Case number: OIC-135337-S4B5Z8

Whether the ORNL was justified in deciding to grant partial access to three records relating to a ‘Must be won’ LOTTO draw that took place in January 2022

 

4 October 2023

 

Background

The ORNL is an independent regulatory office established under the National Lottery Act 2013. It procures and regulates the holding of the Irish National Lottery. This review arises from a decision of the ORNL to grant partial access to certain records pursuant to a request to which section 38 of the FOI Act applies. Section 38 applies to cases where, at some stage in the decision making process, the public body has formed the view that the records in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. Sections 35, 36 and 37 – relating to information that is confidential, commercially sensitive or personal information about third parties, respectively) but that the records should be released in the public interest. Where section 38 applies, the public body is required to notify an affected third party before making a decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the public body, may apply directly to this Office for a review of that decision. The applicant in this case is the operator of the National Lottery under licence, an affected third party.

On 8 December 2022, the ORNL received a request for communications between the ORNL and the applicant company on breaches since a previously reported breach, in 2021, and communications detailing potential financial penalties that could be imposed or funds that could be withheld in relation to breaches or potential breaches. The request also sought access to raw data provided to the ORNL by the applicant on how frequently it contacts retailers about unusual activity that may relate to problematic player behaviour.

The ORNL notified the applicant of the request on 21 December 2022 and provided copies of redacted records that it proposed to release, with certain information redacted on the ground that it did not come within the scope of the request. The decision maker said her preliminary view was that the information in the records was not exempt and if it was, the public interest would, on balance, be better served by granting the request. She said all personal information contained in the records would also be redacted under section 37 of the Act.

On 16 January 2023, the applicant provided submissions to the ORNL wherein it argued that the records should be withheld in their entirety under sections 35(1)(a), 35(1)(b), 36(1)(b) and 37(1) of the Act.

In a decision dated 25 January 2023, the ORNL informed the applicant that it had decided to grant partial access to the three records at issue, with certain information redacted from records 2 and 3 under section 35(1)(b) and certain other information redacted from all three records under section 37(1) of the Act. On 9 February 2023, the applicant applied to this Office for a review of the ORNL’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the applicant and the ORNL as outlined above and to the submissions made by both parties to this Office. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The records at issue relate to a ‘Must be won’ draw that took place in January 2022 which was put in place as a result of the National Lotto not being won on 62 successive occasions.  There was considerable national and political interest in the event due to its unprecedented nature and the scale of the prize money on offer. The records comprise the following:

1. An e-mail from the applicant to ORNL with Memo attached

2. A memo from the applicant to the ORNL regarding the “Must be Won” draw

3. Minutes of a meeting between the applicant and the ORNL dated 6 April 2022

This review is concerned solely with whether the ORNL was justified in its decision to grant partial access to the records in question. It is not concerned with the information that the ORNL has decided to redact from the records.

Preliminary Matters

It is important to note that under section 22(12)(a) of the FOI Act, a decision to grant a request to which section 38 applies is 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 grant partial access to the records at issue was not justified.

I would also like to address the applicant’s argument that the ORNL was inconsistent in its decision to redact certain information from the records at issue. I have no role in this case in considering whether the redactions made by the ORNL were appropriately made. The fact that it decided to redact certain information does not, of itself, provide a basis for me to find that other information the applicant believes to be of a similar nature must be redacted. My review is confined to whether the information the ORNL proposes to release is exempt under one or more of the provisions of the Act cited by the applicant in support of its application for review.

Analysis and Findings

During the course of the review, while the applicant argued that all three records should be withheld in their entirety, it also identified suggested redactions to 2 and 3 in the event that this Office found that the records were not exempt in their entirety. As I have outlined above, the records at issue concern a matter relating to the payment of prizes claimed in respect of the “Must be won” Lotto draw. Record 3 comprises the minutes of a meeting that took place in April 2022 and contains details of an issue that had arisen relating to the prize claims, and a request by the ORNL that the applicant should notify the ORNL of the matter in writing. Record 1 is a covering email under which the applicant sent a memo to the ORNL describing the matter and the actions the applicant took and proposed to take on the matter, while record 2 comprises a copy of that memo.

Section 35

Section 35(1) provides for the mandatory refusal of a request if –

a. the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) 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, or

b. disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.

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 member of the staff 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 the staff of, an FOI body or of such a service provider.

Record 3 was created by a staff member of the ORNL in the course of the performance of her functions. Accordingly, I deem it appropriate to consider the applicability of section 35(2) to that record at the outset.

Section 35(2)

For section 35(1) to apply, subsection (2) requires that the release of the record would constitute a breach of a duty of confidence. It is the applicant’s position that such a duty of confidence, provided for ‘by an agreement’ is owed by the ORNL. The specific agreement referred to by the applicant is Clause 20.6 of the License.

Clause 20 of the Licence is concerned with the provision of information to the Regulator. It provides as follows:

“20.6   Notwithstanding anything to the contrary in this Licence, the Regulator shall:

20.6.1  not, unless compelled to do so by law (in which event the Regulator shall forthwith notify the Licensee of such compulsion in writing), under any circumstances directly or indirectly disclose or divulge to any third party any of the Licensee’s confidential information which may be provided to the Regulator pursuant to any provisions of this Licence and/or the Act, without the prior written permission of the Licensee. The Licensee’s confidential information shall include, without any limitation, the Licensee’s trade secrets, management accounts, financial structure, financial statements (whether audited or not), commercial plans, contractual arrangements with any third party, shareholders agreements and arrangements and details of the licensee’s human and other resources, management, policies and procedures unless such information is already in the public domain. The foregoing shall apply mutatis mutandis to any other confidential information of a third party provided by the Licensee to the Regulator…”

In its submissions, the ORNL said release of the information at issue would not offend the provisions of Clause 20.6 and would strike the appropriate balance between its obligations under the Licence and under the FOI Act. It said the information proposed for release in the records comprises general information, conclusions, details of the applicant’s compliance obligations, and directions to provide the ORNL with information. It said none of this information is “confidential” information within the meaning of Clause 20.6.

On the other hand, the applicant argued that the ORNL did not appear to have acknowledged the words "without any limitation" in Clause 20.6. It argued that while certain examples of confidential information were provided, “the [O]RNL's consideration, while aiming to be exhaustive, belies the holistic interpretation which must be given to this term in the context of that Clause”. It said the words "without any limitation" clearly imply that "confidential information" means more than simply the terms listed in that definition. It argued that the entirety of Record 3 should be considered confidential information within the meaning of Clause 20.6 of the Licence. It identified specific information in Record 3 that, it argued, should not be released in isolation.

It seems to me that the words “without any limitation” in Clause 20.6 do not mean that information other than that described in the Clause can be regarded as confidential for the purpose of the Clause. Rather, the words serve to ensure that all information that is captured by one or more of the identified categories is regarded as confidential, without limitation. In my view, the various categories of information described in the Clause give a clear indication of the type of information that the applicant might give to the ORNL and that should be treated as confidential, which is essentially concerned with the internal management, finances, and operations of the applicant. The Clause does not serve to allow for the categorisation of any and all information the applicant might give to the ORNL as confidential.

As I have outlined above, the relevant information in Record 3 details an issue that had arisen relating to the prize claims and a request by the ORNL that the applicant should notify the ORNL of the matter in writing. The ORNL said none of the information is “confidential” information within the meaning of Clause 20.6. and that its release would not offend the provisions of Clause 20.6. I agree. I am satisfied that the information in question cannot reasonably be regarded as a type of information that must be regarded as confidential for the purposes of Clause 20.6. Accordingly, I find that the disclosure of the information would not constitute a breach of a duty of confidence provided for by the Licence agreement. I find, therefore, that section 35(1) cannot apply to record 3 pursuant to section 35(2). It remains for me to consider whether section 35(1) applies to Records 1 or 2.

Section 35(1)(a)

For a record to be exempt under section 35(1)(a), four requirements must be satisfied, namely that;

  • the information was given to an FOI body in confidence;
  • the information was given on the understanding that it would be treated by the FOI body as confidential;
  • disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons; and
  • it is important to the body that such further similar information should continue to be given to the body.

I note that the applicant identified no specific information in Record 1 as requiring protection, apart from a general assertion that all three records are exempt under section 35(1)(a). It said that Record 2 was given to the ORNL in confidence and with an expectation that it would be treated confidentially. It said release of the memo would prejudice it voluntarily giving such information in such a forum to the ORNL. It said it provides information to the ORNL in a constructive manner, at times where it is under no legislative compulsion to do so. It said, for example, that it regularly keeps the ORNL appraised of its commercial plans, product pipeline, management issues, upcoming projects and relevant incidents. It said such comprehensive provision of information to the ORNL would, in all likelihood, be severely curtailed if that information was subsequently to be disclosed to the public at large. It said this curtailment would occur as a result of its fear that disclosure may negatively affect its reputation. It said it would not therefore have disclosed the information in the manner in which it did if it felt that there was a risk of public disclosure under the FOI Act.

The applicant added that the records “contain confidential and/or commercially sensitive information (over and above the initial request) which [the applicant] may not, had it known such information would subsequently be released, have given”. It argued, therefore, that disclosure of the records could very conceivably prejudice the giving of further similar information. It said it errs on the side of transparency of full disclosure and if there is a threat of release of its confidential information to the world at large, such disclosure would be at risk. It said that in order to fully engage with the ORNL, it needs the freedom to share confidential information in the expectation that it will be treated as such.

In its submissions to this Office, the ORNL said it does not consider section 35(1)(a) to apply on the basis that “the third limb contained in the section is not satisfied (assuming that the first two limbs would be satisfied)”. It said its view is that release of the information would not be likely to prejudice the provision by the applicant of similar further information as (a) the applicant can be compelled by statute to provide information requested by the ORNL relating to its statutory remit and (b) the applicant is expected to provide the ORNL with complete information whenever it is seeking to advance or protect its commercial or other interests. It said this reasoning has been accepted by the Commissioner in the context of a statutory investigation, citing case number OIC-53377.

In that case, this Office considered whether the ORNL was justified in deciding to grant access to certain records on foot of a request for correspondence with the applicant regarding any breaches of the Licence relating to marketing communications during 2017 and 2018. Among other things, the Senior Investigator note that the ORNL has legal powers to obtain from the applicant all information that it needs to perform its statutory functions. She further noted that the applicant essentially acknowledged that it is in its interests to provide additional information during an investigation to ensure that its defence is as strong as possible. She said it was not clear to her why the applicant would not continue to do so even if the records in the case were to be released. She was not satisfied that the information at issue met the third and fourth tests in particular of section 35(1)(a).

It is noteworthy that under section 35(1)(a), information that a person was required by law, or could have been required by the FOI body pursuant to law, to give to the FOI body may fall for protection under section 35(1)(a), provided all of the requirements of the section are met. As such, the fact that the applicant can be compelled by statute to provide information requested by the ORNL relating to its statutory remit does not, of itself, mean that section 35(1)(a) cannot apply. Nevertheless, similar to the reasoning this Office outlined in case OIC-53377, it seems to me that it is in the interests of the applicant to ensure that it provides full disclosure of material information of relevance to matters arising such as the one considered in the records at issue, particularly given the ORNL’s role in relation to ensuring the terms of the Licence between the State and the applicant, as operator, are being met. It is also noteworthy that the ORNL decided to redact certain information from the records relating to the applicant’s policies and procedures that it deemed to be confidential pursuant to the provisions of the licence. In such circumstances, I do not accept that the release of the specific information in records 1 and 2 that the ORNL has decided to release would be likely to prejudice the giving to the ORNL of further similar information from the applicant or other persons. Accordingly, I find that section 35(1)(a) does not apply.

Section 35(1)(b)

The test set out in section 35(1)(b) is, in essence, the same as that set out in section 35(2), namely that the disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. Whilst acknowledging that the ORNL decided to redact certain information from the records that it deemed to be confidential pursuant to the provisions of the licence, the essence of the applicant’s argument is that the entirety of record 1 and record 2 should be considered confidential within the meaning of the Clause 20.6 of the licence.

In its submissions to this Office, the applicant focused on Record 2 and made no specific arguments in respect of the applicability of the section to Record 1. I have set out above the details of the applicant’s arguments as to why it considers that the release of the records would constitute a breach of a duty of confidence provided for by Clause 20.6 of the Licence. I have examined the relevant information in Records 1 and 2 that the ORNL proposes to release. Having done so, I am satisfied that none of the information at issue can reasonably be regarded being of a type of information that must be regarded as confidential for the purposes of Clause 20.6. I find that section 35(1)(b) does not apply to either record.

Section 36

Section 36(1)(b) provides for the mandatory refusal of a request if the record sought contains concerned contain financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that 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 that 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 nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record(s) at issue should be shown by an FOI body or a third party relying on this provision.

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. While the degree of harm required to meet the harm test in the second part of this provision (“could prejudice”) is lower than that required to meet the test in the first part, this Office takes the view that, in invoking the phrase "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. made it clear that it is not sufficient for the 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. The FOI body or the third party opposing release should explain how disclosure of the particular records could give rise to the harms identified in section 36(1)(b).

In its submissions, the applicant argued that Records 2 and 3 contain commercially sensitive information. It identified certain information in the records that it argued, could prejudice its position. It argued that the release of that information could provide competitors with inside knowledge as to detailed sales information which could be extrapolated (in a scientific or a “best guess” manner”) to a “total” amount of winning tickets (or indeed all tickets) sold. It said that while it releases information about total Draw Based Game sales in its annual financial statement (of which the Lotto game in question is one) it does not go into granular detail on specific games nor provides details on ticket (winning and non-winning) sales. It argued, therefore, that the release of the information at issue would directly impact its competitive position.

In its submissions, the ORNL said that details around the total number of overall winners in the January 2022 draw is apparent from media coverage at the time as well as the total number of winners of high tier prizes, the number of winners and prizes for other prize tiers and the probable total number of tickets sold. It said it is common knowledge that the January 2022 draw was unprecedented and resulted in unprecedented high levels of sales. It said that scenario cannot happen again due to changes made to the Lotto game. It said the applicant’s competitors would know and appreciate that any such information is simply unreliable on an ongoing basis such that no harm could reasonably flow to the applicant if the above information was released.

The ORNL added that the matters discussed in the records occurred in the context of an unprecedented roll-over of the Lotto jackpot where the jackpot was not won for over six months. It said this resulted in media and political coverage effectively questioning the integrity and structure of the Lotto game. It said the relevant FOI request arose in the context of appearances by both the RNL and the applicant in front of the Public Accounts Committee and statements made by the applicant regarding its compliance and provision of information to the Regulator. It said it is important that details of all significant winnings relating to that roll-over are published to help ensure that public confidence in the National Lottery is where it should be and that not disclosing the amount of winnings could result in further questioning of the National Lottery. It argued that the good reputation of the National Lottery as it relates to society generally, and how is benefits good causes, would be maintained and/or strengthened by transparency and granting the information in relation to significant winnings and the roll-over draw. It said it does not consider that this information is commercially sensitive information and that the applicant has not provided evidence of how the release of this information could result in harm.

Record 1 is essentially a covering email. There is nothing in the record, in my view, that could possibly give rise to any of the harms identified in section 36(1)(b) if released, nor has the applicant identified any such information.

In relation to Records 2 and 3, it is not apparent to me how the disclosure of the relevant information in the records would reveal “detailed sales information which could be extrapolated (in a scientific or a “best guess” manner”) to a “total” amount of winning tickets (or indeed all tickets) sold”, nor has the applicant explained how this might be done. Regardless, it is very relevant, in my view, that the January 2022 draw was unprecedented and resulted in unprecedented high levels of sales, and that the same situation cannot happen again due to changes made to the Lotto game. Accordingly, I do not accept that the release of the information in question could reasonably be expected to result in a material financial loss to the applicant or that it could prejudice its competitive position. I find that section 36(1)(b) does not apply to any of the records at issue.

Section 37

Section 37(1) provides for the mandatory refusal of a request where the FOI body considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information that comprise personal information for the purposes of the Act, including information relating to the financial affairs of the individual.

The applicant argued that further redactions are required to the records at issue to protect a player’s identity in light of the particular circumstances arising. While it has explained why it considers this to be the case, I have not included those reasons here in light of the provisions of section 25(3) that require this Office to take all reasonable precautions in a review to prevent the disclosure of exempt information. I can confirm, however, that I have considered the reasons stated.

The ORNL argued that the additional redactions sought do not constitute personal information and that it routinely publishes anonymised winners’ stories including details such as prize money won, ticket types involved, dates of draws and whether the winners belonged to a syndicate or were individual winners. While the circumstances arising in this case are somewhat different, I agree that the disclosure of the relevant information would not involve the disclosure of personal information about an identifiable individual and I do not accept the applicant’s arguments. It seems to me that the mere possibility that the disclosure of the information might lead to some speculation as to the identity of the individual concerned is not sufficient for me to find that its disclosure would involve the disclosure of personal information. As such, I am not satisfied that section 37(1) applies to any of the information in the records to which the ORNL has decided to grant access.

In conclusion, therefore, I find that none of the information in the three records that the ORNL has decided to release is exempt under sections 35(1), 36(1)(b), or 37(1) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the ORNL’s decision to grant partial access to three records relating to a ‘Must be won’ LOTTO draw that took place in January 2022. 

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.
 

 

Stephen Rafferty
Senior Investigator