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

[2020] NSWCATAD 18

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18
Hearing dates:	28 August, 13, 20 September 2019
Date of orders:	16 January 2020
Decision date:	16 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Pearson, Principal Member
Decision:	(1)   The decision under review dated 11 March 2019 is varied as follows: (a)   By consent, the applicant is granted access to the following information: (i)   Document 1: Letter from RMB to SunRice 19 August 2013; (ii)   Document 3: Letter from RMB to SunRice 31 July 2014; (iii)   Document 5: Letter from RMB to SunRice 31 July 2015; (iv)   Document 7: Letter from RMB to SunRice 7 July 2016 (without attachment); (v)   Document 9: Letter from RMB to SunRice 10 July 2017; (vi)   Document 23: Letter from RMB to SunRice 10 September 2014; (vii)   Document 24: Letter from SunRice to RMB 2 October 2014; (viii)   Document 29: 2016 Submission to Review of Rice Vesting (subject to redactions); and (b)   Within 28 days of the date of these orders, Documents 2, 4, 6, 8,10, 11,12, 13, 14, 15, 25, 26, and 27 are to be provided to the applicant, with redactions made in accordance with the reasons in paragraph [172]; and (2)   The decision under review is otherwise affirmed.
Catchwords:	GOVERNMENT INFORMATION – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure
Legislation Cited:	Government Information (Public Access) Act 2009 Rice Marketing Act 1983
Cases Cited:	Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Bourke v Roads and Maritime Services [2012] NSWADT 272 Bright v Eurobodalla Shire Council [2018] NSWCATAD 287 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Destination NSW V Taylor [2019] NSWCATAP 123 Lock the Gate Alliance v Department of Planning and Environment & Department of Premier and Cabinet [2019] NSWCATAD 6 McKinnon v Blacktown City Council [2012] NSWADT 44 Meriton Services Pty Ltd v UrbanGrowth NSW [2017] NSWCATAD 71 Neary v State Rail Authority [1999] NSWADT 107 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Raven v University of Sydney [2015] NSWCATAD 104 Selby v Commissioner of Police, NSW Police Force [2013] NSWADT 61 Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5 Sitel and Employment Advocate [2005] AATA 617 Taylor v Office of Destination NSW [2018] NSWCATAD 195 Transport NSW v Searle [2018] NSWCATAP 93
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Forbidden Foods Pty Ltd (Applicant) Rice Marketing Board of New South Wales (Respondent) Ricegrowers Ltd t/as SunRice (First Intervenor) Information and Privacy Commissioner (Second Intervenor)
Representation:	Counsel: D Birch (Applicant) B Tronson (Intervenor)   Solicitors: Clarendon Lawyers (Applicant) Crown Solicitor (Respondent) King & Wood Mallesons (First Intervenor) C Emery, Information Commissioner (Second Intervenor)
File Number(s):	2019/00140562
Publication restriction:	Pursuant to s 64 Civil and Administrative Tribunal Act 2013,(1)Disclosure of:(a)the material filed by the respondent on a confidential basis (exhibits Confidential R1 and Confidential R2);(b)the evidence and submissions given in private and the record of that part of the proceedings conducted in private on 23 August 2019 (subject to (2) below) and 13 September 2019; and(c)those paragraphs of these reasons identified as [Not for publication] is prohibited.That material is not to be released to either the applicant or the public;(2) The submissions given in private and the record of that part of the proceedings conducted in private on 23 August 2019 may be disclosed to the intervenor Ricegrowers Ltd t/as SunRice.

REASONS FOR DECISION

1. The applicant Forbidden Foods Pty Ltd (Forbidden Foods) has applied for administrative review of a decision of the respondent Rice Marketing Board of New South Wales (the RMB) in response to an application for access to information under the Government Information (Public Access) Act 2009 (the GIPA Act).

2. Ricegrowers Ltd t/as SunRice (SunRice) has exercised its right under s 104(3) of the GIPA Act to appear and be heard in the administrative review. The Information Commissioner has exercised the right conferred by s 104(1) of the GIPA Act to appear and be heard.

Rice marketing in NSW

3. The following background is derived from the affidavit of Carolyn Chiswell, Secretary of the RMB (exhibit R1), the witness statement of William Morris, Agribusiness Commercial Manager of SunRice (ex I1), the summary provided in the RMB’s submissions of 5 July 2019, and the NSW Department of Primary Industries Review of Rice Vesting Proclamation (December 2016) which is an annexure to the affidavit of Marcus Brown, Managing Director of Forbidden Foods (ex A1).

4. Rice is not a standardised commodity, and there are a number of different rice varieties produced, and consumer preferences for specific types of rice. Production of different varieties of rice is largely determined by geography, factors being soil type and climate. Rice exports are dominated by five countries accounting for around 80 percent of trade (India, Thailand, Vietnam, Pakistan and the United States), which mainly produce long grain varieties of rice.

5. The vast majority of rice produced in Australia, approximately 99 percent, is produced in NSW. The majority of rice grown in NSW is medium grain varieties, with one crop per year. The volume of NSW rice produced is highly variable, principally dependent on the availability of water; the 2019 crop was roughly 90% less than that in 2018. Only a few countries export medium grain rice, and in 2016 NSW’s share of global medium rice exports was reported to be 25 percent. California is a large exporter of medium grain rice.

6. The RMB is a commodity marketing board, formed in 1928. During the 1950s and 1960s the RMB was responsible for receiving and storing rice, arranging finance and payment to rice growers for their rice, the sale of rice to millers, price setting in overseas markets, and distributing profits to growers. The domestic rice market was deregulated in 2006. The RMB sold its assets, primarily rice storage sheds, to Riviana Australia Pty Ltd, a subsidiary of SunRice. SunRice is the trading name of Ricegrowers Limited, formerly Ricegrowers Co-operative Limited.

7. Section 11 of the Rice Marketing Act 1983 provides for the constitution of the RMB. The RMB has seven members, four appointed by the Minister for Primary Industries and three elected by rice growers. The Chair of the RMB must be a nominated member: cl 8 Sch 6.

8. The RMB has 1.2 employees, currently Ms Chiswell, Secretary from July 2015, and one part-time administrative officer.

9. The objects of the RMB as set out in the terms of a proclamation published in the New South Wales Government Gazette on 22 May 2009 are (a) to encourage the development of a competitive domestic market for rice; (b) to ensure the best possible returns from rice sold outside Australia based on the quality differentials or attributes of Australian grown rice; and (c) to liaise with and represent the interest of all NSW rice growers in relation to the RMB’s function and objects.

10. Section 56 of the Rice Marketing Act 1983 confers power to vest all NSW grown rice in the RMB, by proclamation of the Governor. The most recent rice vesting proclamation was 23 June 2017, and pursuant to the terms of the proclamation all rice coming into existence between 23 June 2017 and 30 June 2022 is vested in, and the property of, the RMB.

11. Section 51 of the Rice Marketing Act confers on the RMB the power to appoint authorised buyers of rice, who may purchase, on their own account, rice from NSW rice growers. In relation to the export market, s 51A(2) of the Rice Marketing Act provides that the conditions of appointment of an authorised buyer must include a condition prohibiting, except with the board’s written approval, any sale or supply to persons outside Australia. Under s51A(2A), an approval to sell rice for export may be granted on a sole and exclusive basis. The selling of NSW rice outside Australia occurs through the grant by the RMB of a sole and exclusive export licence (SEEL), which was first granted to SunRice in 2006, renewed in 2011, 2015 and 2016, and most recently renewed in 2017 for five years.

The SEEL

12. SunRice holds the SEEL. The Sole Exclusive Export Agreement dated 28 June 2007 (the SEEL Agreement) sets out the parties’ obligations under the SEEL. The SEEL and the SEEL Agreement are not public documents. General information about the SEEL is published on the websites of the RMB and SunRice and in their respective annual reports.

13. Ms Chiswell’s affidavit (ex R1) summarises relevant provisions of the SEEL agreement between the RMB and SunRice. Ms Chiswell states that the current SEEL agreement has been in place since 2006 and is currently being reviewed by the RMB. Its terms provide for it to be terminated by either party with five years’ notice; or by either party with immediate effect in circumstances provided in the SEEL agreement which include if vesting is not renewed, for a material breach, or if the SEEL holder ceases to be an authorised buyer. The terms of the SEEL provide that an elected member of the RMB who meets the requirements of SunRice’s constitution, that is, holds an “A” Class share and is a rice grower, is entitled to SunRice board membership.

14. Ms Chiswell summarised the provisions for monitoring and review of the SEEL holder, and explained the two primary performance metrics used, being the “export price premium” (EPP) and “freight scale advantage” (FSA):

29.   The terms of the SEEL provide that the RMB has full and free access to the records of the SEEL holder that relate to, or are connected with, its performance as the SEEL holder.

30.   Each year the RMB conducts an annual review of the performance of the SEEL holder. The purpose of this review is to assess the suitability of the current holder of the SEEL, with the RMB’s views then being reported to rice growers and to the government.

31.   In order to undertake its annual review, it has been the practice of the RMB to request the provision of detailed information from the holder of the SEEL following the conclusion of each financial year. The information requested includes information relating to the international rice market, information relating to the holder’s market position, and financial information. In addition, the RMB has sought information in relation to performance metrics, including the “export price premium” and “freight scale advantage”. …

32.   The “export price premium” is 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. It is a metric that enables a dollar value to be placed on the benefits of the vesting scheme; that is, it accounts for the benefit to a NSW rice grower that arises from there being a single exporter of rice. The export price premium is the primary tool by which the RMB can assess the extent to which object (b) is being met.

33.   ”Freight scale advantage” refers to the freight savings that SunRice can obtain when shipping rice overseas that would not be available to a grower or smaller entity. It is similar to the concept of economies of scale.

34.   The RMB obtains independent verification of the export price premium and freight scale advantage reported by the SEEL holder by an independent auditor with expertise in international commodity market analysis. For the period of 2013-2017, the RMB engaged Grant Thornton to undertake the verification.

35.   The independent verification process was developed following a letter the RMB received from the Minister of Primary Industries, dated 16 January 2013. In that letter, the Minister confirmed the recommendations of the 2013 vesting review, and encouraged the RMB to develop performance metrics to better enable the RMB, and government, to confirm that the export price premium was being achieved.

15. The information the subject of the access application is information provided by SunRice to the RMB, and information obtained by the RMB through the independent verification by the independent auditor, in the context of the annual review undertaken by the RMB of the performance of SunRice as the SEEL holder.

Service Level Agreement and Confidentiality Agreement

16. In addition to the SEEL Agreement, there are two other agreements between the RMB and SunRice relevant to the issues in this administrative review. In 2014 the RMB, SunRice and the NSW Department of Trade and Investment, Regional Infrastructure and Services (referred to in the Agreement as “NSW”), signed a confidentiality agreement (Confidentiality Agreement). On 23 May 2019 the RMB and SunRice entered into a Service Level Agreement (the SLA) which details SunRice’s reporting requirements, the processes for measuring performance under the SEEL, and the roles and responsibilities of the RMB and SunRice in relation to the SEEL. Both those documents are in evidence, as Annexures WM2 and WM1 respectively to the witness statement by Mr Morris (ex I1).

17. The Confidentiality Agreement defines “Confidential Information” in the following terms:

Confidential Information means all information, in any form or media, relating to the business, assets or affairs, including, without limitation, trade secrets, know-how, processes, techniques, source and object codes, software, computer records, business and marketing plans and projections, financial information, details of agreements and arrangements with third parties, customer information and lists, designs, plans drawings and models of a Party, all information created by the Receiving Party derived or produced partly or wholly from the Confidential Information and the existence of this Agreement and discussions between the Parties relating to the Specified Purpose but excluding information referred to in clause 2.3.

18. Clause 2.3 excludes information that was in the public domain when it was given to the Receiving Party, or that becomes part of the public domain other than in breach of the agreement, or that was in the Receiving Party’s possession when it was given to that party and not otherwise acquired from the Disclosing Party, or was lawfully received from another person having an unrestricted legal right to disclose that information without requiring the maintenance of confidentiality.

19. Clause 3 Obligations of Confidentiality includes the following provisions:

3.1 Acknowledgement of Confidentiality

The Receiving Party acknowledges that the Disclosing Party considers the Confidential Information of the Disclosing Party to be confidential and proprietary.

3.2 Obligations of Confidentiality

Subject to clause 3.4, a Receiving Party must not:

(a)   disclose, directly or indirectly, any Confidential Information of the Disclosing Party to any person without the prior written approval of the Disclosing Party for the particular disclosure, other than to its Representatives requiring the information for the Specified Purpose (upon those persons undertaking to the Receiving Party to keep that information strictly confidential); or

(b)   and must procure that its Representatives do not, use or reproduce in any way, any Confidential Information of the Disclosing Party otherwise than for the Specified Purpose.

3.3 Government Information (Public Access) and Freedom of Information requests

If NSW receives a Government Information (Public Access) or Freedom of Information requests for the Confidential Information of either SunRice or RMB, NSW agrees to consult with SunRice and RMB in respect of that application, and SunRice and/or RMB will have a right to apply for a review of NSW’s decision before that Confidential Information is disclosed.

20. Clause 3.4 provides that the obligations in cl 3.2 do not apply where a Receiving Party “is required by law to disclose” any Confidential Information, and discloses only that information which it is legally required to disclose, or disclosure required to comply with any applicable law, requirement or request of a regulatory body including stock exchange or Government Agency, a term which is defined to mean “any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity”.

21. The SLA “documents the processes, information exchange and reporting requirements expected between the RMB and SunRice to ensure the conditions of the SEEL are met”. The roles and responsibilities of SunRice as stated in cl 2.2 include provision of an annual report on the performance metrics listed in cl 2.3 (cl 2.2.3), and provide access for an independent consultant engaged by RMB to verify SunRice’s annual methodology and calculation of the export price premium and freight scale advantage. The annual performance metrics include (cl 2.3.4) quantification of the export price premium and freight scale advantage achieved for the immediately prior financial year and explanation of the methodology used to calculate it. The term of the SLA is from the date of the Agreement to the end of the current term of the SEEL (cl 3.1).

The access application

22. Forbidden Foods is a Victorian based premium specialty rice grower. On 1 March 2018 Forbidden Foods applied for access to documents held by the RMB. The scope of the application was subsequently narrowed, so that as at 4 April 2018 it sought:

1. Documents held by the Board in relation to any decisions or considerations taken by the Board between 1 January 2013 and 28 February 2018 (Relevant Period) consisting of:

1. All agendas of meetings of the Board; and

2. Any documents relating to the Board’s decision or decisions to grant the Sole Exclusive Export Licence, or any other similar export exclusivity right to export rice grown in New South Wales (the Exclusive Export Rights), granted to Ricegrowers Limited t/as SunRice (SunRice).

2. Without limiting paragraph (a):

1. All correspondence during the relevant period between the Board and SunRice in relation to the decision or decisions to grant the Exclusive Export Rights to SunRice;

2. All agendas, minutes and papers or other documents relating to discussions at meetings of the Board during the relevant period concerning the decision or decisions to grant the Exclusive Export Rights to SunRice;

3. All documents held by the Board concerning internal and external reviews during the relevant period of the decision or decisions to grant the Exclusive Export Rights to SunRice regardless of whether those reviews took place before or after the decision or decisions were made; and

4. All correspondence during the relevant period between the Board and third parties concerning requests by third parties for the right to export rice grown in New South Wales other than through SunRice.

23. On 18 May 2018 the RMB decided to refuse access to certain documents on public interest grounds. Forbidden Foods applied to the Information Commissioner (IC) for external review. The IC reported on 12 September 2018 that the decision was not justified and recommended that the RMB make a new decision. The RMB reconsidered its decision and determined that no further information would be released. On 11 January 2019 the IC wrote to the RMB informing it that the first and second decisions had not been made in accordance with the GIPA Act as they were made by the RMB collectively and not by a delegate, and on 26 February 2019 recommended that the RMB make a new decision.

24. On 11 March 2019 Ms Chiswell as delegate of the principal officer of the RMB made a new decision. Thirty documents were identified as containing information falling within the scope of the access application. The RMB released eight documents in their entirety; released one document with the personal information of an individual redacted; and withheld in their entirety 21 documents.

23. Forbidden Foods Pty Ltd applied to the Tribunal for administrative review of the decision of the RMB to refuse access to the 21 documents on 6 May 2019.

24. In its application for review Forbidden Foods stated that in its view the RMB had erred in applying the public interest test in reaching its decision. The questions of whether rice grown in NSW should be vested in the RMB, and whether the RMB should grant a monopoly on the export of NSW rice to a privately held commercial enterprise with which the RMB has close associations, are questions of great public importance. Those matters are the subject of ongoing public debate which will likely include a further inquiry conducted by the Department of Primary Industries (DPI) before 2022 in the context of whether the vesting provisions and export arrangements should be extended beyond their current expiry. Given that SunRice enjoys a legislative monopoly it is in the public interest that there be a transparency concerning the RMB’s decision to grant SunRice that monopoly and SunRice’s performance as an exporter, so as to provide an opportunity to fully participate in debate concerning the merits of the rice vesting regime and the RMB’s decision in relation to that regime.

The decision under review

27. The decision of 11 March 2019 listed 30 documents in a Schedule, releasing 8 documents, and one document with redactions, and refusing access to 21 documents. The documents were categorised in three categories: Category 1 being SunRice’s annual report to the RMB on its performance as SEEL holder; Category 2 the annual reviews by the external consultant of the calculations used by SunRice to support its claims relating to the financial benefits of the SEEL; and Category 3 the RMB’s annual reports to rice growers. The decision noted that SunRice had been consulted as required by s 54 of the GIPA Act, and had objected to disclosure of information about its prices, costs, commercial strategies and threats.

28. The decision identified as public interest considerations in favour of disclosure:

1. Disclosure of information relating to the decision to grant exclusive export rights could reasonably be expected to increase transparency of the RMB’s decision making processes and accountability, through assisting the public to understand how and why SunRice was granted the SEEL;

2. Disclosure of information concerning requests by third parties other than SunRice for the right to export rice grown in NSW would assist NSW rice growers with information on who else might want to export their rice, promoting a competitive market for rice;

3. Disclosure of information on the reasons for continuing the exclusive export arrangements for rice may promote open discussion of public affairs, and the public may benefit from understanding the reasons for the continuation of a monopoly for NSW rice exports; and

4. Disclosure of information relating to the decision making process in granting the SEEL may assist the general public in understanding that the RMB acts in a fair and equitable way in granting the SEEL.

29. The decision identified as personal factors of the application the applicant’s motives for making the access application, being:

1. Possible commercial competition between Forbidden Foods and SunRice in international rice markets; and

2. Possible motivation being to increase transparency of the decision making process to the general public rather than to take commercial advantage.

30. The possible motive of domestic competition, and the possible motive of applying to the RMB for the exclusive export rights for NSW rice, were not taken into consideration.

31. The decision identified the following public interest considerations against disclosure as specified in the Table to s 14 of the GIPA Act:

1. Clause 1(g): disclosure of the information could reasonably be expected to have the effect of founding an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence;

2. Clause 1(h): disclosure of the information could reasonably be expected to have the effect of prejudicing the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed);

3. Clause 4(c): disclosure of the information could reasonably be expected to have the effect of diminishing the competitive commercial value of any information to any person;

4. Clause 4(d): disclosure of the information could reasonably be expected to have the effect of prejudicing any person’s legitimate business, commercial, professional or financial interests.

32. The decision considered each of the 30 documents, balancing the public interests in favour of and those against disclosure, and the personal factors. Documents in Categories 1 and 2 were withheld. Category 3 documents, being the RMB’s Annual Reports to rice growers, were available on the RMB website. Access was provided to documents 21, 22, 28 (with redaction of personal information of a rice grower), and document 30, being the agendas of RMB meetings from 2013-2018. Access to documents 23, 25, 27 and 29 was refused, on the ground that there was an overriding public interest against disclosure.

33. In the period that the matter has been before the Tribunal the RMB has formed the view that additional documents should be released. The RMB remains of the view that there is an overriding public interest against disclosure of the following documents:

1. Documents 2, 4, 6, 8 and 10: letters sent by SunRice to the RMB providing detailed information about its market position and financial performance for the period 2013-2017 (the Reporting Letters);

2. Documents 11-16: reports from a consultant Grant Thornton Australia Ltd (Grant Thornton), engaged by the RMB to verify information provided by SunRice (the Independent Verification Reports);

3. Documents 25-26: correspondence from October 2015 between RMB and SunRice regarding the provision of additional information by SunRice (October 2015 Correspondence); and

4. Document 27: letter from the RMB to Grant Thornton dated 14 August 2017.

34. The position of the RMB as at the hearing as to which documents should be withheld is recorded in the following Schedule of documents remaining in dispute:

No.	Document title	Date	Original Decision	Current position
1	Letter from RMB to SunRice	19 August 2013	Withheld	Released
2	Reporting letter from SunRice to RMB	27 September 2013	Withheld	Withheld
3	Letter from RMB to SunRice	31 July 2014	Withheld	Released
4	Reporting letter from SunRice to RMB	5 September 2014	Withheld	Withheld
5	Letter from RMB to SunRice	31 July 2015	Withheld	Released
6	Reporting letter from SunRice to RMB	28 September 2015	Withheld	Withheld
7	Letter from RMB to SunRice and attachment	7 July 2016	Withheld	Released – attachment withheld
8	Reporting letter from SunRice to RMB	5 September 2016	Withheld	Withheld
9	Letter from RMB to SunRice	10 July 2017	Withheld	Released
10	Reporting letter from SunRice to RMB	19 September 2017	Withheld	Withheld
11	Consultant’s report	25 September 2013	Withheld	Withheld
12	Consultant’s report	1 August 2014	Withheld	Withheld
13	Consultant’s report	17 August 2015	Withheld	Withheld
14	Consultant’s report	7 September 2016	Withheld	Withheld
15	Consultant’s report	6 December 2017	Withheld	Withheld
16	Annual Report to Rice Growers (2013)	October 2013	Released
17	Annual Report to Rice Growers (2014)	October 2014	Released
18	Annual Report to Rice Growers (2015)	October 2015	Released
19	Annual Report to Rice Growers (2016)	October 2016	Released
20	Annual Report to Rice Growers (2017)	October 2017	Released
21	Scope of consultant’s engagement	Undated	Released
22	Confirmation of consultant’s appointment	28 March 2013	Released
23	Letter from RMB to SunRice	10 September 2014	Withheld	Released
24	Letter from RMB to SunRice	2 October 2014	Withheld	Released
25	Letter from RMB to SunRice	1 October 2015	Withheld	Withheld
26	Letter from SunRice to RMB	22 October 2015	Withheld	Withheld
27	Letter from RMB to consultant	14 August 2017	Withheld	Withheld
28	Letter from RMB to Rice Grower	31 May 2013	Partially withheld
29	Submission to review of rice vesting	14 September 2016	Withheld	Released in redacted form
30	Agendas of meetings (2013-2018)	2013-2018	Released

The Tribunal proceedings

35. The RMB relied on:

1. an affidavit sworn by Carolyn Chiswell on 4 July 2019 (ex R1);

2. Independent Review of Governance Arrangements 2017: The Rice Marketing Board for the State of NSW – Report prepared for DPI, dated 22 March 2018 (ex R2);

3. a letter from Grant Thornton to the RMB dated 24 September 2018 (ex R3); and

4. written submissions dated 5 July 2019 and reply submissions dated 23 August 2019.

36. The applicant relied on:

1. an affidavit of Marcus Kovac Brown affirmed on 13 August 2019 (ex A1);

2. a Bundle of documents for cross examination of Carolyn Chiswell (ex A2);

3. a Bundle of documents for cross examination of William Morris (ex A3); and

4. written submissions dated 13 August 2019.

37. SunRice relied on:

1. A witness statement by William Charles Morris dated 16 July 2019 (ex I1);

2. A witness statement by William Charles Morris dated 23 August 2019 (ex I2); and

3. Written submissions dated 17 July 2019 and reply submissions dated 23 August 2019.

38. Ms Chiswell, Mr Brown and Mr Morris gave oral evidence. An agreed transcript of the cross examination of Ms Chiswell and Mr Morris on 28 August 2019 was provided.

39. The Information Commissioner provided written submissions filed 19 August 2019.

40. The Tribunal was provided with Documents 1-30 on a confidential basis (ex Confidential R1 and Confidential R2).

41. Two confidential sessions were held in the absence of the applicant and the public, as provided for in s 107 of the GIPA Act. The first confidential session was held on 28 August 2019, after the conclusion of the first day’s hearing, to hear submissions by SunRice. The representative of the RMB participated in that confidential session. The second confidential session on 13 September 2019 heard submissions by the RMB, in the absence of the applicant and SunRice and the public. The confidential sessions enabled the Tribunal to examine, and hear submissions concerning, the documents the subject of the access request.

42. An order is made under s 64 of the Civil and Administrative Tribunal Act 2013 that the material filed by the RMB on a confidential basis, and the record of that part of the proceedings conducted in private (other than the confidential session on 28 August 2019 which may be disclosed to SunRice), are not to be released to the applicant or to the public. The order also applies to those portions of these reasons identified as [Not for publication].

Relevant legislation

43. The object of the GIPA Act as set out in s 3 is to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

44. It was not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.

45. There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act.

46. There is a general public interest in favour of disclosure of government information: s 12(1) GIPA Act. Examples of public interest considerations in favour of disclosure, which are not limited, are provided in a Note to s 12:

Note.

The following are examples of public interest considerations in favour of disclosure of information:

(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.

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

47. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure:

13 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.

48. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act. The considerations on which the RMB relies in this review are cl 1(d), (f) and (g), and cl 4(c) and (d) of the Table to s 14:

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,

…

49. In its written submissions the RMB had not relied on cl 1(f). In oral submissions the RMB agreed that cl 1(f) was a relevant public interest against disclosure, flowing from the other provisions in cl 1, and relied on the submissions made by SunRice relating to cl 1(f).

50. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provides as follows:

15 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.

51. The personal factors of the application, being the applicant's identity and relationship with any other person, their motives for making the access application, and any other factors particular to the applicant, may be taken into account as factors in favour of providing an applicant with access to information (s 55(2)). Personal factors may be taken into account as factors against providing access only if relevant to consideration of whether the disclosure could reasonably be expected to have any of the effects referred to in cll 2-5 of the Table to s 14 (s 55(3)), being relevantly for this application, the factors in cll 4(c) and (d).

52. The onus of establishing that an agency's decision is justified lies on the agency: s 105 GIPA Act. That means, as explained in Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20], that it is the RMB’s obligation to identify the information contained in each document which it contends should be withheld from the applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour; and it is then the RMB’s burden, pursuant to s 105(1) of the GIPA Act, to justify its decision through submissions and evidence.

Consideration

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.

Public interests in favour of disclosure

55. The applicant submits that there is a very strong public interest in favour of disclosure of the documents relating to the merits of the decision to grant SunRice exclusive rights to export NSW-grown rice and the RMB’s continuing evaluation of the alleged benefits of the single desk system. Disclosure of that information 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. The information sought is not merely to increase transparency of the RMB’s decision-making and operations, but to enable a public evaluation of the single desk system which the RMB implements and which affords SunRice a monopoly in relation to the export of NSW-grown rice. The questions of whether rice grown in NSW for export should be vested in the RMB and whether the RMB should grant a monopoly on the export of NSW-grown rice to SunRice, a privately held commercial enterprise, are both questions of great public importance. The single desk system is the only single desk system left in Australia, has been the subject of a recommendation for repeal by the Productivity Commission, involves the conferral of 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. It is imperative that there be transparency concerning the RMB’s decision to grant SunRice the monopoly and SunRice’s performance as an exporter as without that information stakeholders and the public will be deprived of the opportunity to fully participate in debate concerning the merits of the rice vesting regime and the RMB’s decisions in relation to that regime.

55. The RMB accepts that disclosure of the information could reasonably be expected to promote open discussion of public affairs including by increasing the transparency of RMB’s decision-making and enhancing its accountability; and that disclosure also could reasonably be expected to inform the public about the operations of the RMB. Both factors are identified as examples in the note to s 12(2) of public interest considerations in favour of disclosure. The RMB submits that to facilitate the making of submissions as to the vesting scheme is a legitimate objective, however submits that this is met by the accountability mechanisms including publication in the annual reports, the review of the scheme conducted by the department, and the annual verification by the consultant. That is independent scrutiny, even if it is not made public.

56. SunRice agrees with the RMB’s submissions as to the public interest considerations in favour of disclosure and the weight to be given to those considerations.

57. The Tribunal is satisfied that public interests in favour of disclosure are that 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 desk export scheme. There is a public interest in favour of disclosure of information that could reasonably be expected to inform the public about the operations of an agency, the RMB, and the RMB’s decisions in relation to the single desk export scheme. The weight to be given to the public interests in favour of disclosure is discussed below.

Personal factors of application

59. Mr Marcus Brown, managing director of Forbidden Foods since 2012, provides in his affidavit of 13 August 2019 (ex A1) some background to Forbidden Foods and its application. He states that Forbidden Foods purchases rice from international rice farms, and in 2018 purchased a small amount of rice grown in Victoria. Forbidden Foods wishes to purchase rice from NSW farmers for export, but cannot do so because of the current single desk export selling arrangements. Forbidden Foods has not applied to the RMB for a licence to purchase NSW grown rice for sale on the domestic market because that would require Forbidden Foods to provide commercially confidential information to the RMB, which is commercially unviable in circumstances where 3 of the 7 directors are also directors of SunRice.

60. Forbidden Foods’ position is that the documents which are the subject of the application could not assist Forbidden Foods in competing with SunRice because the single desk export selling arrangements mean that Forbidden Foods does not and cannot compete with SunRice in the international market for NSW grown rice; rather, it seeks the documents to inform Forbidden Foods’ submissions to the DPI concerning the single desk export arrangements. The next review is due in 2020 and Forbidden Foods wishes to use the information to analyse the claims concerning the asserted benefits of the single desk arrangements and in particular the asserted EPP and FSA.

61. Forbidden Foods currently competes with SunRice in importing international rice into Australia for distribution within Australia, and in importing international rice into Australia for export internationally. Forbidden Foods intends to compete in the international market if the single desk arrangements are removed as a result of the next review by the DPI, that is 2022 at the earliest. To the extent that the documents contain information that would make it possible to derive SunRice’s cost base for its operations, that information would not assist Forbidden Foods in competition with SunRice as Forbidden Foods is prohibited by the single desk arrangements from competing in the export market, and SunRice’s supply chain and cost base for its operations is not comparable to Forbidden Foods.

62. In cross examination Mr Brown maintained his position that Forbidden Foods operates in different areas to SunRice; he conceded that the information sought may have commercial value for Forbidden Foods and that if it were relevant, it would be used.

63. The RMB submits that the applicant’s position as a Victorian based premium rice grower and an international exporter of rice makes it a potential competitor of SunRice and of the NSW rice growers from whom SunRice purchases rice for export, and accordingly it is reasonable to infer that the applicant may be motivated by a desire to obtain valuable commercial information provided to the RMB by SunRice which would otherwise not be available to it. The RMB accepts that the identified motive of the applicant, that is, that the purpose for which the information is sought is to inform its submission to the review of the single desk system conducted by the NSW government, is a legitimate personal factor for the purpose of s 55 of the GIPA Act. However disclosure under GIPA cannot be made subject to any conditions as to the use of the information (s15(e)), and even if the applicant were to use the information for the limited purpose identified any such submission would necessarily be public in nature and would have the effect of releasing the information into the public domain where it could be used and exploited by SunRice’s competitors.

64. The Tribunal is satisfied that the personal factors of the application can be characterised as being Forbidden Foods’ motive for making the access application, and its position as a rice distributor both in the domestic and international market. The Tribunal accepts that a motive for the application is Forbidden Foods’ position that it opposes the continuation of the single desk export selling arrangements and wishes to make a submission to the DPI for the next review of the rice vesting regime. That position is consistent with it having made a submission to the 2016 review, in which it stated that the current vesting arrangements are not in the best interests of the NSW rice industry (ex A1, tab 9). The Tribunal accepts that while Forbidden Foods would be willing to use any relevant commercially valuable information disclosed, and while it is not presently able to compete with SunRice in the export of NSW grown rice, it is not unreasonable to expect that if the single desk export arrangements end, that Forbidden Foods would seek to compete with SunRice. The earliest that could happen would be some time after the current SEEL arrangement ends, in 2022. The Tribunal considers that the applicant’s opposition to continuation of the single desk export arrangements and its intention to make a submission to the next review of that scheme, and its longer term wish to be able to purchase and export NSW grown rice in competition with SunRice are personal factors of the application, to be taken into account as permitted by s 55 of the GIPA Act.

Public interests against disclosure

65. Clauses 1(d), (f) and (g) and 4(c) and (d) in the Table to s 14 require a finding as to whether or not disclosure “could reasonably be expected to” have one or more of the specified effects.

66. The principles to be applied in considering that test were summarised in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] in the following terms:

68.There was no dispute between the parties that:

(1) The [agency] bore the onus of establishing the existence of one or more of the relevant public interest considerations against disclosure in cl 1 of the Table in s 14 of the GIPA Act: see s 105.

(2)   The words “could reasonably be expected” are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] -

... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act."

(3)   In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22].

(4)   It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53].

(5)   “Prejudice” is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

(6)   The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26].

67. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the nature and probity of the evidence required to establish that disclosure of the information could reasonably be expected to have one of the effects in the Table to s 14, referring to Searle and the authorities discussed in that decision, and held:

59.   Based on these authorities when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1)   a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2)   there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3)   prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

68. The RMB submissions as to the public interest considerations against disclosure were framed by reference to the different categories of documents at issue: that is, the Reporting Letters, being the SunRice responses to the RMB’s request for information in relation to the performance metrics for the years 2013, 2014, 2015, 2016 and 2017 (documents 2, 4, 6, 8 and 10); the Independent Verification Reports, being the five reports obtained by the RMB from Grant Thornton for the years 2013, 2014, 2015, 2016 and 2017 (documents 11, 12, 13, 14, and 15); the October 2015 correspondence (documents 25 and 26); and the letter from the RMB to Grant Thornton of 14 August 2017 (document 27).

69. As discussed in Taylor at [20], confirmed on appeal in Destination NSW V Taylor [2019] NSWCATAP 123 at [69], the task of the Tribunal is to consider the effect of disclosing each particular piece of information contained within a document, and not the document as a whole.

70. In undertaking that task, the Tribunal notes that it is SunRice’s position that it would be difficult to separate out information in each of the documents by reference to the different sources, particularly where the information either comprises or is derived from SunRice’s analysis which often combines information from different sources. SunRice submits that parts of the information which it provided were derived from proprietary sources and are generally confidential to the proprietors of those sources, and in respect of which SunRice itself has only limited rights; and that parts of the information comprise the kind of information which is ordinarily confidential to an organisation such as SunRice, such as financial, market and strategic information, and is in fact confidential to SunRice. The information was provided to the RMB or to Grant Thornton on the understanding it would be confidential, including in accordance with the Confidentiality Agreement, except for the limited parts which were understood to be publishable.

Cl 1 (d): prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

71. The RMB relies on the evidence of Ms Chiswell that assessing the performance of the SEEL holder through the annual reporting is the mechanism by which the RMB seeks to achieve its object (b), and submits that that is the “administrative structure and context” to which the Tribunal should have regard in undertaking the s 14 enquiry (Camilleri at [37]).

72. The RMB submits that four of the five Reporting Letters fall within the timeframe of the Confidentiality Agreement, under which the purpose to which the parties agreed to disclose confidential information was specified as:

Specified Purpose means the sole purpose for which the Confidential Information of one Party is disclosed to the other Party which is set out as follows:

Information supplied by SunRice to the RMB which is then provided to NSW [NSW Department of Trade and Investment, Regional Infrastructure and Services] regarding performance of SunRice in relation to its vesting arrangements and sole and exclusive export licence under the Rice Marketing Act 1983 (NSW).

73. Document 2, while created before the Confidentiality Agreement, was marked “commercial-in-confidence” when provided to the RMB.

74. The RMB submits that those factors, and also the manner in which the RMB deals with the information, which is that as a matter of practice the information provided by SunRice is not disclosed by the RMB, demonstrate that the information contained in the Reporting Letters is confidential information.

75. The RMB submits that if it discloses the information provided to it in the Reporting Letters under conditions of confidence, its relationship with the SEEL holder will be compromised to the extent that it will not enjoy the same level of access and insight into SunRice’s business activities and plans, and such an outcome would make it very difficult for the RMB to monitor the performance of the SEEL holder. The effective exercise of the RMB’s functions depends on confidential information being provided to it by the SEEL holder, regardless of the identity of the holder, and that supply is prejudiced in circumstances where the holder of that information fears that it will suffer damaging consequences as a result of providing that information.

76. RMB submits, relying on Ms Chiswell’s affidavit, that the information recorded in the Independent Verification Reports is highly detailed and includes commentary on how SunRice calculated the figures it reports to the RMB, and also includes other information of value to the RMB such as sensitivity analysis on foreign exchange rates. The reports contain confidential information, each being marked “Private and Confidential”, and each including a clause stating that the report is confidential and has been prepared exclusively for the RMB. Disclosure of the information could reasonably be expected to prejudice the supply to the RMB of confidential information that facilitates the effective exercise of the RMB’s functions: first, for the same reasons that apply to the data provided in the reporting letters, and secondly, to the extent that the reports contain information supplied directly to Grant Thornton by SunRice to enable it to undertake its verification on behalf of the RMB.

77. The RMB submits that the information in documents 25 and 26 was provided confidentially by SunRice, it being subject to the Confidentiality Agreement, and that it is plain that the purpose was the exercise of the RMB’s monitoring function. Document 27 conveys to Grant Thornton information provided to the RMB by SunRice, which SunRice agrees may be conveyed on condition that the information is kept commercial in confidence, for the purpose of enabling it to undertake its verification function. The RMB submits that if information of that nature were disclosed it could readily be inferred that SunRice would be less inclined to provide information of that sort in the future, and that could reasonably be expected to diminish the effectiveness of the RMB’s functions in particular with regard to object (b).

78. SunRice adopts the RMB’s submissions, and further submits that while SunRice has obligations to report certain information to the RMB or its independent consultant it has habitually provided more information than it is required to provide, in a spirit of frankness and candour, and it would not provide information in such detail if it knew there was a risk of that information being made public. SunRice would not provide information from confidential proprietary 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 SunRice’s strategy; or specific kinds or details of financial information about SunRice and its operations. All the information is information which facilitates the effective exercise of the RMB’s functions, particularly object (b).

79. The applicant responds to the submission that disclosure of the information would lead to a decreased supply of information from SunRice to the RMB, submitting that:

1. SunRice is under contractual obligations to provide access to the relevant information, referring to cll 2.2-2.3 and 2.4 of the SLA, and to Ms Chiswell’s evidence that in any event the terms of the SEEL provide that RMB has full and free access to the records of the SEEL holder that relate to or are connected with its performance as the SEEL holder;

2. It is in SunRice’s commercial interests to continue to provide information because the holding of the monopoly on the export of NSW rice is an immensely valuable right and SunRice would be unlikely to do anything which might put that right in danger; it is therefore in SunRice’s interests to provide as persuasive a case as possible for the continuation of vesting arrangements;

3. SunRice has no competitors for the export of NSW rice and even if it were to have competitors it professes to be one of the largest food companies in the world and is unlikely to be troubled by a company such as Forbidden Foods;

4. The fact that 3 out of 7 members of the RMB are directors of SunRice also decreases the likelihood that SunRice would take an antagonistic position against the RMB; and

5. The RMB has never turned its mind to whether there are other sources of information available to it to enable an estimate for the EPP. The RMB has led no evidence of how if at all it seeks to obtain information about the benefits of the single desk system other than from SunRice.

80. As to the confidentiality of the information, the applicant submits that:

1. The extent to which SunRice is exposed to direct competition in relation to export of NSW grown rice is either non existent or very limited: SunRice has no competitors for export of NSW grown rice, having a monopoly on export, and in the absence of competitors it is almost impossible to characterise the information as having the quality of confidentiality. And even if the “market” is the export market for premium medium grain rice, any such competitors would necessarily be internationally based, and in any event the evidence is that direct competition for NSW grown rice is limited;

1. The material is out of date, the oldest being from 2013; and even if it were confidential at one point it could no longer be current because the volatility of rice pricing makes it impossible to use pricing information from 2013-2017 to deduce SunRice’s pricing strategies in 2020, and because in any event SunRice has adopted a new 5 year strategy implemented after the documents in question;

2. Even if the information is out of date for any use for future competition with SunRice, it remains current for consideration of the policy questions associated with the continuation of the single desk policy and sole export licence, because submissions to the next review are about proving or disproving the existence of an economic phenomenon, namely the existence of an EPP by reference to events that have already occurred;

3. SunRice adopted a new 5 year strategy (the “2022 Growth Strategy”), as detailed in its 2018 Annual Report and ASX Information Memorandum, and the information from 2013 to 2017 would not enable any competitor to determine any details about the markets targeted in the 2022 Growth Strategy;

4. The Tribunal must approach the matter on the basis that Forbidden Foods would use the information for a submission to the next DPI review. It is improbable that a US-based rice company would become aware of the outcome of the proceedings, or that such a company would be aware of the analysis conducted by the DPI;

5. Grant Thornton does not assert a claim to confidentiality; and

6. The information obtained from subscription services is accessible to anyone with a subscription and cannot be confidential to SunRice, and any breach of SunRice’s subscription licences would have occurred when SunRice disclosed the information to the RMB.

Discussion

81. Clause 1(d) requires that the information be “confidential” information; that it be information that facilitates the exercise by the agency of its functions; and that disclosure of that information could prejudice the supply of such information. The Tribunal must consider first, the character of the information, and secondly, the effect of the disclosure of the information on the RMB’s functions.

82. It was common ground that the RMB’s objects include (b) “to ensure the best possible returns from rice sold outside Australia based on the quality differentials or attributes of Australian grown rice”, and (c) “to liaise with and represent the interest of all NSW rice growers in relation to the RMB’s function and objects”. Ms Chiswell’s evidence that the RMB undertakes an annual review of the performance of the SEEL holder, and that for that purpose, its practice is to request the provision of detailed information at the conclusion of each financial year, in support of object (b), was not disputed.

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.

86. Mr Morris stated that with the exception of the cover page, the information is of a commercially sensitive and confidential nature, and SunRice provided those documents to the RMB subject to and in reliance on the terms of the Confidentiality Agreement. SunRice provides that information to the RMB solely because it, as a government agency and regulatory body, requests it. SunRice has in a spirit of cooperation and transparency over the years been open and candid with the RMB and provided more detailed and extensive information than the RMB may strictly require to fulfil its functions in relation to the SEEL, in order to help the RMB understand SunRice’s business and the sectors in which it operates. SunRice’s responses are as a result more detailed and granular in their insights and descriptions of prices, individual international markets, developments, trends and competitive dynamics than information that is publicly available. That makes the information potentially valuable to domestic and international competitors of SunRice.

87. Mr Morris’ evidence was that while the exact descriptions and statistics vary, the position is similar for each of documents 2, 4, 6, 8, and 10. The detailed price premium information setting out prices per tonne, value of sales and premiums obtained in each export market would not be provided, except for the total values information. If disclosed, the information could allow a competitor or third party to reverse engineer SunRice’s volume of sales and market share in each region, and would give third parties a potential “price guide” thus impacting on SunRice’s commercial negotiations with its overseas customers. He would not provide a breakdown of SunRice’s volumes, prices and market share on a region-by-region basis, instead only a high-level summary or conclusion as to the premiums SunRice obtained. The Market Overview & Update, Market Position and Ability to Successfully compete sections set out at a granular level SunRice’s overview and update on developments, dynamics and pricing trends, and an assessment of SunRice’s market position, product penetration and development, investment in research and development and competitive advantages in relation to each export market. Disclosure would reduce the amount and detailed nature of the information he would include in drafting future annual reviews and he would provide only high level and less detailed information, without reference to subscription based information.

88. Mr Morris stated that if the information on interest rate management and currency management were disclosed SunRice would provide only information available in its annual reports, meaning that the RMB would need to obtain its own analysis to verify the information in the annual reports. Disclosure of the information on bank covenants could harm SunRice’s commercial and financial interests, as it is confidential as between SunRice and its banking syndicate members. The detailed information on the value of the freight scale advantage, being the volume of tonnes exported, the benefit in $/ton and total FSA in $ per market, is highly confidential, and only the total FSA is published in the RMB annual reports. If disclosed, the information provided to the RMB would be reduced and only the total FSA in the total line would be provided, and not a regional-by-region breakdown. The section on demonstration of advantages of scale to rice growers contains a breakdown of SunRice’s milling capacity at each of its mills at a level of detail which is confidential; the RMB annual reports and SunRice public information publish only aggregated milling capacity. Disclosure would provide competitors with valuable information that would potentially allow them to predict SunRice’s future production capacity and output and may allow them to take steps to frustrate SunRice’s production strategies; and would reduce SunRice’s frankness and candour, as he would provide only what is public aggregated information.

89. The first issue for the Tribunal to determine is whether the information in the Reporting Letters is confidential. In Raven v University of Sydney [2015] NSWCATAD 104 at [62] the Tribunal held that the term “confidential information” is not information which may not be disclosed in any circumstances, rather “information which is not to be disclosed in ordinary circumstances”. The labelling and treatment of information as confidential is not conclusive: McKinnon v Blacktown City Council [2012] NSWDAT 44 at [55]. The Appeal Panel in Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [34] held that the enquiry “should focus on the point of receipt, and the administrative standards and community understandings which surrounded it”.

90. The RMB relies on the terms of the Confidentiality Agreement (ex I1, annexure WM2). The Tribunal accepts the evidence of Mr Morris that the information in the Reporting Letters was provided by SunRice in response to the RMB’s annual requests in documents 1, 3, 5, 7 and 9, in the context of the Confidentiality Agreement, and is satisfied that it can be described as “confidential information” in the sense explained in Camilleri.

91. The Tribunal accepts the evidence of Ms Chiswell, which is supported by the content of the letters of request, that the information is requested for the purpose of enabling the RMB to prepare its report to the DPI and rice growers. That the information is used for the purpose of enabling the RMB to prepare its annual reports is confirmed by the reports in evidence, which have been released to the applicant. Those reports include a summary of the RMB’s position that SunRice and the single desk arrangements provide substantial benefits to NSW rice growers, with quantification (supported by the review by Grant Thornton) of the total export price premium and freight scale advantage for the year. Ms Chiswell confirmed in cross examination that the information from SunRice by the independent consultant is the only source of information by which the RMB assesses the EPP; theoretically it could look at other sources of information, if it employed more staff (transcript 349-350). Based on that evidence the Tribunal accepts that if the information in the Reporting Letters were not provided by SunRice, or its detail limited, the task of the RMB would be more difficult, and would require additional resources. However, Ms Chiswell conceded in cross examination that the RMB had not looked at the publicly available sources identified in the 2012 DPI review that could be used in order to reach an estimate of the EPP (transcript 364).

92. The Tribunal accepts that the information can be described as “confidential information” that facilitates the effective exercise of the RMB’s functions. The issue is whether disclosure of that information could reasonably be expected to prejudice the supply to the RMB of such information.

93. The Appeal Panel in Camilleri at [26] held that the inquiry as to the s 14 considerations needs to be made at a broad operational level, and the specific aspects of the instant case are to be taken into account in the balancing required by s 13 of the GIPA Act. That is consistent with the position as stated in decisions such as Bourke v Roads and Maritime Services [2012] NSWADT 272 and Selby v Commissioner of Police, NSW Police Force [2013] NSWADT 61, that the test is not whether a particular person whose confidential information was being considered for disclosure could reasonably be expected to refuse to provide such information in future, but rather, whether the agency will be able to obtain such information in future. In the context of government tendering, the Tribunal has found cl 1(d) to be established where participants in future tender processes could reasonably be expected to limit the level of detail they would be prepared to provide or be less forthcoming with information: Meriton Services Pty Ltd v UrbanGrowth NSW [2017] NSWCATAD 71 at [87]-[88]; Bright v Eurobodalla Shire Council [2018] NSWCATAD 287 at [70]-[71].

94. Notwithstanding the confirmation in Searle (at paragraph [68](6)) that prejudice to future supply is not to be determined by the particulars of the instant situation, but at a broader operational level, the Tribunal considers that the present circumstances are highly unusual. The information in the Reporting Letters was provided and received in a context where there is, and can be, only one provider of the information, that is, the holder from time to time of the SEEL. That entity provided information at the request of the recipient in a context where it is obliged to do so as a term of the relationship between them. The SEEL agreement, on Ms Chiswell’s evidence, provides the RMB with full and free access to SunRice’s records as SEEL holder. The SLA (ex I1, annexure WM1), while entered into after the documents in issue in these proceedings were created, governs the information exchange and reporting requirements until the end of the current term of the SEEL. That document provides at cl 2.2.3 that SunRice is to provide an annual written report on the performance metrics listed at cl 2.3, which include evidence as to SunRice’s global market presence and brand strength to facilitate the sale of the NSW rice crop, that SunRice has the financial strength to purchase and market the NSW rice crop and act as buyer of last resort, that it has a strategic plan for marketing the NSW rice crop; quantification of the EPP and FSA for the previous year and explanation of the methodology used to calculate it, and evidence that SunRice maintains a high level of corporate responsibility.

95. In addition to the obligations on SunRice to provide the information, as acknowledged in the SLA at cl 2.1.1 the single export rights granted under the SEEL are recognised by the RMB as a highly valuable arrangement for any organisation to hold. Mr Morris was not able to say whether the monopoly on exporting NSW rice is a valuable right (transcript 366). On that issue the Tribunal prefers the evidence of Ms Chiswell, who agreed in cross examination that the SEEL export rights are a highly valuable arrangement for SunRice, because it protects SunRice from competition in exporting NSW rice (transcript 332-3). Ms Chiswell also conceded that it is in SunRice’s interests to provide as persuasive a case as possible to the RMB for the continuation of the vesting arrangements and that part of that would be continuing to provide a quantification of the EPP and the FSA, and also in explaining its methodology to the RMB or the independent reviewer (transcript 341-344).

96. The extent to which disclosure of the information could prejudice future supply of information by SunRice to the RMB is difficult to assess. Ms Chiswell expressed concern (ex R1, paragraph [49]) that if the Reporting Letters were disclosed SunRice or any other holder of the SEEL would be less forthcoming in providing information in response to the RMB’s requests for information, and that the level of cooperation provided by SunRice would diminish if the RMB could not preserve the confidentiality of the commercially sensitive information provided to it. In cross examination Ms Chiswell agreed she had not referred in her affidavit to SunRice’s contractual obligations to provide information to the RMB, stating that SunRice had always been co-operative with requests for information until this year, where because of this matter they had delayed responses to the RMB’s questions (transcript 311-313). When questioned as to why she had expressed concerns that SunRice would be less forthcoming in providing information in response to requests if the Reporting Letters were disclosed, Ms Chiswell commented that the RMB has the rights to full and free access and it chooses what information it obtains (transcript 323-4). Ms Chiswell conceded in cross examination that if SunRice stopped providing information it would probably make it less likely that the vesting arrangements would continue (transcript 346), and that SunRice would be unlikely to take steps which would make it less likely for the vesting arrangements to continue (transcript 347).

97. Mr Morris’ evidence on this issue was inconsistent. In his first witness statement (ex I1, paragraph [25]) he stated that disclosure of the content of the Reporting Letters would make SunRice less candid and frank in future written communications with the RMB, and SunRice would instead provide the bare minimum information strictly required. He gave specific examples of detail that would not be provided, at paragraphs [46], [49]; and of information derived from the subscription information at paragraph [52]. He explained at paragraph [23] that SunRice provides the information to the RMB “solely because the RMB, as a government agency and regulatory body, requests it”; and that SunRice has “in a spirit of cooperation and transparency over the years”, been open and candid with the RMB and provided more detailed and extensive information than the RMB may strictly require to fulfil its functions in relation to the SEEL, in order to help the RMB understand SunRice’s business and the sectors in which it operates. However, in his second witness statement, Mr Morris stated at paragraph [33] that SunRice provides the information “only to fulfil its legal obligations to the RMB under the SEEL”. In cross examination, Mr Morris maintained the position that SunRice would be less forthcoming if access were granted, stating that if SunRice’s competitors found out what its selling price was by marking its volumes by market that is highly sensitive information which could be used to change their competition against it and damage profitability and volume (transcript 378). He maintained that SunRice provided more information than the RMB may strictly require out of a spirit of cooperation, and also stated that it provides information only to fulfil its legal obligations, a position he did not accept was inconsistent (transcript 358-363). In further questioning he conceded that SunRice would be required under the SEEL to provide information regardless of the outcome of this application (transcript 377).

156. Mr Morris disagreed. His evidence was that the requested information remains commercially sensitive and retains its commercial value to SunRice even after it is several years old, for at least 5 to 10 years. Information that covers multiple years would be particularly useful as it would enable comparisons with other sources of information to draw inferences and conclusions about likely margins, markets of key focus and other confidential commercial strategies; and that is the case whether the information is used now by SunRice’s international competitors or by the applicant in future. Even where it is less recent, the information provides third parties with enough insights to enable them to potentially predict SunRice’s future pricing strategies in various markets as significant pricing fluctuations for branded consumer products are not that frequent. Competitors could use the information to understand SunRice’s historical pricing and pricing strategies. An understanding of SunRice’s price trends over a 5 or 10 year period would enable competitors to track SunRice’s longer term pricing, estimate margins and potentially develop ways to predict SunRice’s future prices and anticipated margins. There is a real risk that competitors could use the requested information to analyse SunRice’s strategies, prices, margins and positions in particular countries or regions or domestically in Australia and to differentiate themselves from SunRice by developing new products or changing the branding and target market for their rice products.

157. In his second witness statement (ex I2) Mr Morris states that rice is a staple product which in many countries limits the price that end customers are able to pay for rice products. Certain events can result in movements to the price, eg climactic events, continued dry periods, or large government tenders, however subject to that prices for medium and short grain varieties generally adjust yearly as the crop is typically grown once a year, and rice prices do not generally fluctuate as significantly or as frequently as Mr Brown says. As a consequence the information remains commercially sensitive and retains commercial value, and further, SunRice’s marketing, pricing and other export strategies do not necessarily vary year on year.

158. The issue of volatility in the rice market was explored in cross examination. Mr Morris agreed with the following description of the global rice market in the 2016 DPI Review of Rice Vesting Proclamation (ex A1, tab 7, p 3):

The global rice market is not only highly political but also highly fragmented between varieties. With rice not being a standardised commodity and being thinly traded, the development of widely used global benchmark prices, established quality standards or futures markets has been hindered. …

163. Mr Morris agreed that the reference in his witness statement to a period of 5-10 years in which commercial information is sensitive is a broad range, noting that the markets SunRice competes in are not necessarily global tender markets but consumer markets; and while they adjust year on year, reference can be drawn if there is several years of data, sales, tonnages and prices (transcript 145). The actual pricing in the markets that SunRice competes in with the pack sizes it competes in does not necessarily fluctuate broadly year on year (transcript 151). Mr Morris conceded that the 90% drop in Riverina production would have had a significant impact on the price of exported Australian rice, and that the export of rice by China to Egypt would also affect markets (transcript 265, 267). He conceded, when taken to the graph for May 2015 to April 2018 comparison of SunRice and California Creed prices in the 2018 RMB Annual Report (ex A1, tab 20) that there are movements of prices for medium grain rice month by month. While he did not accept that they were volatile movements, he did accept that the graph showed movement in the California price from $900 to $600 and then back up to $1000 over the three year period (transcript 280). Mr Morris accepted looking at the 2016 Productivity Commission report (ex A1, tab 11, p 633) comparing Australia and California that there are three points in time when prices were very unstable, which he said were all related to the millennium drought (transcript 307). Mr Morris conceded that SunRice would potentially have adjusted its strategy in response to price movements.

164. The Tribunal prefers the evidence of Mr Brown to that of Mr Morris on the issue of volatility of the market. That there are monthly fluctuations in price, and large fluctuations in pricing and production year by year, is supported by the external sources. That includes information provided by the RMB in its Annual Reports, for example the comparison in the 2018 Annual Report of SunRice medium grain and US medium grain prices for the period May 2015 to April 2018 (ex A1, tab 20, p 407), and in sources such as the RMB submission to the DPI 2016 Review (A2 tab 4) p 15 which acknowledged the influence of factors in addition to those of climate and weather in the global rice market:

Rice is thinly traded globally with most rice being produced in-country for domestic consumption. Very low volumes are traded globally, no material futures market is available, there is low visibility of pricing and limited publicly available information on prices and market activity.

The international rice market is heavily influenced by governments in the form of single desk buyers and sellers, export and import bans, production schemes, non-tariff barriers and other unresolved restrictions …which act to further complicate the international trade of rice.

165. It is also supported by the identification of risk factors in the SunRice Information Memorandum, a document prepared for the purposes of listing of Ricegrowers Ltd on the Australian Securities Exchange (ASX) (ex A3, tab E). That document states (at p 108):

Rice is a globally traded commodity and its price is subject to local and international changes in supply and demand. These fluctuations in price may generate volatility in the SunRice Group’s operating results and its ability to remain competitive.

SunRice purchases and sells substantial volumes of rice sourced from overseas. In the course of these activities, SunRice contracts to purchase rice at set prices and then subsequently sells that rice as branded products or in a bulk form. This exposes SunRice to commodity price risk. International rice markets can also be adversely affected by general weather conditions in countries producing rice, release of stockpiles on the market, tender requirements, tariffs and other trade barriers implemented by various countries.

SunRice mitigates the impact of price volatility through the use of branding, innovation, product mix, customer relationship management and cost management. SunRice’s risk exposure is also reduced due to its global presence and business diversification.

166. The Tribunal accepts that SunRice may for commercial or other reasons related to its focus on the packaged consumer market, maintain a degree of pricing stability. So much was acknowledged by Mr Morris in cross examination, when he agreed that SunRice reviews its pricing strategies regularly, but sometimes it is in markets where the consumer cannot afford more and the pricing has to be kept consistent (transcript 153). He contrasted California’s effectively monopoly sales rights into Japan through large government tenders and the product sold does not have packaging, whereas SunRice sells in small consumer packs, in a 5kg or 10kg package (transcript 79).

167. That does not detract from the proposition that the global trade in rice is influenced by factors that vary from season to season and in response to factors such as weather or other factors beyond the control of the growers. All the information in the present application predates the 90 percent drop in the 2019 Riverina rice crop, which Mr Morris conceded required a very significant adjustment to SunRice’s pricing strategy (transcript 207).

168. In addition to the volativity in the rice market, the sensitivity of historical information as to marketing strategy is affected by SunRice’s adoption of a new marketing strategy in its 5 year strategic plan promoted in its 2018 Annual Report (ex A1, tab 4), after all the documents the subject of the access application. The refreshed strategy includes adapting SunRice’s product range and positioning of different rice varieties (p9), and expanding into new markets (p 13). The Sunrice Information Memorandum for the listing of Ricegrowers Ltd on ASX (March 2019) (ex A3 tab E) includes information on the 2022 Growth Strategy, including identifying the markets that SunRice wants to target (transcript 260).

169. A further relevant factor is that some of the information stated to be confidential is in the public domain. For example, Mr Morris conceded in cross examination that the 2019 Annual Report (ex A3 tab D) at p 50 stated that Middle East markets are higher returning than Pacific markets (transcript 224); and that the Information Memorandum (ex A3 tab E) disclosed SunRice’s market share in Calrose in Middle East markets (transcript 249). Mr Morris’ evidence confirmed that some of the information in the Reporting Letters is publicly available. That includes WTO quota information on Japan, South Korea and Taiwan, which appears at pp7-9 of document 2 (ex I1, paragraph [47]). [NOT FOR PUBLICATION]. Some of the information is included in the RMB’s Annual Reports. [NOT FOR PUBLICATION]. And while Mr Morris stated in his affidavit that disclosure would diminish the competitive value of the information to SunRice, when taken in cross examination to some information which has been disclosed, for example in graphs in SunRice’s Information Memorandum on the ASX listing (ex A3, tab E p 82), he was unable to say whether disclosure had diminished the competitive value of that information to SunRice (transcript 437) or to the provider of that information (transcript 438).

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).

The documents in dispute

171. Consent orders are proposed for the release of documents 1, 3, 5, 7 (without attachment), 9, 23, 24, and 29 (with redactions).

172. Considering each of the documents remaining in dispute:

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 4, 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 4 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.

11. Document 25: Letter from RMB to SunRice 1 October 2015 – the Tribunal gives modest weight to the public interests against disclosure and 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.

12. Document 26: Letter from SunRice to RMB 22 October 2015 - the Tribunal gives modest weight to the public interests against disclosure and 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.

13. Document 27: Letter from RMB to Consultant 14 August 2017 - the Tribunal gives modest weight to the public interest against disclosure in cl 1(g), and 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

173. Documents 28 and 29 have been released in a redacted form. Document 28 is correspondence from the RMB to a rice grower, with the name and personal address of that person redacted as part of the decision under review. Document 29 is the RMB submission to the 2016 DPI Review of Rice Vesting. Redactions have been made of specific information on pages 5, 9 and 10. Having regard to the terms of the consent order provided to the Tribunal on 23 August 2019, the decision to provide access to those documents in that form is affirmed.

174. The orders of the Tribunal are:

1. The decision under review dated 11 March 2019 is varied as follows:

1. By consent, the applicant is granted access to the following information:

1. Document 1: Letter from RMB to SunRice 19 August 2013;

2. Document 3: Letter from RMB to SunRice 31 July 2014;

3. Document 5: Letter from RMB to SunRice 31 July 2015;

4. Document 7: Letter from RMB to SunRice 7 July 2016 (without attachment);

5. Document 9: Letter from RMB to SunRice 10 July 2017;

6. Document 23: Letter from RMB to SunRice 10 September 2014;

7. Document 24: Letter from SunRice to RMB 2 October 2014;

8. Document 29: 2016 Submission to Review of Rice Vesting (subject to redactions); and

2. Within 28 days of the date of these orders, Documents 2, 4, 6, 8,10, 11,12, 13, 14, 15, 25, 26, and 27 are to be provided to the applicant, with redactions made in accordance with the reasons in paragraph [172]; and

2. The decision under review is otherwise affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 16 January 2020