Correspondence between the Gambling Commission and the ICO

Request

Please send me all correspondence you've exchanged with the ICO in the last 12 months.

Response

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

In your email you have requested correspondence the Gambling Commission have exchanged with the ICO in the last 12 months. Specifically, information about how the ICO / GC work together on matters of unlawful marketing.

In order to retrieve information falling within the scope of your request, a search has been performed across Commission systems for emails to and from @ico.org.uk email addresses, containing the terms ‘marketing’ OR ‘advertising’.

I can confirm that a small number of records are held by the Gambling Commission falling within the scope of your request. However, as this information relates to specific operators we consider these records to be exempt in their entirety by virtue of s31 of the FOIA.

Our considerations for engaging this exemption are as follows:

Law Enforcement – Section 31

Section 31(1)(g) exempts information whose disclosure would, or would be likely to, prejudice the exercise by any public authority of its functions for any of the purposes specified in subsection (2).

The Commission considers the subsections below apply and therefore the information is exempt from disclosure:

1. Subsection 31(2)(a) refers to the purpose of ascertaining whether any person has failed to comply with the law,
2. Subsection 31(2)(c) refers to the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise,
3. Subsection 31(2)(d) refers to 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.

Public interest test

The factors the Commission has considered when applying the public interest test have been detailed below.

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 or 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 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 existing licensees. These procedures and processes have been put in place to minimise the risk of an operator continuing to provide gambling services where they do not meet the required standards. This demonstrates to the public at large that they can have confidence in the Commission’s compliance assessment processes.
• There is an expectation of confidence in much of the Commission’s work, particularly regarding the external conversations that take place between the Commission and regulatory bodies, when discussing areas of a licensee’s compliance with the LCCP. It is the impact on this work of the Commission which is more likely to be affected by disclosure.
• The amount of information the Commission can release relating to our discussions about a licensees could lead to potentially non-compliant licensees altering their behaviour specifically to meet the Commission’s standards purely for assessment purposes. This in turn may impact on the Commission’s function of ascertaining a gambling operator’s fitness to carry out gambling activities.
• 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.

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 has in place to assess operators’ compliance with the LCCP and identify any operators who will be unable to comply with the licensing 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.

Looking at the nature of the request, the Commission considers that the relevant prejudice identified above would be caused to the Commission by disclosure and this weighs in the balance when considering the question of public interest. Public knowledge of the conversations between Commission staff and the ICO is very unlikely to contribute to a proper understanding of the regulatory activities of the Commission.

We consider that the public interest is better served by withholding the documents 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.

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

Internal Review Request

Could I also have an internal review please as I don't think you've established the prejudice that would occur.

Not do I think you've properly weighed the public interest, for example you've not considered the most complained about industry is gambling which is supposed to be regulated given it's toxic nature.

Also, you don't appear to have properly summarised the information held as the ICO have confirmed they hold information regarding information sharing and a collaboration on this issue.

Internal Review Response

I’m writing to you further to your Freedom of Information request dated 16/01/2023, which we responded to on 28/02/2023, and your subsequent request for an internal review received on 03/03/2023. We have now concluded our review and our findings are detailed below. This internal review was conducted by someone who was not involved in the processing of your original request.

Internal Review

In your initial enquiry you requested correspondence the Gambling Commission (GC) have exchanged with the ICO in the last 12 months. Specifically, information about how the ICO / GC work together on matters of unlawful marketing.

We responded, confirming that information falling within the scope of your request is held by the Gambling Commission. However, as this information relates to specific operators and conversations between the Commission and another regulatory body, we considered these records to be exempt in their entirety by virtue of s31 of the FOIA.

After reviewing your request and our response, I uphold our original decision to engage the S31 exemption.

Gambling operators are required to hold a licence from the Commission in order to offer facilities for gambling to customers located in Great Britain. The Commission goes through a licence application process as part of this and makes an assessment of suitability against criteria set out in the Act. Part 5 of the Gambling Act 2005 details the Commission’s statutory functions in relation to the licensing requirements. The Licence conditions and codes of practice (LCCP) set out the requirements all licensees must meet in order to hold a Gambling Commission licence. The specific LCCP requirements relating to open and transparent marketing is available on the Gambling Commission website.

As an industry regulator, our role is to consider if a gambling business has breached their licence conditions and we will take regulatory action where appropriate. We use evidence from a range of places, including from other regulators, to build cases against gambling businesses. In this instance, as the supervisory authority for Privacy and Electronic Communications Regulations (PECR) it is reasonable that there would be open communications between the ICO and the Gambling Commission on matters of unlawful or potentially unlawful marketing by gambling operators.

Information provided to us helps inform our work to raise gambling industry standards and make gambling fairer and safer. This information may be used by the Commission to inform our regulatory approach and determine whether any action may be necessary. If we have sufficient information about an issue with an operator that we feel needs to be pursued, we will commence a dialogue with the operator.

Regulatory action may only be imposed where the Commission thinks that a condition of a licence has been breached. Section 116 of the Gambling Act (opens in new tab) gives the Commission the power to review the performance of licence holders and the operation of licence conditions. The section provides for two different types of review.

Following a review under section 116(1) or (2) of the Act, the Commission may:

• decide to take no further action
• decide to give the licensee advice as to conduct
• decide to exercise its powers set out in section 117 of the Act (Regulatory powers).

Under section 117 of the Gambling Act (opens in new tab), it can:

• give the licensee a warning
• add, remove, or amend a condition to the licence
• suspend a licence
• revoke a licence
• impose a financial penalty.

Given that the information being requested contributes towards our assessment of licences suitability, I uphold our initial response that the regulatory functions of the Commission, would be prejudiced by disclosure of this information as follows:

i) Undermine the Commission’s ability to fulfil its statutory functions.

• The release of emails between the Commission and the ICO will have an impact on our statutory functions, by providing specific detail enabling licensees to understand what information is assessed and discussed between regulators.
• Once licensed, gambling operators are subject to ongoing compliance requirements and are subject to regulatory action should they fail to meet their licence requirements. Information provided by other regulators is collated as part of this process and is used to assess whether a person or entity is fit to hold a licence.
• The disclosure of the requested information would provide licensees with information that could be used to circumvent this assessment process and reduce the possibility of any non-compliance being detected by the Commission and the ICO. Licensees would have knowledge of the particular areas of the assessment that the Commission directs its resources towards, the particular form and type of evidence required and conversely what evidence does not appear to be relevant to the Commission’s assessment.
• The Commission’s concern is that this would result in licensees using the disclosed information to present information in a manner which would avoid further scrutiny or be targeted at the particular factors which those assessing compliance are considering for evidence of compliance with the published framework.
• By releasing these emails into the public domain, the Commission will be in a position where it will not be able to rely on the current process to assess compliance and would need to introduce further assessment processes which have not been disclosed to ensure that the assessment process remains robust and fit for purpose in order for the Commission to perform its statutory functions.

ii) Impact the Commission’s objective of raising overall standards in the gambling industry.

• The Commission also takes the view that disclosure is likely to reduce the overall standards in the gambling industry because releasing this information would undermine our relationship with other regulators. The information that they provide us, which informs part of the licence review process, is done so on the understanding that this will not be released into the public domain.
• If this information was disclosed, it would damage the relationship that we have formed with ICO and other regulators, which would result in them being less likely to share information with us in the future which would undermine our regulatory functions. Consequently, this will have a detrimental impact on the wider public.
• Establishing trust with other regulators, such as the ICO, is key to having open and frank exchanges. Disclosing the requested information without sufficient rationale would undermine this trust and make them less likely to collaborate in the future.

I acknowledge that there is a public interest in promoting the accountability and transparency of public authorities. Specifically in this case, highlighting the working relationships between the Gambling Commission and the ICO. However, disclosure of the information would be damaging to the Commission and the ICO as regulatory bodies, which ultimately serves to protect the wider public interest.

It is important that the public are assured that regulators are carrying out their statutory functions. In the case of the Gambling Commission, 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.

Ultimately, I consider that the public interest is better served by withholding the emails ensuring that consumers are protected through our cooperative work with the ICO, rather than releasing information about our processes which in our view will not benefit the public as a whole.

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.