Correspondence with Henderson Chambers
Request
Copies of the email correspondence between Henderson Chambers and the gambling commission have been provided which refer to questions that were raised by Malcolm.
Please provide a copy of the set of questions raised together with the responses provided. For ease it's the questions raised in the email on the 2 July 2021 and the further one raised on the 5 July 2021 to which it would look like responses to all were provided on the 12 July 2021.
Response
I write further to your email of 20/08/2023, which has been processed under the Freedom of Information Act 2000 (FOIA).
Please accept our apologies for the delay in receiving your response and for any inconvenience this has caused.
In your email you have requested the following information (“the Requested Information”):
“Copies of the email correspondence between Henderson Chambers and the gambling commission have been provided which refer to questions that were raised by Malcolm. Please provide a copy of the set of questions raised together with the responses provided. For ease it’s the questions raised in the email on the 2 July 2021 and the further one raised on the 5 July 2021 to which it would look like responses to all were provided on the 12 July 2021.”
Please see the attached information we are providing falling within the scope of your request. Some of the information contained within the attached document has been deemed not disclosable and therefore exempt under the FOIA. Our reasoning for this decision has been explained below.
For context, the Gambling Commission (the Commission) was set up under the Gambling Act 2005 (the Act) to regulate commercial gambling in Great Britain in partnership with licensing authorities. We also regulate the National Lottery following a merger with the National Lottery Commission in 2013.
Section 22 of the Act sets out that the Commission has a statutory duty to promote the licensing objectives as laid out in section 1 of the Act, which are:
a) preventing gambling from being a source of crime or disorder, being associated with crime or disorder or being used to support crime,
b) ensuring that gambling is conducted in a fair and open way, and,
c) protecting children and other vulnerable persons from being harmed or exploited by gambling.
Gambling operators are required to hold a licence from the Commission in order to offer facilities for gambling to customers located in Great Britain. This involves applying to the Commission for an operating licence. During this process, the Commission makes an assessment of suitability against criteria set out in the Act and our published policy documents, including the Statement of principles for licensing and regulation (June 2017) (the Statement of Principles) and the Licensing compliance and enforcement under the Gambling Act 2005: Policy statement (June 2022) (the Policy Statement).
Further, Parts 4 and 5 of the Policy Statement set out in detail how the Commission monitors compliance amongst those it licenses, and the steps it may take if non-compliance is found. This may include commencing a section 116 review of the operating licence, and imposing a sanction at the conclusion of that review.
The monitoring by the Commission of those it licenses involves a range of tools to establish and continuously assess whether licensees are complying with is regulatory activities. This may include undertaking compliance assessments, requesting audits and other information about the licensed activities. This may also include making statutory information requests under section 122 of the Gambling Act 2005. These tools, coupled with the Commission’s assessment of risk, allow us to evaluate and assess compliance across the industry consistently and in accordance with our risk methodology.
Where non-compliance is found, the Commission will consider a range of options available to it to achieve the best outcome for consumers and mitigate the risk posed by the licensee. This may include putting the operator into the special measures process or proceeding with a review of the operating licence.
The activities above are largely supported by a number of internal processes, to ensure we are carrying out our statutory functions. Where we can, we have published information about these processes, to ensure transparency in our activities, whilst ensuring our functions are not prejudiced by disclosing our investigative techniques.
Further information about our processes can be found at the links below:
- Licensing, compliance and enforcement under the Gambling Act 2005 (gamblingcommission.gov.uk).
- Statement of principles for licensing and regulation (gamblingcommission.gov.uk).
- Indicative sanctions guidance - June 2017 (opens in a new tab).
- Statement of principles for determining financial penalties (gamblingcommission.gov.uk).
Law Enforcement – Section 31
S31(1) provides that information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice –
g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2).
The relevant purpose referred to subsection (2) are –
a) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise,
b) the purpose of ascertaining a person’s fitness or competence in relation to the management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become, authorised to carry on.
The Requested Information contains details of the Commission's internal processes, including how it decides to prioritise its resources, and the techniques it uses to identify non-compliance. This includes details surrounding the Commission’s assessment processes. We are therefore of the view that the disclosure of some of the information you have requested would prejudice the regulatory functions of the Commission and, as such, and subject to the public interest test below, this information is exempt under section 31 of the FOIA.
For your reference, some sections of the Commission’s response have been removed in their entirety under section 31 of the FOIA.
Providing this information would reveal details about how the Commission conducts its assessments and revealing this information would prejudice the Commission’s ability to fulfil its statutory functions. The information which has been redacted, forms part of our licensee assessment process. These documents set out the procedure that staff need to follow when assessing licensees and the licensees ability to comply with the requirements of the Gambling Act, the LCCP and any other guidance provided by the Commission.
Under section 31 it is necessary that we consider a public interest test to identify whether there is a wider public interest in disclosing this information as opposed to maintaining the exemption.
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 applying the exemption.
In favour of disclosure
The Commission is a public body which is required to regulate the gambling industry in the public interest. There is therefore a public interest in members of the public having confidence the Commission is being open and honest with the information it holds so that it can be held to account. It is important that the public are assured that the Commission is carrying out its functions in ensuring that any individuals/organisations who are involved in providing gambling facilities to the public have undergone the necessary assessments and will uphold the licencing objectives ensuring that consumers are protected.
Disclosure of the requested information could demonstrate to stakeholders and relevant parties how the Commission is assessing its licensees and, furthermore, this disclosure may encourage stakeholders to work with us and contribute to our programme of work, increasing confidence in the Commission as a regulator and its ability to uphold the law.
In favour of maintaining the exemption
The Commission has robust and effective processes and procedures in place which are utilised when assessing licensees. These procedures and processes are put in place to minimise the risk of an operator continuing to provide gambling facilities, where they do not meet the required standards.
This demonstrates to the public at large that they can have confidence in the Commission’s licence assessment processes.
There is an expectation of confidence in much of the Commission’s work, particularly regarding the techniques used to ascertain if a licensee should remain licenced. It is the impact on this work of the Commission which is more likely to be affected by disclosure. The amount of specific information the Commission can release relating to our regulatory techniques which is directed specifically at its staff who are assessing licensees is limited as this could lead to potentially non-compliant operators altering their behaviour specifically to meet the Commission’s standards purely for assessment purposes. Allowing them to tailor their practices and procedures in a strategic manner which would deprive the Commission of information which would otherwise have been provided and which would be relevant to the Commission’s assessment of the licensees. This in turn may impact on the Commission’s function of ascertaining a gambling operator’s fitness to carry out gambling activities.
However, in order to promote transparency, there is information that is publicly available, both on our website but also via the Policy Statement (set out above) which clearly sets out the required standards with which operator licensees are expected to comply. Therefore, it is our view that there is sufficient information publicly available about the assessment process and assessment framework to adequately address the public interest in transparency in respect of this matter.
The Commission also publishes other information in relation to how it assesses licensees, including its Statement of principles for licensing and regulation. Therefore, to the extent that there is a public interest in transparency around the assessment of licensees this is already met by the material the Commission proactively publishes.
Disclosure of this information would also undermine the Commission's ability to uphold the licensing objectives which would impact on the trust and confidence of the public in it as a regulator.
Further, disclosure of the requested information would prejudice the outcome of future assessments by the Commission by exposing assessment techniques and practices to the detriment of the public interest.
Weighing the balance
The Commission acknowledges that there is a public interest in promoting the accountability and transparency of public authorities and the importance of having sufficient information in the public domain to support consumers with their choice of operator, however, disclosure of the information would be damaging to the Commission as a regulatory body which ultimately serves to protect the wider public interest.
It is important that the public are assured that the Commission is carrying out its functions in ensuring that any individuals/organisations who are involved in providing gambling facilities to the public have undergone the necessary assessments and will uphold the licencing objectives ensuring that consumers are protected.
However, there is a strong public interest in preserving the processes that the Commission uses to assess licensees and identify any operators who will be unable to comply with the Commission’s regulatory requirements. The public trust that the Commission has robust processes in place to assess operators so that when they use the services provided by an operator, they are confident that there has been sufficient scrutiny of that operator to ensure that they are protected. If this information were released it would undermine that confidence.
We consider that the public interest is better served by withholding the requested information ensuring that consumers are protected through our processes rather than releasing information about our processes which in our view will not benefit the public as a whole.
Commercial interests - Section 43
In accordance with Section 43(2) of FOIA, the Commission may withhold information if its disclosure under FOIA would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).
In relation to Question 9 of its response to Mr Sheehan, the Commission provided the Gross Gambling Yield (GGY) of several large operators. The GGY of individual operators relates to the performance of the business and is not otherwise in the public domain. The Commission is of the view that this information is exempt under Section 43(2) of the FOIA.
Having acknowledged that 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.
Public Interest Test
In favour of disclosure
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 and to further understanding of the performance of the gambling industry. Further to this, there is a legitimate public interest in members of the public having confidence the Commission is being open and honest with the data it holds so that it can be held to account.
In favour of maintaining the exemption
Licensed operators have a reasonable expectation that this level of information would not be published on an individual basis. An extensive range of aggregated or anonymised data is already available to the public to give a necessary level of understanding of the gambling industry, including that available on our website: Industry Statistics – November 2022 (gamblingcommission.gov.uk).
Detail of individual companies does not contribute to the understanding of overall performance of the industry as a whole.
Releasing this information would be likely to provide competitors with a commercial advantage as they would be able to see the position of competing operators. We consider that disclosing the information could discourage licensees from freely providing information to the Commission in future, which would likely prejudice the Commission’s ability to monitor and regulate its licensees, and target its resources as effectively as possible.
Providing operator specific information regarding the information requested could lead to comparisons being made between operators, leading to unjustified inferences being made without the full context.
Weighing the balance
Whilst the Commission aims to be open and transparent, there is a need to preserve the confidentiality of information relating to licensed operators and to be mindful of the commercial sensitivities of information that is held. Looking at all the circumstances of the case and the nature of the request, in our view there is more than a 50% chance that prejudice to the Commercial Interests of licensees would be caused by disclosure and the Commission’s view is that the public interest is best served through maintaining this exemption.
Personal data - Section 40
Finally, personal information relating to identifiable individuals has been redacted from the attached documents, except where we have considered disclosure of this information to be lawful.
The Data Protection Act 2018 requires the processing of personal data to be fair and lawful. The Commission considers that it would be disproportionate for us to publicly disclose the personal data of certain individuals contained within these documents as there is no strong public interest in doing so. There is no legitimate expectation that the personal information of these individuals will be disclosed in the context in which it is held.
On balance, there is no legitimate public interest in disclosing this information and it would not be fair to do so.
This information is therefore exempt under section 40(2) of the Freedom of Information Act 2000.
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
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