A
45 Pipitea St
PO Box 805
2 April 2019
Wellington 6140
New Zealand
Phone +64 4 495 7200
Frazer Black
Fax +64 4 495 7222
Websit
e dia.govt.nz
Via email:
[FYI request #9633 email]
Dear Frazer
Official Information Act 1982 (OIA) request dated 20 February 2019 (ref OIA18190504)
Thank you for your OIA request to the Department of Internal Affairs (the “Department”) relating
to loot boxes. You asked for the following information:
“Is the Department, or has the Department in the past, considered action to ensure gambling
elements in video games are compliant with New Zealand law?
In addition, please may I also request:
(1) Any documentation related to gambling elements in video games (sometimes referred to
as ‘Loot Boxes’), including emails, meeting notes, formal and informal reports or
recommendations.
(2) Any documentation related to the recent law change in Belgium that restricted gambling
elements in video games.”
Loot boxes
For the purposes of your OIA request, the Department refers to “loot boxes” as micro-transactions
or in-app purchases within computer games where a player pay for a virtual container, the contents
of which are unknown to the player.
Based on current information, computer games featuring loot boxes do not strictly meet the legal
definition of gambling and cannot currently be regulated under the Gambling Act 2003. Under the
Gambling Act, “gambling” requires a mental element of “seeking to win money” on the part of the
player.
The Department considers that players do not purchase loot boxes seeking to win money or
something that can be converted into money. Players buy loot boxes so they can use their contents
within the game and thereby have a better gaming experience.
With this context in mind, the Department confirms that it has not taken any enforcement action
under the Gambling Act with respect to loot boxes.
Page 1 of 10
Documentation relating to loot boxes
Number of documents within scope
The Department has identified
66 documents in scope of your request, which are summarised at
Appendix 1. Please note that in order to provide you with the most relevant information in a timely
manner the Department has excluded administrative emails (such as, those setting up meetings)
and sign-out sheets approving the release of letters to requestors.
In addition, with respect to the queries on loot boxes that were responded to directly by the Minister
of Internal Affairs the Department has excluded some administrative emails relating to the
finalisation of these Ministerial responses. Also, where the same Ministerial letter was released to
more than one party, the Department has only included a single copy of the letter rather than the
responses made to all individual parties.
Matters considered under the OIA
The Department’s starting point for considering your request for official information has been the
principle of availability. That is, information must be made available on request unless there is good
reason for withholding it.
The Department has considered the other reasons for withholding information that are subject to
the public interest test, which are listed in section 9 of the OIA. I consider that the following grounds
for withholding information as outlined in section 9(2) of the OIA apply to some of the requested
information (as identified by the Department in the documents described in Appendix 1 to this
letter):
• Section 9(2)(a), which relates to the protection of the privacy of natural persons, including
that of deceased natural persons;
• Section 9(2)(g)(i), which relates to the maintenance of the effective conduct of public affairs
through the free and frank expression of opinions by or between or to Ministers of the Crown
or members of an organisation or officers and employees of any department or organisation
in the course of their duty; and
• Section 9(2)(h), which relates to the maintenance of legal professional privilege.
Specific points to note about the withholding grounds under section 9(2) of the OIA
There are a number of documents (as described in Appendix 1 to this letter) which include the
names and other related personal information of persons requesting information from the
Department about loot boxes. This personal information is subject to section 9(2)(a) of the OIA.
There are a number of documents (as described in Appendix 1 to this letter) which include draft
departmental responses to queries from third parties. These draft responses qualify as free and
frank advice and are subject to section 9(2)(g)(i). The release of these responses (and some related
discussions on the responses) would inhibit the future exchange of free and frank opinions on draft
responses, which would prejudice the effective conduct of public affairs. In some cases, entire
documents are withheld as draft departmental responses under section 9(2)(g)(i) of the OIA.
Page 2 of 10
There are two documents within the document set (namely an Online Gambling Risk Assessment
and a Draft Departmental Environmental Scan for Gambling) which refer to loot boxes in parts. This
material is withheld under 9(2)(g)(i) of the OIA. Releasing this material would have a chilling effect
on the willingness of officials to express themselves openly, honestly and completely in future about
important policy matters relating to the future regulation of gambling in New Zealand.
In addition, I note that the Environmental Scan qualifies as a draft document and there is a
significant amount of work required to complete it. In particular, releasing the draft loot boxes
discussion in the Environmental Scan would inhibit the future exchange of free and frank opinions
that are necessary for the effective conduct of public affairs.
The material in the Risk Assessment and the Draft Environmental Scan that discuss other matters
(unrelated to loot boxes) is outside the scope of your OIA request and is withheld from disclosure.
In the alternative, the Department relies on section 9(2)(g)(i) to withhold these documents in full in
the event it is considered that these entire documents fall within scope of your request. Both
documents are exploratory in nature and they will inform the strategic thinking about the future of
gambling. They will also enable the Department to take steps, where appropriate, to respond to
gambling issues affecting the Department and New Zealanders. Releasing these documents now
would inhibit the future exchange of free and frank opinions that are necessary for the effective
conduct of public affairs.
Also, some material in the documents listed in Appendix 1 to this letter is withheld as being legally
privileged under section 9(2)(h) of the OIA. In other cases, entire documents have been withheld on
the basis that they contain legal opinions and qualify as legally privileged.
Section 9(1) – balancing exercise
Section 9(1) of the OIA provides that where this section applies good reason for withholding official
information exists, for the purpose of section 5, unless in the circumstances, the withholding of that
information is outweighed by other considerations which render it desirable, in the public interest,
to make that information available.
Section 9(1) requires the Department to undertake a balancing exercise and decide whether the
public interest in withholding information under section 9(2) of the OIA (as identified in Appendix 1
of this letter and in the documents themselves) is outweighed by other public interest
considerations that support disclosure of the information.
Particular public interest considerations which support the disclosure of the redacted material (as
described in this letter) is the general public interest in promoting the transparent conduct of public
affairs and the public interest in disclosure of information that illuminates decision making
processes.
In the circumstances of this case, the Department believes that the public interest considerations in
favour of disclosure of the redacted material do
not outweigh the need to withhold the redacted
information for the good reasons set out in section 9(2) of the OIA (and as described above and in
Appendix 1).
Page 3 of 10
Documentation about the recent law change in Belgium
While the Department continues to follow the international debate over loot boxes and monitors
developments in gaming technology, the Department does not hold any documentation related to
the recent law change in Belgium restricting loot boxes. Further, I cannot think of any other agency
that would hold it, or whose functions would be more closely connected to it. I am therefore refusing
your request under section 18(g) of the OIA because the information is not held.
The Ombudsman
If you are dissatisfied with my decision on your request for information, you have the right, under
section 28 of the OIA, to make a complaint to the Office of the Ombudsman. The Office of the
Ombudsman can be contacted by phone on 0800 802 602, via post at PO Box 10152 Wellington or
via email to
[email address].
Yours sincerely
Charlotte Stanley
Deputy Director Operations
Regulatory System Gambling
Page 4 of 10
APPENDIX 1
Number
Title
Date
Comments
1
Department Online
2017
Withheld in full. In
Gambling Risk Assessment
particular:
• Information on loot
boxes is withheld
under section
9(2)(g)(i) of the OIA;
and
• All other information
is outside of the
scope of the OIA
request and is
redacted.
2
Internal Department email 13/10/2017
Released in full.
3
Email chain between the
14/11/2017 to
Released with
Department, the
16/11/2017
information withheld
Minister’s office and an
under section 9(2)(a) of
external requester
the OIA.
4
Ministerial requests
Range from
Released with
(14 Ministerial requests
14/11/2017 to
information withheld
collated into a single
05/12/2017
under section 9(2)(a) of
document.)
the OIA.
5
Email chain between the
15/11/2017 to
Released with
Department and an
22/11/2017
information withheld
external requester
under section 9(2)(a) of
the OIA,
6
Internal Department email 20/11/2017 to
Released with
chain – one attachment
29/11/2017
information withheld
below
under section 9(2)(h) of
the OIA.
7
Department Legal memo
24/11/2017
Withheld in full under
section 9(2)(h) of the
OIA.
8
Internal Department email 20/11/2017 to
Released with
chain – two attachments
29/11/2017
information withheld
(one below, one is the
under sections 9(2)(h)
Department Legal memo
and 9(2)(g)(i) of the OIA.
above (Doc 7))
9
Internal Department email 29/11/2017
Released in full.
10
Internal Department email 21/11/2017 to
Released in full.
chain
21/11/2017
11
Internal Department email 21/11/2017 to
Released in full.
chain
21/11/2017
Page 5 of 10
12
Email chain between the
21/11/2017 to
Released with
Department, the
21/11/2017
information withheld
Minister’s office and the
under section 9(2)(a) of
Office of Film and
the OIA.
Literature Classification
13
Internal Department email 23/11/2017 to
Released in full.
chain
23/11/2017
14
Email chain between the
23/11/2017 to
Released with
Department and an
23/11/2017
information withheld
external requester
under sections 9(2)(a)
and 9(2)(g)(i) of the OIA.
15
Email chain between the
23/11/2017 to
Released with
Department and an
14/02/2018
information withheld
external requester
under sections 9(2)(a)
and 9(2)(g)(i) of the OIA.
16
Internal Department email 29/11/2017
Released in full.
17
Internal Department email 29/11/2017
Released in full.
– one attachment below
18
Draft Departmental
No date
Withheld in full under
response
section 9(2)(g)(i) of the
OIA.
19
Internal Department email 29/11/2017
Released in full.
– one attachment below
20
Draft Departmental
No date
Withheld in full under
response
section 9(2)(g)(i) of the
OIA.
21
Email chain between the
29/11/2017 to
Released with
Department and an
13/12/2017
information withheld
external requester
under sections 9(2)(a)
and 9(2)(h) of the OIA.
22
Email chain between the
29/11/2017 to
Released with
Department and an
14/12/2017
information withheld
external requester – three
under sections 9(2)(a)
attachments below
and 9(2)(h) of the OIA.
23
Attachment 1 – email
16/11/2017 to
Released with
chain between the
12/12/2017
information withheld
Department and an
under section 9(2)(a) of
external requester
the OIA.
24
Attachment 2 – email
11/12/2017 to
Released with
chain between the
12/12/2017
information withheld
Department and an
under section 9(2)(a) of
external requester
the OIA.
25
Attachment 3 – email
23/11/2017 to
Released with
chain between the
12/12/2017
information withheld
Department and an
under section 9(2)(a) of
external requester
the OIA.
Page 6 of 10
26
Email chain between the
30/11/2017 to
Released with
Department and the
30/11/2017
information withheld
Minister’s office
under section 9(2)(g)(i)
of the OIA.
27
Email chain between the
30/11/2017 to
Released with
Department and the
01/12/2017
information withheld
Minister’s office
under section 9(2)(g)(i)
of the OIA.
28
Internal Department email 01/12/2017
Released in full.
– one attachment below
29
Draft Departmental
No date
Withheld in full under
response
section 9(2)(g)(i) of the
OIA.
30
Internal Department email 01/12/2017 to
Released in full.
chain
04/12/2017
31
Internal Department email 04/12/2017
Released with
information redacted as
being out of scope.
32
Internal Department email 04/12/2017
Released with
information withheld
under section 9(2)(a) of
the OIA.
33
Internal Department email 05/12/2017 to
Released in full.
chain
05/12/2017
34
Internal Department email 05/12/2017 to
Released in full.
chain
05/12/2017
35
Internal Department email 05/12/2017 to
Released with
chain – one attachment
14/12/2017
information withheld
below
under section 9(2)(h) of
the OIA.
36
Department Legal advice
24/11/2017
Withheld in full under
memo
section 9(2)(h) of the
OIA.
37
Email chain between the
07/12/2017 to
Released in full.
Department and the
07/12/2017
Minister’s office
38
Internal Department email 11/12/2017
Released in full.
– one attachment below
39
Draft Departmental
No date
Withheld in full under
response
section 9(2)(g)(i) of the
OIA.
40
Internal Department email 11/12/2017 to
Released with
chain
11/12/2017
information withheld
under section 9(2)(g)(i)
of the OIA.
41
Internal Department email 12/12/2017
Released in full.
– one attachment below
Page 7 of 10
42
Draft Departmental
No date
Withheld in full under
response
section 9(2)(g)(i) of the
OIA.
43
Internal Department email 13/12/2017 to
Released in full.
chain
14/12/2017
44
Internal Department email 14/12/2017
Released in full.
45
Email chain between the
14/12/2017 to
Released with
Department and True
14/12/2017
information withheld
Legal Ltd
under section 9(2)(a) of
the OIA.
46
Email chain between the
14/12/2017 to
Released with
Department and an
15/12/2017
information withheld
external requester
under section 9(2)(a) of
the OIA.
47
Internal Department email 14/12/2017 to
Released in full.
chain
15/12/2017
48
Ministerial response letter
18/12/2017
Released with
– long version (includes
information withheld
Classification Act
under section 9(2)(a) of
information)
the OIA.
(This letter was sent to
eight other recipients in
response to Ministerial
requests.)
49
Ministerial response letter
18/12/2017
Released with
– short version (excludes
information withheld
Classification Act
under section 9(2)(a) of
information)
the OIA.
(This letter was sent to
four other recipients in
response to Ministerial
requests.)
50
Ministerial response letter
18/12/2017
Released with
– adjusted version (relates
information withheld
to classification labels)
under section 9(2)(a) of
(This letter was only sent
the OIA.
to a single recipient.)
51
Internal Department email 18/12/2017
Released in full.
52
Internal Department email 19/12/2017 to
Released in full.
chain
19/12/2017
53
Email chain between the
19/12/2017 to
Released with
Department, the
20/12/2017
information withheld
Minister’s office and an
under section 9(2)(a) of
external requester
the OIA.
54
Internal Department email 20/12/2017 to
Released in full.
chain
20/12/2017
Page 8 of 10
55
Internal Department email 20/12/2017 to
Released in full.
chain
20/12/2017
56
Internal Department email 20/12/2017 to
Released in full.
chain
21/12/2017
57
Email chain between the
20/12/2017 to
Released with
Department and an
21/12/2017
information withheld
external requester
under sections 9(2)(a)
and 9(2)(g)(i) of the OIA.
58
Email chain between the
21/12/2017 to
Released with
Department and an
21/12/2017
information withheld
external requester
under section 9(2)(a) of
the OIA.
59
Email chain between the
21/12/2017 to
Released with
Department and an
22/12/2017
information withheld
external requester
under section 9(2)(a) of
the OIA.
60
Internal Department email 24/01/2018
Released with
– one attachment below
information withheld
under section 9(2)(a) of
the OIA.
61
Letter from the
26/01/2018
Released with some
Department to and OIA
information withheld
requestor
under section 9(2)(a) of
the OIA.
62
Email chain between the
03/02/2018 to
Released with
Department and an
15/02/2018
information withheld
external requester
under sections 9(2)(a)
and 9(2)(g)(i) of the OIA.
63
Email chain between the
03/02/2018 to
Released with
Department and an
16/02/2018
information withheld
external requester
under section 9(2)(a) of
the OIA.
64
Email chain between the
03/02/2018 to
Released with
Department and an
22/02/2018
information withheld
external requester
under section 9(2)(a) of
the OIA.
65
Letter from the
15/03/2018
Released with some
Department to an external
information withheld
requester
under section 9(2)(a) of
the OIA.
Page 9 of 10
66
Draft Department
2019
Withheld in full. In
Environmental Scan
particular:
• Information on loot
boxes is withheld
under section
9(2)(g)(i) of the OIA;
and
• All other information
is outside of the
scope of the OIA
request and is
redacted.
Page 10 of 10
