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Wednesday, September 26, 2012

Gunns down, NSW wood price out

Despite objections by the two companies involved, the NSW Administrative Decisions Tribunal (Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195) has ruled in favour of disclosure of information under the GIPA act concerning current wood supply agreements with Forests NSW. The information included the sustainable yield,  resource price and allocation of hardwood

In evidence a senior executive of one of the timber companies said he was not aware of any publicly available information of this kind. Evidence on behalf of the applicant from an economist and an environmental consultant cast doubt on this and on the claimed adverse effects of disclosure on business and commercial affairs. Judicial Member Montgomery balanced the considerations as follows:
197. I consider that there is a strong public interest consideration favouring disclosure of the redacted information in order to increasing (sic) the financial accountability of the First Respondent. I agree with the Applicant that there is a clear public interest in an agency that is dealing with public assets being accountable for the manner in which it contracts to sell those assets. This interest is strengthened by the fact that the Agreements were entered under a system that did not involve an open tender.
198. I also consider that there is a strong public interest consideration favouring disclosure of the redacted information in order to further public policy development around the management of the publicly owned hardwood forest estate in NSW.
199. I also consider that there is a strong public interest consideration favouring disclosure of the redacted information in order to encourage community engagement with government about sustainability.
200. I consider that there is a public interest consideration against disclosure of the redacted information because there is some risk that the Second and Third Respondents could be placed at a commercial disadvantage in relation to other contractors or potential contractors if the redacted material is disclosed.
201. I consider that there is a public interest consideration against disclosure of the redacted information because there is some risk that the commercial value of some aspects of the redacted information could be diminished if the redacted material were disclosed.
202. I consider that there is a public interest consideration against disclosure of the redacted information because there is some risk that the Second and Third Respondents' business, commercial or financial interests might be prejudiced if the information has not been released already were disclosed.
203. As I have indicated above, it is my view that there is considerable doubt in regard to the extent of those risks.
204. In my view, the public interest considerations in favour of disclosure outweigh those against disclosure.
205. It follows, in my view, that the determination should be set aside insofar as it relates to the Agreements. In its place the decision should be made that the redacted information in the Agreements is to be released to the Applicant. That information should be released within 30 days of the publication of this decision.
Judicial Member Montgomery in this 2007 Freedom of Information case had ruled that information about the royalty rate then more than 3 years old but still commercially valuable, was not exempt on the basis of evidence that another state had released information regarding rates without any apparent impact on commercial viability. 

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