Whether the Regulator was justified in refusing access under a number of exemptions to complaints submitted to it from 1 January 2017

15 April 2020

Background

In an FOI request dated 4 April 2019, the applicant sought access to copies of all complaints submitted to the Regulator from 1 January 2017 to 31 December 2018 inclusive. The Regulator’s decision of 2 May 2019 refused the request under sections 30(1)(a) (investigations carried out by an FOI body), 32(1)(a)(ii) (administration of any law), 35(1)(a) (confidential information), 35(1)(b) (information subject to a duty of confidence) and 37(1) (personal information) of the FOI Act. It also provided the applicant with a copy of its complaints management policy and related material.

The applicant sought an internal review on 7 May 2019, in which he said that any information identifying complainants could be redacted. The Regulator’s internal review decision of 31 May 2019 affirmed its decision and relied on section 36(1)(b) (commercial sensitivity) of the FOI Act in addition to the provisions referred to above. It also provided the applicant with an anonymised summary of numbers of complaints received to 31 December 2018. On 28 August 2019, the applicant applied to this Office for a review of the Regulator’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Regulator, the operator of the National Lottery i.e. Premier Lotteries Ireland DAC (PLI) and the applicant. I have also had regard to the contents of the records at issue and the provisions of the FOI Act.

Scope of the Review

I am not considering the Regulator’s application of section 37 (personal information) in this case given that the applicant has said that he is not seeking access to information which would identify a complainant. I will say, however, that in the case of some records, the content and context of the complaint are such that disclosure of even part of the text would be likely to identify the individuals concerned.

The review is confined to whether the Regulator’s decision to withhold the remainder of the records was justified under the provisions of the FOI Act.

Findings

It is well settled that the release of records under FOI is equivalent to placing them in the public domain. Furthermore, section 13(4) of the FOI Act requires that any reasons the requester gives for making his request (such as providing context for any further FOI requests he may make for related records) shall be disregarded.

The Regulator’s arguments regarding most of the exemptions claimed in this case overlap to a significant degree. I will summarise these arguments below. I will then consider whether the various exemptions apply based on these and the Regulator’s further, specific arguments in relation to sections 30(1)(a), 35(1)(a), 35(1)(b) and 36(1)(b). I will also take into account PLI’s arguments as to why section 36(1)(b) applies. I have also had regard to the applicant’s arguments regarding the various exemptions claimed.

The Regulator’s position

Section 9(2) of the National Lottery Act 2013 (the 2013 Act) requires the Regulator to ensure that the National Lottery is run with due propriety and to protect the interests of participants and the long term sustainability of the National Lottery. Section 9(4) of the 2013 Act provides that one of the Regulator’s functions is to monitor and enforce the operator’s compliance with the 2013 Act and the Licence under which the latter operates the Lottery (the Licence).

The Regulator is not the complaints body for the National Lottery. It does not address specific complaints regarding the National Lottery on behalf of complainants, which are a matter for PLI and the complainant. Any such complaints received by the Regulator are, with the complainant’s consent, sent to PLI to address. The Regulator’s role concerns the monitoring and enforcement of PLI’s compliance with its obligations in operating the National Lottery under the 2013 Act and/or the Licence. In line with its Complaints Management Policy, it can only use a complaint made to it to consider whether PLI has breached those obligations. The Regulator makes it clear to complainants that it cannot address specific complaints, award compensation, compel PLI to make any payments, or influence or alter a decision falling within PLI’s remit. Thus, while complainants may seek a specific benefit or resolution when making a complaint to the Regulator, and while some believe that they may benefit from their complaints, complainants do not actually stand to tangibly benefit directly due to the Regulator’s limited role. The overwhelming majority of complainants are aware of this.

The Regulator is funded by a fixed levy payable by PLI and has Ministerial approval for 10 staff. Such limited financial and human resources means that the Regulator is unable to replicate the actual day to day experiences of players in-store and online. Accordingly, it must adopt a risk-based approach to monitoring and enforcing compliance. Since the Regulator’s office was established in 2014, the receipt of unsolicited and unrestricted complaints has supplemented its regulatory oversight function at no material cost. Complainants often provide contemporaneous evidence, such as photographs, transaction and financial details etc. regarding possible issues with the National Lottery that is not available to the Regulator given its limited resources. Complaints thus may indicate when and where compliance interventions are necessary and whether enforcement action under the 2013 Act may be required. They have resulted in the Regulator carrying out a number of compliance interventions regarding PLI’s operations.

The Regulator’s Complaints Procedure and internal Complaints Management Policy are on its website. These say that all complaints will be treated as confidential and not disclosed to third parties otherwise than in accordance with the law or a complainant’s consent. The Regulator also confirms this in acknowledgments sent to complainants.

Some persons have made many complaints. In general, complaints may contain sensitive information that would reveal a complainant’s identity to third parties who are familiar with his or her personal circumstances, concerns, playing habits, writing style, handwriting, etc. Thus, if the records were to be released, the complainant’s identity could be discovered in the context of gambling. In the Regulator’s experience, this is a sensitive issue for many individuals and complainants. Complainants thus take comfort from the fact that the Regulator treats their complaints as confidential.

The Regulator publishes the number and categories of complaints it receives on its website along with details of how complaints may be made. It has no express power to publish specific complaints in the discharge of its functions. However, it publishes certain information regarding its activities that it considers not to breach any agreements it has with third parties or that might prejudice the provision of further complaints. Its research on certain complaints bodies indicates that these publish anonymised summaries/common issues with outcomes, and/or numbers and categories of complaints rather than the original text of the complaints. While the applicant refers to the National Transport Authority’s (NTA’s) publication of details of complaints about taxi drivers, the Regulator says that the NTA is the complaint body for such matters, that there are numerous taxi drivers as opposed to a single National Lottery operator and that the NTA does not identify the complainant and includes the outcomes of complaints. The NTA’s role and powers differ to those of the Regulator.

Thus, the release of complaints under FOI even with personal information redacted could reasonably be expected to dissuade current or prospective complainants from complaining, or communicating fully and frankly, for fear that they may be identifiable from the facts or circumstances contained in complaints. This will impact adversely on the quality of intelligence available to the Regulator, undermine its Complaints Procedure and impact on its ability to effectively and efficiently monitor compliance through interventions and to establish whether enforcement action under the 2013 Act may be required. Thus, the Regulator may have to resort to more formal, slower and more costly ways of identifying areas of risk. Any adverse impact on the effective performance of the Regulator’s statutory functions and objectives is not in the public interest.

General comments in relation to the Regulator’s arguments

While the 2013 Act may not require the Regulator to publish complaints it has received and while the Regulator is not the complaints body per se for all matters concerning the National Lottery, these factors do not of themselves mean that the records are exempt under the FOI Act. Similarly, I am not bound in this review by whether or not other complaints bodies publish such material (whether in full or in summary form) or because some do so outside of FOI.

I should also say that I fully accept that the Regulator has specialist knowledge and expertise in matters relating to the regulation of the National Lottery. While I have given due weight to this in considering the arguments, this does not, in itself, mean that I am bound to find that the records should be withheld.

Section 30(1)(a) – tests carried out by an FOI body/procedures for their conduct

Section 30(1)(a) provides that a request may be refused if granting it could, in the opinion of the head of the FOI body, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.

In other words, the provision envisages two potential types of "prejudice" or harm: (i) to the "effectiveness" of the tests, etc. (i.e. the ability of the test, etc. to lead to a result of some kind) or (ii) to the procedures or methods employed for the conduct of such tests, etc. Where an FOI body relies on section 30(1)(a), it should identify the potential harm that might arise from disclosure, show how the "prejudice" or harm might be caused, and consider the reasonableness of any expectation that the harm will occur. 

I take it that it is the examination and investigation of complaints that the Regulator has in mind in citing this exemption.

In relation to this exemption in particular, the Regulator refers to this Office’s decision in Case No 99273. The Commissioner found that statements made by health professionals in the course of an investigation were given in confidence and that disclosure would cause similar professionals in future investigations to be less frank in their statements. He found that this outcome could reasonably be expected to prejudice the future use of procedures of the kind adopted in that investigation, in which case the public body would have to resort to more formal procedures which would be slower and more costly.

A decision made by the Commissioner in one case does not necessarily set a precedent that must be followed in all similar cases. Rather, each case is considered on its own facts and circumstances. I see the circumstances of the two cases as entirely different and so I consider the decision in Case No 99273 to have no relevance to this review. Here, the complaints overall concern an entity i.e. the National Lottery and the applicant has excluded any details in them that would be likely to identify the complainants. The statements the subject of review in Case No 99273 concerned allegations made about various identifiable health professionals. It seems to me that the entirety of the details in the statements would be very sensitive, personal and particular to the health professionals concerned.

There is no provision in the Act to exempt the release of information on the grounds that it might be inaccurate or unverified, although these matters could possibly be factors relevant to weighing the public interest in release. It seems to me that the Regulator’s arguments on section 30(1)(a) could be based on its expectations of harm to its complaint handling arising from disclosure of personal information, thus making complainants reluctant to lodge future complaints. It is not clear to me why any person who makes a complaint to the Regulator could reasonably be expected to be deterred from making similar complaints in future if details of their complaint were to be placed in the public domain with all personal information redacted from it as is the case here. It is not clear to me from the submissions or from the records themselves how release of the substance of the complaints (i.e. the remaining details) could reasonably be expected to prejudice any examinations, investigations etc. conducted by the Regulator or methods that it uses to carry these out. I find that section 30(1)(a) does not apply; therefore, there is no need for me to consider the public interest test in section 30(2).

Section 32(1)(a)(ii) – enforcement of any law

Section 32(1)(a)(ii) is a discretionary exemption that applies where access to the record could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law. Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, explain how releasing the particular record could reasonably be expected to cause the harm which it has identified, and also consider the reasonableness of any expectation that the harm will occur. A mere assertion of an expectation of harm is not sufficient.

It is the Regulator’s position that granting the request could reasonably be expected to prejudice or impair its enforcement of, compliance with or administration of the 2013 Act. Again, it seems to me that the Regulator’s arguments in this regard derive from the harms it envisages arising from the disclosure of personal information about complainants, which does not fall for release in this case. As I have said already, I have no reason to take the view that a complainant could reasonably be expected to be deterred from making future similar complaints as a result of placing the remainder of their complaints in the public domain. I see no basis to find that disclosure of the remaining information could reasonably be expected to result in the harms envisaged by the Regulator. I find that section 32(1)(a)(ii) does not apply to the remainder of the complaints. Therefore, there is no need for me to consider the limited public interest test in section 32 of the FOI Act.

Section 35 – confidential information

Section 35(1) provides for the mandatory refusal of an FOI request for a record that, generally speaking, contains information given in confidence or contains information subject to a duty of confidence. However, section 35(2), which dis-applies section 35(1) in certain circumstances, must be considered at the outset.

Section 35(2) – provision dis-applying section 35(1)

Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider."

Most of the records comprise emails and letters from complainants but some parts comprise emails sent by an FOI body in relation to complaints made. The complainants are clearly not service providers within the meaning of the FOI Act. Accordingly, it is possible for section 35(1) to apply to the entirety of the remaining parts of the records. 

Section 35(1)(a) – information given in confidence

Section 35(1)(a) must be applied to a record containing information that was:

• given to a public body in confidence and,
• on the understanding that it would be treated by it as confidential and,
• in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

In addition to the various other arguments already made, the Regulator says that the circumstances of this case are similar to those in the Commissioner’s decision in Case No 99097 and that the records at issue here should also be found to be exempt under section 35(1)(a). In particular, the Regulator notes the Commissioner’s finding that the records concerned private or secret matters and that the authors had a reasonable expectation of confidential treatment, gave the information voluntarily and did not stand to benefit directly in any tangible manner. He found that violating the authors’ reasonable expectation of confidentiality by disclosing the records is likely to deter them and others from making similar submissions in the future.

Case No 99097 concerned letters referring to the requester in that case by parents who were unhappy with a report of an Inquiry about child sexual abuse in swimming. I agree with the applicant’s view that there is no similarity between the circumstances of the two cases. It seems to me that even in the absence of specific identifiers such as name, address, etc., the content and context of the letters the subject of Case no 99097 would be so particular and sensitive that these would be likely to identify the authors.  This review does not extend to any details which would identify those who had complained to the Regulator. In my opinion, the decision in Case No 99097 is of no relevance to this review.

While it is the case that care would have to be taken to ensure that no details were released from any complaint that would lead to the identification of its author, I have no reason to believe that disclosure of the complaints with all personal information redacted would be likely to prejudice the same or other complainants from making complaints in future. It follows that I do not consider that the third test of section 35(1)(a) has been met in this case. All four tests of section 35(1)(a) must be met in order for the exemption to apply and I find that section 35(1)(a) does not apply to the remainder of the complaints. There is no need for me to consider the public interest test in section 35(3) of the FOI Act.

Section 35(1)(b) – information subject to a duty of confidence

Section 35(1)(b) must be applied to a record where granting it would constitute a breach of a duty of confidence provided for by an enactment other than by certain provisions of particular enactments specified by the Act, an agreement or otherwise by law (i.e. an equitable duty of confidence).

The Regulator says that, in the circumstances described already, it owes the complainants a duty of confidence provided for by a provision of an agreement (that is, by having regard to the 2013 Act, the Licence and its Complaints Management Policy) and also a duty of confidence provided otherwise by law.

It refers to this Office’s decision in Case No 180102 where the applicant sought access to records relating to Trinity College Dublin’s (TCD’s) acquisition of the papers of a playwright. TCD argued that a letter described the agreement reached between the parties and provided that details of that agreement will remain confidential. The Commissioner’s decision comments on the understanding of confidentiality that underpinned all interactions between the parties from the outset and notes that this understanding was formally expressed in the letter. The decision found that the letter can be considered an agreement providing for a duty of confidence within the meaning of section 35(1)(b).

The Regulator refers to the assurances of confidentiality regarding complaints as set out on its website and in its Complaints Management Policy. It says that the wording of these assurances and its own established practices are more definitive than those which were the basis of the decision in Case No 180102. It says that, accordingly, prospective complainants expect and understand that their contacts would be treated as confidential, which is evident from the sensitive nature of information that complainants include in their contacts with the Regulator. Its position is, thus, that it owes complainants a duty of confidence provided for by a provision of an agreement.

I do not accept that the wording of the Regulator’s policies and the practices it employs mean that there exists in this case a duty of confidence provided for by a provision of an agreement. It seems to me that this element of section 35(1)(b) is concerned with more formal arrangements between parties, such as those in Case No 180102. I do not accept that disclosure of the complaints made to the Regulator would constitute a breach of a duty of confidence provided for by an agreement.

A duty of confidence provided for "otherwise by law" encompasses an equitable duty of confidence. When considering the existence of an equitable duty of confidence, this Office has regard to the three elements of what are generally known as the "Coco" tests (Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41):

"First, the information itself … must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

In arguing that the above tests are met and that complaints are imparted to it in circumstances imposing an obligation of confidence, the Regulator refers to the assurances of confidentiality it gives to complainants and prospective complainants; the purposes for which complaints are provided (i.e. PLI’s compliance with the 2013 Act and the Licence) and its functions under section 9(4) of the 2013 Act. It says that it does not have the complainants’ consent to disclose the complaints to any third party except to PLI.

I accept that, in the circumstances of this case, any information that would identify an individual who had complained to the Regulator would meet the three tests above and thus be subject to an equitable duty of confidence. However, where such information does not fall to be released from the records, I am not satisfied that the remaining details of the complaints are imparted to PLI by complainants in circumstances imposing an obligation of confidence on the Regulator (second test). All three Coco tests have to be met in order for there to exist an equitable duty of confidence. It follows that I do not accept that the Regulator owes the complainants an equitable duty of confidence in relation to the remaining details.

Having regard to the above, I find that the remainder of the records are not exempt under section 35(1)(b) of the FOI Act.

Section 36(1)(b) – material financial loss/prejudice to competitive position

Section 36(1)(b) must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.

The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.

The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption.  However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their competitive position. Furthermore, a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. In the Supreme Court case of Sheedy v the Information Commissioner [2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35 Kearns J. stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”. 

The Regulator argues that while it publishes certain anonymised summary information concerning complaints, disclosing further details will be commercially advantageous to PLI’s competitors and could prejudice PLI’s competitive position. It refers to the various forms of competition that PLI faces and to this Office’s findings in Case No 170248 that reputational damage is relevant to the consideration of section 36(1)(b). It says that it is not obvious solely from a complaint whether it is valid or not and, in any event, PLI’s competitive position could be prejudiced by the disclosure of both types of complaints. It says in such circumstances, the records qualify for exemption under section 36(1)(b) of the FOI Act.

PLI says that it is not subject to FOI. It says that there has been a significant growth in influence of off-shore and bet-on-lottery competitors who are not subject to the same regulatory requirements as PLI and whose complaints would not be subject to similar disclosure.

PLI says that it was not consulted about or given an opportunity to reply to the majority of the complaints. It says that disclosure of the complaints will give an unbalanced and subjective picture of events. It says that complaints can often be false or fraudulent or comprise simple or unsubstantiated opinions, or can be inaccurate or unbalanced. It goes on to say that complaints can relate to matters that have since been resolved or which were resolved at the time of the complaint, to private matters completely unrelated to PLI or the National Lottery or poor customer experience as opposed to “alleged illegality” and do not take account of the passing of time or subsequent improvements. It says that disclosure of the records in such circumstances is extremely likely to cause substantial and unwarranted damage to its reputation, which it says is of the highest importance. It also refers to various decisions in which this Office recognised reputation as relevant in the consideration of section 36(1)(b). It says that its unregulated competitors would misleadingly draw attention to the complaints to lure away the National Lottery’s existing customers, which will in turn impact on ticket sales and cause it material financial loss and prejudice its competitive position.

The applicant says that the Regulator has adopted a sweeping generalisation that all of the complaints made to it must contain commercially sensitive information and that both it and PLI are over-exaggerating the potential harm arising from release of the records. He says that complainants could choose to publicise their issues on social media, regardless of whether they are valid or vexatious, etc. He suggests that each complaint should be assessed on its individual merits to determine if its disclosure could reasonably be expected to result in a material loss to PLI. He says that in some cases the harm could theoretically result from PLI’s handling of an initial complaint (rather than, I presume, from the details actually contained in the complaint). He says that not all of the complaints can contain information that could reasonably be expected to result in a material financial loss to PLI and, in this respect, says that the subject of the complaint itself could arguably pose a bigger risk. He does not accept that the disclosure of complaints not already in the public domain would inherently be commercially advantageous to PLI’s competitors. He says that the Regulator’s argument regarding the prejudice arising to PLI’s competitive position by the disclosure of invalid complaints does not do justice to the general public’s common sense. He also says that the low number of complaints relative to the number of purchases of National Lottery products provides further evidence of the lack of potential to cause harm by disclosure of the complaints concerned.

While complainants may indeed use social media to vent their concerns, this does not of itself mean that such posts could not cause harm to PLI or that the records held by the Regulator in this case are not exempt under the FOI Act. On the other hand, while I accept that releasing the records will not give the public a full picture of the ultimate outcome of the complaints, this is not enough to support a finding that the records are exempt. Section 36(1)(b) applies where either of the tests within it is met. In particular, there is a low standard of harm for the provision to apply on the basis that disclosure of the information could prejudice an entity’s competitive position in the conduct of its business. It is not relevant whether the complaints made to the Regulator are few compared to the number of National Lottery products bought. The provision could apply to a single complaint made. As set out above, it is also not necessary for a complaint to contain on its face what might be considered to be commercially sensitive information. What is relevant is the nature of the harm which might be occasioned by its release. While I cannot disclose the content of the complaints, I can say, having examined them carefully, that they are quite specific and detailed. Of their nature, they contain allegations and criticisms.

I have accepted in other cases that while PLI is the sole operator of the National Lottery, it is subject to direct market competition from competitors (see Case No 170248, Case No 180257 and Case No OIC-53377-L3M2J2 (formerly Case No 190124)). As the Regulator has said, I have also accepted that reputational damage is relevant to the consideration of section 36(1)(b). I accept that disclosure of the remainder of the records will provide considerably more detail about the complaints received by the Regulator than what it has already placed in the public domain about them.

The fact that PLI is regulated may give it an opportunity to present itself as a responsible provider of lottery games in a way that its competitors cannot. I note the applicant’s view that disclosure of the records has potential to do more good than harm. I also note his comments about the general public’s ability to distinguish between valid and invalid complaints. In this respect, information is not exempt simply because its release may cause a misleading impression amongst the general public. Nonetheless, I accept that there is a risk that the complaints, including any made to the Regulator further to PLI’s handling of direct complaints to it, could be used by PLI’s competitors in a way that could affect PLI’s reputation amongst  persons who usually play Lottery games and encourage them to play the games offered by competitors. I find that section 36(1)(b) applies on the basis that disclosure of the records could prejudice PLI’s competitive position in the conduct of its business.

Exceptions to section 36(1)(b) - sections 36(2) and (3)

I do not consider section 36(2) to be relevant in this case and the applicant has not argued that it is. In relation to section 36(3) and the matter of where the public interest lies, I have had regard to the comment by the Supreme Court in the Rotunda case that a public interest is "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law". Although this comment was made in relation to another provision of the FOI Act, I consider it to be relevant to consideration of public interest tests generally. It is also the case that a requester’s private interest in obtaining records – such as that the records may provide context for any further FOI requests he may make for related records – cannot be construed as a public interest for the purposes of the FOI Act.

The Regulator’s decisions outline various public interests it says it took into account in relation to the exemptions relied on, some of which are repeated in its submission to this Office. I summarise the details here as well as those public interest arguments that have particular relevance to information that is exempt under section 36(1) of the FOI Act.

The Regulator says that there is a public interest in revealing how an FOI body performs its functions such that the general public can assess whether those functions are being discharged properly, and in increasing the openness and transparency of decisions taken by FOI bodies. The Regulator says that disclosure of complaints alone reveal nothing about these matters. It says that these public interests are sufficiently served by its provision to the applicant of its Complaints Management Policy and by its publication of summary information regarding complaints received. It also says that the publication of such summary information sufficiently serves the further public interest relating to openness in the use of public funds. It says that this should not be given   particular weight in the circumstances in any event because, although it expends resources dealing with complaints, its operations are funded by a proportion of PLI’s ticket sales rather than by public monies. 

The Regulator says that there is a public interest in protecting the interests of participants in the National Lottery and that this is entitled to significant weight having regard to the privacy rights of complainants and the importance of it continuing to receive unsolicited and unrestricted complaints to enable it to perform its statutory functions. It says that this public interest is promoted by ensuring that complaints remain confidential and by its publication of summary information. It says that given its specialist knowledge and expertise, the Commissioner should give adequate weight to its view.

It also says that there is a “public interest in disclosure on the basis of procedural fairness”. In this regard, it says that it may not be obvious which complaints are valid, and that they all comprise the complainants’ one sided views before they have been put to PLI as the affected party in accordance with fair procedures and natural justice. It notes that the request does not seek PLI’s responses, which I take to be an argument that release of the complaints alone does not provide contextual information regarding the validity of the complaints concerned, outcomes and so on. It says that complaints are often unsubstantiated or abandoned before commencement or completion of the complaints process. It says that their release would be unfair, prejudicial to PLI and in breach of fair procedures and natural justice.

It also says that there is a public interest in protecting the long term sustainability and successful operation of the National Lottery. It reiterates its previous points about fair procedure. It says that disclosure could result in excessive risk that the National Lottery’s reputation could be damaged which would impact on its long term sustainability, sales in general and contributions to good causes. It also says that there is a public interest in persons being able to conduct commercial transactions with FOI bodies without fear of suffering commercially as a result.

This Office’s Investigator asked the Regulator to comment, in particular, on the weight of the public interest in promoting openness and accountability regarding complaints made concerning the operation of the State asset that is the Licence. She also noted the very general nature of the information published by the Regulator about the complaints made to it.

The Regulator says that the National Lottery is not operated by a State agency but a private company. The Regulator says that it is not funded by public monies but by a levy imposed on PLI. It says that it is not clear that there is a public interest in promoting openness and accountability regarding complaints made about the operation of the National Lottery on the lines suggested by the Rotunda case. It says that if there is such a public interest, it is not entitled to particular weight in the overall circumstances and that in any event its arguments about the public interest in the use of public funds are relevant.

In summary, the Regulator’s overall position is that the various public interests in this case are served adequately by the information it has provided to the applicant and other information that it publishes.

PLI says that having regard to its arguments as to why on their face the records should be found to be exempt, the public interest weighs in favour of protecting its interests as a private entity.

The applicant says that there is limited public awareness of the Regulator and that anything highlighting its complaints facility would be more likely to encourage complainants to come forward then to deter them. He says that a basic premise of the 2013 Act, in recognising a public interest in protecting the National Lottery’s interests (a public interest that I recognised in Case No 180257 and which I said also extended to protecting PLI’s interests) is that all threats to it are external. He said that the 2013 Act seems to discount the operator’s potential to be a source of a potential harm to it. He says that while he has no basis to question PLI’s bona fides as operator, the National Lottery’s integrity is also dependent on it being operated to the highest standards.

He refers to PLI’s recent admission that a number of jackpots were omitted from scratch cards as an example of how the National Lottery’s interests may be damaged by the operator, rather than by a third party or the release of information. He says that at this stage it is not clear if the Regulator had prior knowledge of this matter. He says that the greatest amount of transparency should be permitted regarding the National Lottery’s operation so as to promote public confidence in it and also protect the Lottery’s own interests. He accepts that these outcomes should not be compromised by the disclosure of material that would have the potential to cause harm and says that determining this may often require a fine balancing act. He says that while in his experience the Regulator does not take such an approach, it is open to this Office to do so.

The applicant says that complaints to the Regulator arising from a complainant’s dissatisfaction with how PLI dealt with a complaint made directly to it are in effect a form of appeal. He says that, while harm could be caused to PLI by disclosure of such complaints, there is a greater public interest in their release in particular.

He says that while overall the records do not give any insight into the Regulator’s role of ensuring PLI’s compliance with the terms of its licence, they would provide context for any further FOI requests he may make for records relating to the Regulator’s response to the complaints. He also says that there is a public interest in the public being aware of the problems that players of National Lottery products are experiencing, particularly where such persons have gone to the trouble of making complaints to both PLI and the Regulator. He says that, in his view, PLI attempts to suggest that all complaints are groundless if not vexatious.

Finally, he says that the Regulator’s publication of limited of information about the complaints it has received should not be regarded as some type of mitigation. He says that releasing the records would provide transparency, which he says has potential to do more good than harm in reassuring the public about the integrity of the National Lottery and separately and jointly about its operator, PLI.

While it is undoubtedly useful to create awareness about the Regulator’s role, this is not necessarily a public interest of the sort recognised in the Rotunda judgment. Furthermore, the complaints of themselves contain little information about the Regulator’s carrying out of his functions. I am not persuaded that disclosure of the remainder of the complaints to the world at large is a proportional and appropriate means of achieving such an outcome. Furthermore, while it may be of interest to the public to know the details of the particular complaints captured by this request, this does not of itself amount to a public interest as contemplated by the Rotunda judgment.

In addition, it must be assumed that the 2013 Act adequately protects the interests of the State asset that is the National Lottery. I do not consider it appropriate to direct release of the records on the sole basis that the operator has potential to be a source of a potential harm to those interests. I say this having regard to the entirely separate matter of the recent jackpot issue, with which these records are not concerned.

It seems to me that there is a public interest in this case in promoting openness and accountability regarding how the Regulator carries out its functions, particularly in ensuring that PLI complies with its obligations in operating the National Lottery. Generally speaking, this public interest is entitled to considerable weight given that the National Lottery is a valuable State asset. While the applicant may disagree, in my view it has been served to an extent by the Regulator’s publication of certain, albeit limited, information about the complaints it has received. I accept that the public interest would be served to a further extent by disclosing the particular complaints within the scope of the request (that is, except for any personal information in them).

However, I am not persuaded that disclosure of these complaints, including those made on the basis of dissatisfaction with PLI’s handling of a direct complaint, would further serve this public interest to any significant extent. In this regard, I note the Regulator’s position that not all complaints are valid and that this may not be obvious from a complaint itself. I also note that the Regulator does not have any role in relation to any complaints received, except insofar as they may concern its role of ensuring that PLI complies with its obligations under the Licence and 2013 Act. The records do not reveal how the Regulator carries out its functions in this regard or enable any analysis of the appropriateness of the Regulator’s views and actions. They do not disclose details of any enquiries made by the Regulator, PLI’s responses, any further steps that the Regulator may have taken accordingly or the overall outcomes of the matters. Furthermore, even if the applicant makes a request for such records, it is not necessarily the case that all details of the underlying complaints would be necessary to provide context for their contents. 

The records are not concerned with the expenditure of public monies and in the circumstances I attach no significant weight to the public interest in their release to ensure accountability in this regard.

On the other hand, section 36(1)(b) itself reflects the public interest in the protection of records containing information that could prejudice a private company's competitive position in the conduct of its business. This Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. However, while PLI is indeed a private company, it is the only one that operates the National Lottery, which it does on behalf of the State. This is a particularly relevant consideration in this case and reduces the weight of the public interest in withholding the records. However, I am not persuaded that disclosure of the complaints will enable any great insight into PLI’s operation of the National Lottery given that the individual allegations may not be valid in the first place and indeed, it would be difficult to assess their validity from their face.

Furthermore, as I said in Case No 180257, the fact that the Oireachtas passed the 2013 Act indicates that there exists a true public interest in protecting the interests of the National Lottery and by extension those of PLI. It seems to me that disclosure of complaints, which may not necessarily be valid and which regardless could be used by PLI’s competitors to attract customers away from the National Lottery would not serve these public interests. This is notwithstanding the fact that PLI may enjoy a certain advantage over those competitors by virtue of being regulated.

Having considered the matter very carefully, I find that, on balance, the public interest weighs in favour of refusing access to the remainder of the records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Regulator’s refusal of the records. I find that they are exempt under section 36(1)(b) of the FOI Act and that the public interest in withholding them outweighs the public interest in releasing them in the circumstances of this case.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

 

Elizabeth Dolan

Senior Investigator