Premier Lotteries Ireland DAC and the Office of the Regulator of the National Lottery (ORNL)(FOI Act 2014)

• Judgment Date: 19 December 2018
• Case Outcome: The Senior Investigator affirmed the decision of the ORNL.
• Court: Information Commission
• Record Number: 180191
• Respondent: Office of the Regulator of the National Lottery

Whether the ORNL was justified in its decision to grant partial access to correspondence between ORNL and the applicant relating to alleged upselling of National Lottery games

19 December 2018

Background

This review arises from a decision taken by the ORNL to release certain records on foot of a request to which section 38 of the FOI Act applies. Section 38 applies where the FOI body concerned has, at some stage in the decision-making process, considered that the record(s) in question qualify for exemption under any of sections 35, 36 and 37 of the FOI Act (regarding, respectively, confidential, commercially sensitive, or personal information) but that the record(s) should be released in the public interest.

Where section 38 applies, the body is required to notify affected third parties before making a final decision on whether or not the exemption(s) considered to apply should be overridden in the public interest. The requester or affected third parties, on receiving notice of the final decision of the FOI body, may apply directly to this Office for a review of that decision.

In this case, the ORNL received a request on 9 March 2018 for access to records of "all correspondence/communications/minutes of meetings ... between the RNL and the National Lottery on the issue of sales agent staff "upselling" lottery games". The ORNL notified the applicant of the request and provided copies of redacted records that it proposed to release in the public interest. In its submission of 13 April 2018 the applicant proposed additional redactions to three of the records under section 35 and 36.

Having considered the applicant's submission, the ORNL issued its decision on the request on 26 April 2018, following which the applicant sought a review by this Office of that decision in respect of certain parts of two of the records. In its application for review, it identified specific parts of the two records that it considered should be withheld.

I have decided to conclude this review by way of a formal, binding decision. In conducting this review I have had regard to the contents of the records at issue. I have also had regard to correspondence between the ORNL and both the applicant and the requester on the matter, and to communications between this Office and the applicant, the ORNL, and the requester in relation to this review.

Scope of Review

The two records at issue in this case comprise a letter dated 5 April 2017 from the ORNL to the applicant and a letter dated 1 June 2017 from the Department of Public Expenditure and Reform (on behalf of the Minister in his role as Regulator at the time) to the applicant. This review is concerned solely with whether the ORNL was justified in its decision to grant access to certain additional parts of the two records as identified by the applicant, apart from those parts already redacted by the ORNL in its decision on the request.

Preliminary Matters

Under section 22(12)(a) of the FOI Act, a decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person to whom the information relates shows to the satisfaction of the Commissioner that the decision was not justified. This means that the onus is on the applicant of satisfying this Office that the ORNL's decision to release the relevant parts of the records at issue was not justified.

I must also explain at the outset that section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the applicant's arguments for seeking the redaction of certain information under section 36 and of the reasons for my decision on that matter are somewhat limited in this case.

Analysis and Findings

The records at issue in this case form part of an exchange of communications between the ORNL following a report in the media of alleged upselling of National Lottery products. The letters are concerned with the interpretation of Clause 9.9 of the Licence to operate the National Lottery, which prohibits the licensee, its subsidiaries and all retailers from making unsolicited telephone calls or other forms of direct or personal communication with a view to encouraging the purchase of tickets in a National Lottery game without the prior written approval of the Regulator.

The applicant argued that the information in question is exempt from release under sections 35 and 36 and that the public interest would be better served by withholding that information. In essence, its argument is that the release of the information would disclose the position it took on the interpretation of Clause 9.9...