Remote gambling operators - customer interaction documentation
Request
I am writing to make an open government request for all the information to which I am entitled under the Freedom of Information Act 2000. Please send me all documents relating to customer interaction guidance provided to remote gambling operators licensed by the Gambling Commission between April 14, 2022 - February 17, 2023 inclusive: Specifically, I request the following to be sent:
- All papers from Gambling Commission board meetings relating to customer interaction for remote gambling operators and affordability checks
- All internal emails from the chief executive, Mr Andrew Rhodes, on, or containing, the subject of customer interaction for remote gambling operators or affordability checks
- All emails from the Gambling Commission to the British Horseracing Authority (BHA), Arena Racing Company (Arc), the Jockey Club, Racecourse Association (RCA) and Racecourse Media Group (RMG) concerning the government's white paper into the review of the 2005 Gambling Act, affordability checks and customer interaction for remote gambling operators
I would like the above information to be provided to me electronically, or as paper copies if this is not possible.
If this request is too wide or unclear, I would be grateful if you could contact me as I understand that under the Act, you are required to advise and assist requesters. If any of this information is already in the public domain, please can you direct me to it, with page references and URLs if necessary.
If the release of any of this information is prohibited on the grounds of breach of confidence, I ask that you supply me with copies of the confidentiality agreement and remind you that information should not be treated as confidential if such an agreement has not been signed.
I understand that you are required to respond to my request within the 20 working days after you receive this letter. I would be grateful if you could confirm in writing that you have received this request.
Response
Thank you for your enquiry relating to customer interaction guidance provided to remote gambling operators licensed by the Gambling Commission. This request has been processed under the Freedom of Information Act 2000 (FOIA).
The Gambling Commission responses to your specific enquiries are as follows:
1. All papers from Gambling Commission board meetings relating to customer interaction for remote gambling operators and affordability checks
I can confirm that information falling within the scope of this part of your request is held by the Gambling Commission. However, this information forms part of the ongoing work feeding into the development of the Commission’s Gambling Act Review advice to the Department for Digital, Culture, Media & Sport (DCMS). This information will be published, alongside other supporting information following the release of the White Paper.
Section 22(1) of the FOIA (“information that is intended to be published in the future”) provides that information is exempt if:
- the information is held by the public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not),
- the information was already held with a view to such publication at the time when the request for information was made,
This is a qualified exemption; therefore, the Commission must consider whether the public interest in maintaining the exemption is greater than the public interest in disclosing the requested information.
Arguments in favour of disclosure
It is recognised that there is a legitimate public interest in promoting the accountability and transparency of public authorities and in Government Departments providing information they hold that falls within the scope of an FOI request as quickly as possible.
Arguments in favour of maintaining the exemption
However, this needs to be balanced with the public interest in the Commission ensuring the maximum time/cost effectiveness; providing this information in response to a FOI request is not the most time/cost effective way of placing this information in the public domain when it will be published in due course.
Further to this, the Gambling Act Review remains under ongoing discussion and live deliberations continue between the Gambling Commission and the DCMS on this matter. Premature publication of this data could lead to an incomplete and confusing picture emerging and would be likely to cause prejudice to ongoing work of the Gambling Act Review, particularly where there is an intention to publish in the future.
Weighing the balance
Having considered the above factors, the Commission is of the view that the balance of the public interest lies in maintaining the exemption. There is no outstanding public interest in releasing this information prior to its intended publication. Having weighed these issues, the view of the Commission, is 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 the future of the Gambling Act Review.
2. All internal emails from the chief executive, Mr Andrew Rhodes, on, or containing, the subject of customer interaction for remote gambling operators or affordability checks
In order to fulfil this part of your request we performed a search of Gambling Commission email systems for emails from the Gambling Commission’s chief executive, Andrew Rhodes, between the dates April 14, 2022 - February 17 2023, as specified in your request.
These search results were then manually reviewed to retrieve those emails on or containing, the subject of customer interaction for remote gambling operators or affordability checks following the updated guidance that was issued on September 12, 2022.
Please see the attached table containing the information we are able to provide falling within the scope of this part of your request.
Some of the information contained within these emails has been determined to be exempt under the FOIA and is therefore not being disclosed. The exemptions engaged and considerations for applying them are as follows:
Legal Professional Privilege – Section 42
Section 42(1) provides an exemption under the FOIA for Legal Professional Privilege (LPP). Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information. LPP protects the confidentiality of free and frank communications between a legal advisor and a client.
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 that the Commission is being open and honest with the information it holds so that it can be held to account.
There is public interest in knowing what legal advice is being obtained in relation to customer interaction, so the public can be assured of the professionalism and that lawful advice is being provided,
In favour of maintaining the exemption:
However, there is a strong public interest in Commission staff being able to engage in full and frank legal advice without concerns that this advice and the surrounding discussions will be disclosed.
Disclosure may hinder the candid nature of these communications in the future, which would be damaging to decision making, which is not in the public interest.
Ultimately, disclosure may have a negative impact upon the frankness of legal engagement and may even have an impact upon the extent that legal advice is sought.
Weighing the balance:
The Commission acknowledges the need for openness and transparency regarding the information is holds. However, there is a greater argument in favour of safeguarding the communications between clients and their legal advisors to ensure access to full and frank legal advice. The advice provided is the opinion of a legally qualified individual and is not a definitive statement in law.
Disclosure of this information would infringe on the rights of Commission staff to gain legal advice on matters which ultimately could impact on consumers.
On balance, we consider that the public interest is better served by withholding the documents ensuring that the provision of legal advice is safeguarded.
Government policy and prejudice to the effective conduct of public affairs – Section 36
Section 36 of the FOIA provides that, information is exempt if, in the reasonable opinion of a qualified person, disclosure of the information under this Act would, or would be likely to, inhibit
- the free and frank provision of advice, or
- the free and frank exchange of views for the purposes of deliberation.
The view of the qualified person is that disclosure in this instance would be likely to inhibit the ability of Commission officials and others in expressing views and deliberating issues relating to the key land-based aspects of the Gambling Review which would in turn impair the quality of decision making and the provision of advice to DCMS.
Public Interest Test
Having acknowledged that some of the information within the scope of your request is exempt from disclosure, section 36 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.
Factors 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.
Further to this, the quality of advice and the content of deliberations by officials may improve if there was an expectation of the information being made publicly available.
Factors against disclosure:
Disclosure of the material falling within the scope of your request would be likely to prejudice free and frank communications and advice between Commission officials.
The Gambling Act Review has yet to be published and engagement continues between the Gambling Commission and the DCMS on this matter. Officials also consider:
- there is a need for a safe space for Commission officials to have free and frank exchanges, in order for the Commission to assure itself, and therefore Government, that decisions are being made effectively.
- disclosure would impact the ability of Commission colleagues to discuss live issues in the future, exchange informal views and advice and reach decisions, free from external interference and distraction.
- premature publication of this information could lead to an incomplete and confusing picture emerging and would be likely to cause prejudice to ongoing work of the Gambling Act Review, particularly where there is an intention to publish in the future.
Weighing the balance
Whilst the Commission aims to be open and transparent, there is a need to preserve the confidentiality of developmental discussions, and to be mindful of the sensitivities of information that is held. Further to this, there is no outstanding public interest in releasing this information whilst the review is still ongoing.
Having weighed these issues, the view of the qualified person is 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 the future of the Gambling Act Review.
Court records – Section 32
Section 32(2) Information held by a public authority is exempt information if it is held only by virtue of being contained in—
a. any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration
This is an absolute exemption and therefore does not require public authorities to carry out a public interest test when considering disclosure.
This exemption category is intended to allow the courts to maintain judicial control over access to information it holds in relation to court proceedings unless and until the relevant documents become historical records. This includes giving courts control over what information can be disclosed without prejudicing any legal proceedings or infringing any person’s legal rights.
3. All emails from the Gambling Commission to the British Horseracing Authority (BHA), Arena Racing Company (Arc), the Jockey Club, Racecourse Association (RCA) and Racecourse Media Group (RMG) concerning the government's white paper into the review of the 2005 Gambling Act, affordability checks and customer interaction for remote gambling operators
Please see the attached information we are able to provide falling within the scope of this part of your request.
We have redacted from all of the attachments information relating to identifiable individuals that would constitute personal data.
The Data Protection Act 2018 requires personal data to be processed lawfully, fairly and in a transparent manner in relation to the data subject. It is the view of the Commission that disclosing the personal information within the attached documents would constitute the disclosure of personal data and would contravene this principle.
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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