Allwyn's Bid Proposal and Forecasts

Request

1. I would like to have all copies of Allwyn's, the National Lottery operator, Good Causes Contribution forecast reports it has submitted to the Gambling Commission.
2. If the Gambling Commission has any of Allwyn's Forecasting Methodology Assurance report(s), I would like a copy of all of them.
3. I would like to have all copies of Allwyn's bid proposals it submitted to the Gambling Commission when it applied to be the National Lottery operator.

Response

Thank you for your request which has been processed under the Freedom of Information Act 2000 (FOIA).

In your email you have requested:

1. I would like to have all copies of Allwyn's, the National Lottery operator, Good Causes Contribution forecast reports it has submitted to the Gambling Commission.
2. If the Gambling Commission has any of Allwyn's Forecasting Methodology Assurance report(s), I would like a copy of all of them.
3. I would like to have all copies of Allwyn's bid proposals it submitted to the Gambling Commission when it applied to be the National Lottery operator.

The Gambling Commission can confirm that information is held falling within the scope of your request. However, this information is exempt from disclosure as sections 41 (Information provided in confidence) and 43 (Commercial interests) of the FOIA are engaged.

For completeness, we advise that the Commission sought input from Allwyn, as the provider of information within the scope of your request, to seek their views on whether the information should be disclosed. Their response has been considered as part of the Commission’s deliberations, however the decision has ultimately been taken by the Commission.

Our considerations for engaging these exemptions are detailed below.

Information provided in Confidence – Section 41

Section 41 provides an exemption under the FOIA from the right to know, where the information was provided to the public authority in confidence. Information will be covered by section 41 if:

i. it was obtained by the Commission from any other person (including another public authority),

ii. its disclosure would constitute a breach of confidence actionable by that or any other person.

When deciding if disclosure would constitute a breach of confidence, the Commission has to consider:

i. Whether the information has the quality of confidence.

ii. Whether it was imparted in circumstances imparting an obligation of confidence, and

iii. Whether disclosure would be an unauthorised use of the information to the detriment of the confider.

Section 41 is designed to give those who provide confidential information to public authorities, a degree of assurance that their confidences will continue to be respected, should the information fall within the scope of a FOIA request.

All of the information you have requested was provided to the Commission in circumstances imparting an obligation of confidence and has the necessary quality of confidence. For the avoidance of doubt, Allwyn have made clear that in their view the information was provided to the Commission on the basis that it was confidential and would remain confidential.

Having considered your request and the information falling within scope of the request, the Commission has concluded that disclosure would constitute a breach of confidence.

The Commission considers that the public interest in disclosing this information is outweighed by the wider public interest in preserving the principle of confidentiality, and the impact that disclosure would have on third-party organisations and our working relationships.

The Commission depends and relies on the free flow of confidential information from operators that it regulates more generally to perform its statutory functions. The Commission’s ability to undertake its statutory functions would be significantly fettered if disclosure occurred.

Therefore, in light of the above, and on balance, the requested information will not be disclosed and the section 41 exemption is engaged for all elements of your request.

Commercial Interests – Section 43(1) and Section 43(2)

Specifically in relation to parts one and three of your request, Section 43(1) provides an exemption from disclosure for information which is a trade secret. A trade secret is the property of its owner. To be a trade secret, information should:

• be secret, in the sense that it is not generally known among, or readily accessible to, people within the circles that normally deal with that kind of information;
• have a commercial value, because it is secret. Its disclosure should also be liable to cause real (or significant) harm to the owner or be advantageous to any rivals; and
• be subject to reasonable steps under the circumstances, taken by the owner, to keep it secret.

The Good Causes Contribution forecast reports (which form part one of your request) include Allwyn’s sales data and therefore in their view constitutes a trade secret.

Further, the information contained in the bid proposals (which form part three of your request) submitted by Allwyn (or any other applicant) could impact on the future commercial activity of an applicant as the disclosure could reveal specific information which could be used by competitors in the future for their own advantage.

Based on the nature of the information requested and the definition outlined above, the Commission’s view is that this exemption is engaged for parts one and three of your request. Section 43(1) is a class-based exemption and therefore there is no additional requirement to consider whether its disclosure would result in harm or prejudice, for us to engage the exemption.

Section 43(2) then exempts information whose disclosure would, or would be likely to, prejudice the commercial interests of any legal person (an individual, a company, the public authority itself or any other legal entity). A commercial interest relates to a legal person’s ability to participate competitively in a commercial activity.

The Commission views that the disclosure of any or all of the information requested would, or would likely to be, prejudicial to Allwyn, the Commission and / or the National Lottery itself.

The Commission considers that the public interest in disclosing this information is outweighed by the wider public interest in protecting the commercial interests of Allwyn, the Commission and the National Lottery. Our full public interest consideration for the section 43(1) and section 43(2) exemptions is set out below.

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 Gambling Commission is the statutory body responsible for awarding licences to run the National Lottery.

As such, there is a public interest in members of the public having confidence that the Commission and Allwyn are being open and honest with the information it holds so that we can be held to account.

It is important that the public are assured that the Commission is carrying out its functions in ensuring that the successful applicant awarded the licence to run the National Lottery and therefore providing the facility to partake in the National Lottery to the public, is upholding the statutory obligations associated with the National Lottery.

Disclosure may encourage stakeholders to work with us and contribute to this programme of work, increasing confidence in the Commission as a regulator and its ability to uphold the law.

Specifically in relation to part three of your request, disclosure of the requested information could also demonstrate to stakeholders and relevant parties how the Commission adequately assesses applicants as part of the competition process.

In favour of maintaining the exemption

Disclosure of the information requested in relation to Allwyn’s forecasts and forecasting methodology could create an opportunity for other market participants to adapt their future commercial behaviour and strategies. This could impact competitive market dynamics to the detriment of The National Lottery and consequently, negatively impact on Allwyn’s ability to meet its Good Causes forecasts. Disclosing the requested information could therefore also potentially compromise the integrity of the new National Lottery Licence and in turn, negatively impact the Commission’s statutory duty to maximise returns to good causes.

Further to this, the Commission has taken steps throughout the running of the 4th National Lottery competition to publish information ensuring the transparency and accountability of the process. Specific detail of applicant bid proposals does not contribute to the overall understanding of the National Lottery. Disclosing the requested information regarding Allwyn’s bid proposals could discourage applications for any future National Lottery Licence and licensees from providing information to the Commission in future, which would likely prejudice the Commission’s ability to run future competitions effectively and to monitor and regulate the National Lottery.

Finally, we have considered that there was merit in the representations provided by Allwyn in relation to this request, who also consider that section 43 of the FOIA is engaged.

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.

Looking at all the circumstances of the case and the nature of the request, there is more than a 50% chance that prejudice would be likely to be caused to one or more of the parties by disclosure. Public knowledge of the information requested is unlikely to contribute to a proper understanding of the performance of the National Lottery and would potentially cause prejudice to applicants, the Commission, and / or the National Lottery itself.

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. 

It should be noted that if you wish to raise a complaint with the ICO about the Commission’s handling of your request for information, then you are required to do so within six weeks of receiving your final response or last substantive contact with us.

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