Aspers (Stratford City) Ltd fine reduction
Request
I would like to request all papers, emails and records of phone calls connected to the regulatory decision in the case of Aspers (Stratford City) Ltd pertaining to the decision to reduce the fine from £1.8 million to £652,500 by the Gambling Commission in 2020.
I would also like to ask how many companies have had fines reduced since the start of the pandemic, the names of the companies and by how much they were reduced.
Response
Dear Sir/Madam
Thank you for your request which has been processed under the Freedom of Information Act 2000 (FOIA).
Firstly, in your email you have requested all papers, emails and records of phone calls connected to the regulatory decision in the case of Aspers (Stratford City) Ltd pertaining to the decision to reduce the fine from £1.8 million to £652,500 by the Gambling Commission in 2020.
The Gambling Commission published a statement which explained that the level of the financial penalty in this case was reduced following representations and evidence received from Aspers regarding its financial circumstances, particularly in light of Covid-19 pandemic and measures.
I can confirm the Gambling Commission does hold further information falling within the scope of this part of your request. However, in order to fulfil your request, we would be required to disclose specific financial details of an individual operator. This information relates to the performance of the business and is not otherwise in the public domain.
As such, the Commission is of the view that this information is exempt from disclosure under section 43 of the FOIA.
Section 43(2) of the FOIA provides that information is exempt information if: its disclosure under the FOIA would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).
Having acknowledged that some of the information within the scope of your request is exempt from disclosure; section 43 FOIA requires that we consider a public interest test to identify whether there is a wider public interest in fulfilling this request opposed to maintaining the exemption.
It is recognised that there is a legitimate public interest in promoting the transparency of the Commission and in making information available to the public.
However, licensed operators, such as Aspers, have a reasonable expectation that documents at this level of detail would not be published on an individual basis, particularly whilst they are trading.
Details of individual companies do not contribute to the understanding of overall performance of the industry as a whole; there is an extensive range of aggregated or anonymised data already available to the public to give a necessary level of understanding of the gambling industry.
Releasing this information would be likely to provide competitors a commercial advantage as they would be able to see the position of competing operators.
Weighing the balance, whilst the Commission aims to be open and transparent, there is a need to preserve the confidentiality of information submitted on that basis and to be mindful of the commercial sensitivities of information that is held. Having weighed these issues, the Commission is of the view that the public interest is best served through maintaining this exemption. There is very little that providing this information would do in terms of the public interest whilst disclosure would be likely to impact on the commercial interests of the Licensee.
Further to this, you have also asked how many companies have had fines reduced since the start of the pandemic, including, the names of the companies and by how much they were reduced.
The Commission has a statutory obligation to take into account any representations received before a financial penalty is imposed. Any information relating to the financial position of operators, not otherwise in the public domain, the Commission considers to be of a commercially sensitive nature.
Therefore, we are not in a position to confirm or deny whether information is held by the Commission regarding other licensed operators having fines reduced since the start of the pandemic. As such, this element of your request is being refused under section 43(3) of the FOIA.
Section 43(3) of the FOIA provides that the duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice the interests mentioned in subsection (2):
Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it.
Having acknowledged that the Commission is not able to confirm or deny whether we hold any information within the scope of this part of your request; section 43 FOIA requires that we consider a public interest test to identify whether there is a wider public interest in fulfilling this part of your request opposed to maintaining the exemption.
Licensed operators, have a reasonable expectation that information at this level of detail would not be published on an individual basis, particularly when details of any penalty or sanctions are not already within the public domain.
Fulfilling this request may cause unwarranted reputational damage to any operators who have been subject to financial penalties during the Covid-19 pandemic, due to unsubstantiated inferences being drawn regarding their financial status.
Whilst the Commission aims to be open and transparent, there is a need to preserve the confidentiality of information submitted on that basis and to be mindful of the commercial sensitivities of information that is held.
Having weighed these issues, the Commission is of the view that the public interest is best served through maintaining this exemption. There is very little that providing this information would do in terms of contributing to the understanding of overall performance of the industry whilst disclosure would be likely to impact on the commercial interests of the Licensees.
Review of the decision
If you are unhappy with the service you have received in relation to your Freedom of Information request you are entitled to an internal review of our decision. You should write to FOI Team, Gambling Commission, 4th floor, Victoria Square House, Victoria Square, Birmingham, B2 4BP or by reply to this email.
Please note, internal review requests should be made within 40 working days of the initial response. Requests made outside this timeframe will not be processed.
If you are not content with the outcome of our review, you may then apply directly to the Information Commissioner (ICO) for a decision. Generally, the ICO cannot make a decision unless you have already exhausted the review procedure provided by the Gambling Commission.
The ICO can be contacted at: The Information Commissioner’s Office (opens in a new tab), Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.
Information Management Team
Gambling Commission
Victoria Square House
Victoria Square
Birmingham B2 4BP
Request for Review
Thank you for your email turning down my request for information on the number of the gambling companies that may have had reductions in their fines and for more information on the reduction of the fine for Aspers (Stratford City) Ltd.
I request a review of the decision on the following points:
In the case of the number of companies fined I find it puzzling that you have invoked Section 43 (2) of the Act to refuse to disclose any information. You publish on your website public information of all the fines paid by each company and your last annual report publicly states that you raised £32.1 million for fining 15 companies. This is hardly a commercial secret. As it stands, if I take what appears publicly on your website Aspens appears to be the sole company given a huge reduction in fines.
On the second point my FOI request was aimed at following the money (or lack of money) for the taxpayer which I presume either goes to the Exchequer or is recycled by you. I was not asking for financial details of Aspens accounts and commercial business but for a trail of how you implemented your public duty of enforcement after the tragic suicide of the gambler from Hackney. Surely it should be possible to redact parts of correspondence which give details of their finances and still provide the information.
You should be aware that I am investigating this area as a journalist and I am keeping MPs on the all party Gambling Related Harm Group of my progress in looking at this issue.
Review Response
Further to your Freedom of Information request dated 16/01/2022 which we responded to on 10/02/2022, and your subsequent request for an internal review received on 14/02/2022, we have now concluded our review and our findings are detailed as follows. This internal review was conducted by someone who was not involved in the processing of your original request.
Your original request was for the following information:
I would like to request all papers, emails and records of phone calls connected to the regulatory decision in the case of Aspers (Stratford City) Ltd pertaining to the decision to reduce the fine from £1.8m to £652,500 by the Gambling Commission in 2020.
I would also like to ask how many companies have had fines reduced since the start of the pandemic, the names of the companies and by how much they were reduced.
In response to your first question we refused to provide this information as it was our view that the S43(2) exemption applied. As advised in our response, this is because we would be required to disclose specific financial details of an individual operator which relate to the performance of the business. This information is not currently in the public domain.
Section 43(2) of the FOIA provides that information is exempt from disclosure if its disclosure under the FOIA would or would be likely to prejudice the commercial interests of any person (including the public authority holding it).
We advised that licensed operators, such as Aspers, have a reasonable expectation that documents at this level of detail would not be published on an individual basis, particularly whilst they are trading.
We recognise there is a legitimate public interest in promoting the transparency of the Commission and in making information available to the public; further to this, in understanding the performance of the gambling industry. However, releasing this information would be likely to provide competitors with a commercial advantage as they would be able to see information relating to the financial position of a competing operator which would not ordinarily be publicly accessible.
The Commission therefore feels that the disclosure of this information ‘would prejudice’ the commercial interests of Aspers.
Public Interest Test
The factors the Commission has considered when applying the public interest test have been detailed below and our view is that the public interest lies in favour of maintaining the exemption.
In favour of disclosure
The Commission does acknowledge that there is a public interest in promoting the transparency of the Commission and in providing an understanding of the decision making process that has resulted in a reduction to the financial penalty that has been imposed on an operator.
In favour of maintaining the exemption
Specific details of the correspondence and discussions that took place, would potentially lead to direct competitors using the relevant information to inform their own strategies for their own commercial advantage which in turn would impact directly on Aspers which would ultimately cause commercial damage.
If competitors were made aware of the details of the discussions that have taken place that resulted in the reduction of a fine, these arguments could be replicated by other operators to potentially seek to reduce any future fines that could be imposed by the Commission. This in turn would have a detrimental impact on the recipient organisations of the fines that are collected by the Commission, whose main purpose is to reduce gambling harms, which would not be in the public interest.
Weighing the balance
Looking at all the circumstances of the case and the nature of the request, there is more than a 50 percent chance that prejudice would be caused to Aspers by disclosure. Public knowledge of the details of the correspondence between Aspers and the Commission would cause prejudice to the commercial interests of Aspers.
With this in mind, we do not consider the release of this information to be in the public interest.
In conclusion, I uphold our original decision to engage the S43 (2) Commercial Interests exemption with regards to the first part of your request.
With regards to your second question, (I would also like to ask how many companies have had fines reduced since the start of the pandemic, the names of the companies and by how much they were reduced) I can confirm that only Aspers had their fine reduced, the details of which including the amount of the reduction are already in the public domain. Section 21 of the FOIA provides that information is exempt where it is reasonably accessible elsewhere.
The Gambling Commission published a statement which explained that the level of the financial penalty in this case was reduced following representations and evidence received from Aspers regarding its financial circumstances, particularly in light of Covid-19 pandemic and measures.
If you are not content with the outcome of your review, you may apply directly to the Information Commissioner (ICO) for a decision. Generally, the ICO cannot make a decision unless you have exhausted the complaints procedure provided by the Gambling Commission. The ICO can be contacted at: The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.
Kind regards
Freedom of Information Team Gambling Commission