant for the remainder of the material in the Reporting Letters: namely, that in the context of the volatility of the rice market, the length of time since the information was current, SunRice's change in marketing strategy, and the fact that some of the information is in the public domain, the commercial value of the information has generally diminished since each of the documents was created. As a consequence the weight that can be given to the public interests against disclosure of the information in the Redacted Market Information based on the competitive commercial value of the information or likely prejudice to SunRice's business or commercial interests is modest.
Forbidden Foods wishes to be able to purchase and export NSW grown rice in competition with SunRice, but cannot do so under the current single desk arrangement while SunRice holds the SEEL. Forbidden Foods currently competes with SunRice by importing international rice for distribution within Australia, and for export internationally. The finding that Forbidden Foods' wish to be able to purchase and export NSW grown rice in competition with SunRice, and its current competition with SunRice, are personal factors of the application which added 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 was not disturbed on appeal. Taking those personal factors into account, the weight to be given to the public interest considerations against disclosure of the market share information in the Reporting Letters is moderate.

[14]

(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:

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.
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.
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.
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.
The Appeal Panel concluded that there had been a failure to provide adequate reasons, and Ground 8A was established: 226. As is apparent from the structure of the reasons, the text at [172] of the Decision does not represent the entirety of the Tribunal's consideration of the question of what weight to attribute to the public interest considerations against disclosure in cl 4(c) and 4(d). Threads of the Tribunal's reasoning path can be found throughout the Decision, for example, in the Tribunal's consideration of: the nature and content of the disputed documents (see for example [83]-[88]), whether the nominated public interest considerations against disclosure apply to those documents (at [120]-[142]) and the weight to attribute to the identified considerations (at [158]-[170]). 227. Central to the ultimate decision made by the Tribunal to order that the Reporting Letters be disclosed in part was its decision to attribute moderate weight to the public interest considerations against disclosure in cl 4(c) and (d) as they relate to the Redacted Information. The Tribunal did not expressly address why it made a different finding - to attribute modest weight to those public interest considerations against disclosure - with respect to the same or similar material contained in other parts of the Reporting Letters and the Independent Verification Reports. 228. Assessed overall, the Tribunal's reasons not only met but exceeded the minimum standard (accepting that s 62(3) of the NCAT Act provides guidance in this regard). The Tribunal gave detailed, comprehensive, cogent and persuasive reasons for the facts found and conclusions reached. However, as stated above, the Tribunal failed to set out the reasoning path which led it to make apparently anomalous findings with respect to 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. This was a material issue. It may be that the Tribunal concluded that the disclosed information relating to market share in both sets of documents was already in the public domain (see for example, the Decision at [169]). Alternatively, the Tribunal may have considered that the Redacted Information and the disclosed information relating to market share were materially different. A further possibility is that the Tribunal mistakenly attributed modest weight to the latter or moderate weight to the former. Whatever the explanation, we are unable to discern the reasoning process which led the Tribunal to attribute different weight to the Redacted Information and the same or similar material it ordered be disclosed in the Reporting Letters and the Independent Verification Reports. 229. The Tribunal failed to provide adequate reasons. Ground 8A is established.
The reconsideration required in the remittal as ordered in Order 9(d)-(g) is first, to identify information in the Reporting Letters that is the same as or similar to the Redacted Market Information, and then attribute weight to the public interest considerations in cl 4(c) and (d) in respect of that information; and then to identify information in the Independent Verification Reports that is the same as or similar to the Redacted Market Information, and then attribute weight to the public interest considerations in cl 4(c) and (d) in respect of that information.
The first step is accordingly to identify the information in the Reporting Letters that is the same as or similar to the Redacted Market Information, using as a basis the Annexure to SunRice's submissions of 23 April 2020.
The Annexure to SunRice's submissions comments on each of Documents 2, 4, 6, 8 and 10: 1. Document 2: the redactions are expressed to include "the material in Sections 4…" Section 4 is titled "4. Market Position:" and commences at p 13 of the document. The Tribunal failed to redact similar information under the heading "2. Market Overview & Update:" commencing at p 3 of the document, which contained similar commercial market analysis of SunRice's markets and potential markets; 2. Document 4: the redactions are expressed to include "the material in Sections 4…". Section 4 is titled "4. Market Position:" and commences at [CB117]. The Tribunal failed to redact similar information under the heading "2. Market Overview & Update" commencing at [CB110] of the document, which contained similar commercial market analysis of SunRice's markets and potential markets; 3. Document 6: the redactions are expressed to include "the specified material in Section 3…". Section 3 is titled "3. Market Overview & Position Update:" commencing on p 4 of the document. The language used to describe this particular redaction of Document 6 refers to "specified" material, whereas the word "specified" was not used to describe the similar redactions in Documents 2 and 4, and the use of the word "specified" was not explained. The Tribunal failed to redact similar information under the heading "2. Market Overview" commencing at p 2 of the document, which contained similar commercial market analysis of SunRice's markets and potential markets; 4. Document 8: the redactions are expressed to include "the material in Section 3 under 'Market Share'…". Section 3, titled "Market Overview & Position Update" commences on p 3 of the document and contains a number of sub-headings titled "Market Share". The Tribunal failed to redact similar information under the heading "2. Market Overview" commencing at p 2 of the document, which contained similar commercial market analysis of SunRice's markets and potential markets; 5. Document 10: the redactions are expressed to include "the material in Section 3 under 'Market share'…". Section 3, titled "Market Overview & Position Update" commences on p 4 of the document and contains a number of sub-headings titled "Market Share". The Tribunal failed to redact similar information under the heading "2. Market Overview" commencing at p 3 of the document, which contained similar commercial market analysis of SunRice's markets and potential markets.
The Annexure notes: 1. that the language used to describe the redactions in Documents 2 and 4 is the same, and differs from the language used to describe similar redactions in relation to Documents 6, Document 8, and Document 10; 2. that inconsistent language was used to describe the redactions in relation to market share, market position or similar expressions; 3. that inconsistent language was used to describe the parts of the 5 Reporting Letters concerning "market share" when applying cl 4(c) and (d); 4. that the reasoning in relation to Documents 6, 8 and 10 refers to the material under the headings "Market share" whereas the reasoning in Documents 2 and 4 does not refer to such headings; 5. that each of Documents 2, 4, 6, 8 and 10 contain numerous sub-headings titled "Market share" or "Market Share" contained in section 4 of Document 2, section 4 of Document 4, section 3 of Document 6, section 3 of Document 8, and section 3 of Document 10.
The Tribunal accepts that the language used in para [172] of the Decision is not uniform, and that it requires clarification. The difference in language is in part attributable to the difference in structure between Documents 2 and 4 on the one hand and Documents 6, 8 and 10 on the other. Subparagraphs (1), (2), (3), (4) and (5) of para [172] attribute moderate weight to the public interest considerations against disclosure under cl 4(c) and (d) for "the material on market share in specific markets in Section 4" (for Documents 2 and 4) and "the material on market share in specific markets in Section 3 under the headings 'Market share'" (for Documents 6, 8, and 10). That conclusion takes into account the personal factors relevant to the application, as permitted by s 55(3) of the GIPA Act. That was the context in which the word "specified" was used later in sub-paragraph (3) in relation to Document 6. The Tribunal accepts that the statement in the final sentence in each subparagraph as to the material to be redacted should have identified more clearly the information in each document to which moderate weight for the public interest considerations against disclosure was attributed, and thus the distinction between the material on market share to be redacted, and the other information in the Reporting Letters.
Turning to consider whether any of that other information is the same as or similar to the Redacted Market Information, the Tribunal makes the following observations based on the content of each of the documents.
NOT FOR PUBLICATION
NOT FOR PUBLICATION
NOT FOR PUBLICATION
NOT FOR PUBLICATION
NOT FOR PUBLICATION
NOT FOR PUBLICATION
The Reporting Letters contain information responsive to the requests by the RMB for information relevant to SunRice's operations, which can be generally described in the terms used in the Annexure to SunRice's submissions as "similar commercial market analysis of SunRice's markets and potential markets". Information as to SunRice's market share in its export markets is provided under the heading "Market Share" which appears as a sub-heading in Section 4 in Documents 2 and 4 and Section 3 in Documents 6, 8 and 10, and as identified in paras [83]-[85] above. Similar information is provided elsewhere in the Reporting Letters as explained in para [86].

[15]

(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):

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.
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.
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.
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.
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.

[18]

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:

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.
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.
Turning now to the steps required under s 13 of the GIPA Act:

[19]

(1) Public interest considerations in favour of disclosure:

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.
Those findings were not disturbed on appeal, and are confirmed.
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.

[21]

(3) Public interests against disclosure:

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.
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.
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.
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.
The conclusions as to the public interest considerations against disclosure of the information in each of Documents 2, 4, 6, 8 and 10, other than the financial information identified in para [172] of the Decision, are as follows: 1. There is a public interest against disclosure of the information in the Reporting Letters on the grounds that release of that information could reasonably be expected to have the effects stated in cll 1(d), (f) and (g) of the Table to s 14 of the GIPA Act; 2. The weight to be attributed to those considerations is modest; 3. There is a public interest against disclosure of the information in the Reporting Letters on the grounds that release of that information could reasonably be expected to have the effects stated in cll 4(c) and (d) of the Table to s 14 of the GIPA Act; 4. The personal factors of the application being Forbidden Foods' current, and foreshadowed future, competition with SunRice, are relevant to consideration of whether disclosure could reasonably be expected to have those effects; 5. Taking those personal factors into account, moderate weight is attributed to the public interest considerations against disclosure in cl 4 (c) and (d) of the Table to s 14 of the GIPA Act.
The conclusions as to the public interest considerations against disclosure of the information in each of Documents 11, 12, 13, 14 and 15 are: 1. There is a public interest against disclosure of the information in the Independent Verification Reports on the grounds that release of that information could reasonably be expected to have the effects stated in cl 1(d), (f) and (g) of the Table to s 14 of the GIPA Act; 2. The weight to be attributed to those considerations is modest; 3. There is a public interest against disclosure of the information in the Independent Verification Reports on the grounds that release of that information could reasonably be expected to have the effects stated in cl 4(c) and (d) of the Table to s 14 of the GIPA Act; 4. The personal factors of the application being Forbidden Foods' current, and foreshadowed future, competition with SunRice, are relevant to consideration of whether disclosure could reasonably be expected to have those effects; 5. Taking those personal factors into account, moderate weight is attributed to the public interest considerations against disclosure in cl 4(c) and (d) of the Table to s 14 of the GIPA Act.

[22]

(4) SunRice's Financial Information

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.
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".
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.
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.
The Tribunal accepts that as is the case with the information in the Reporting Letters generally, the information as to SunRice's financial position is provided to the RMB on a confidential basis, and assists the RMB in its evaluation of the performance of SunRice as holder of the SEEL in achieving object (b) and as part of its reporting obligations.
It is possible that disclosure of the financial information could reasonably be expected to reduce the level of detail of information provided to the RMB and thus impact on the effective exercise of the RMB's functions. On that basis the public interest considerations against disclosure in cl 1(d), (f) and (g) apply. However, the evidence does not support a finding as to how significant any reduction might be, having regard to the obligations imposed on SunRice under the SEEL and the SLA, and SunRice's interest in providing sufficient information to justify continuation of the valuable rights conferred under the SEEL. While Mr Morris expressed concern that disclosure would inhibit future provision of information, he was not aware of what information might otherwise be published by SunRice as part of its reporting obligations as a publicly listed company, commenting in oral evidence that he is not part of the teams dealing with ASX listings (Transcript 28 August 2019, p 58). The evidence did not establish the likelihood that some of that information is publicly available through Sun Rice's reporting obligations as a publicly listed company, or if not, its continued sensitivity over time. Having regard to those factors, the weight to be attributed to the public interest considerations against disclosure in cl 1(d), (f) and (g) is modest.
Having considered the content of the documents, the Tribunal accepts that information as to SunRice's financial position to the level of detail requested in the annual letters is information of competitive commercial value to SunRice, and that disclosure could impact on SunRice's commercial or financial interests as explained by Mr Morris. The evidence did not explain the extent to which disclosure of that information could reasonably be expected to have the effects referred to in cl 4(c) and (d). The Tribunal gave modest weight in the Decision to the public interest considerations in cl 4(c) and (d) applicable to that information, and, taking into account the personal factors relevant to the application, namely Forbidden Foods' current and possible future competition with SunRice, gave moderate weight to those public interest considerations against disclosure. That conclusion was not disturbed on appeal. While the matter is finely balanced, that finding is confirmed.
Information as to SunRice's financial position is no doubt important for the RMB to satisfy itself that the holder of the SEEL is in a position to carry out its obligations under the SEEL. However, the public interests in favour of disclosure of the information in the Reporting Letters more generally as identified above at para [108] are less directly applicable to that information. The Tribunal is satisfied that the public interest in favour of disclosure of the financial information is that in s 12(1) of the GIPA Act, which provides that there is a general public interest in favour of the disclosure of government information. Given the historical nature of the information, and the likelihood that some is already in the public domain, the Tribunal attributes modest weight to that consideration.

[24]

Conclusion

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.
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.
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.
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.
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).

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

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)