Correspondence relating to football index and/or betindex
Request
I would like to formally request any email correspondence relating to football index/Betindex between the forensic accountant assigned to the case and other staff members of the gambling commission, in order of newest to oldest.
Response
Thank you for your request which has been processed under the Freedom of Information Act 2000 (FOIA).
The Gambling Commission’s response to your request is detailed below.
I would like to formally request any email correspondence relating to football index/Betindex between the forensic accountant assigned to the case and other staff members of the gambling commission, in order of newest to oldest.
We can confirm that the Commission does hold information that falls within the scope of your request.
As part of the licence review process the Commission will enter into dialogue with the operator, legal representatives, other third parties and internal members of staff. Information collected during this process is for ascertaining if any breaches of the Commission’s Licence Conditions and Codes of Practice (LCCP) or of the Act have occurred. This dialogue will include communications between the forensic accountant and internal members of staff.
The information that was collected as part of this correspondence was used to inform the licence review. It is in the interests of all parties that matters of concern to the Commission can be discussed openly and frankly and releasing the information we use to assess if regulatory action will be taken against a licence holder (whether a person or an organisation) is considered to be exempt under S31(2)(c).
Providing this information would reveal details about how the Commission conducts its investigations and revealing this information could seriously impact on the Commission’s ability to fulfil its statutory functions.
The Commission is of the view that the information requested is exempt from disclosure under section 31(1)(g) FOIA and therefore will not be released.
S31(1) provides that Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice –
(g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2)
The relevant purpose referred to subsection (2) are –
c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise,
Disclosure of this information may lead individuals to think they can reduce the possibility of any non-compliance being detected by the Commission because they understand the matter and priorities the Commission has or has not decided to direct its resources towards. Non-disclosure is more likely to raise overall standards in the gambling industry if operators are not able to second guess or predict what specific matters will be subject to a more detailed consultation or investigation, the resources that will be devoted to it and the methodology the Commission will use.
The more information about how a regulator allocates its resources and the activities it is concerned with, added with information on how it goes about investigating matters, the better able an unscrupulous organisation will be to make an accurate assessment of the likelihood of a particular activity coming to the attention of that regulator and therefore to determine the risk of carrying out that activity.
Under section 31 it is necessary that we consider a public interest test to identify whether there is a wider public interest in disclosing this information as opposed to maintaining the exemption.
It is important that the public are assured that the Commission is carrying out its functions in ensuring that any individuals who are involved in providing gambling facilities to the public will uphold the licencing objectives ensuring that consumers are protected.
There is a legitimate public interest in promoting accountability and transparency of public authorities and disclosure of the requested information could demonstrate to stakeholders and relevant parties that the Commission is active in investigating. Furthermore, this disclosure may encourage stakeholders to work with us and contribute to our programme of work, increasing confidence in the Commission as a regulator and its ability to uphold the law.
Public disclosure of this information may also, by way of demonstrating our proactive work in this area, discourage unlawful activities being pursued.
However, disclosure of the requested information may prejudice the outcome of future investigations by the Commission, or another body by exposing investigative techniques and practices to the detriment of the public interest.
The Commission acknowledges that there is a public interest in promoting the accountability and transparency of public authorities and the importance of having sufficient information in the public domain to support consumers with their choice of operator, however, disclosure of the information would be damaging to the Commission as a regulatory body which ultimately serves to protect the wider public interest
Having considered the above points, the Commission is of the view that the balance of the public interest lies with maintaining the exemption.
First request for internal review
Thanks for getting back to me. I would like to appeal against this decision on the following grounds:
After an independent review highlighted failings in how the Gambling Commission operates, the GC put out information stating they had changed the way it operated, so any information pre-collapse of Football Index would not risk other gambling companies exploiting it.
The public index need is great as, in the independant review, it was stated that it would have been useful to have information from a forensic accountant. The Gambling commission removed a reference to a forensic accountant being involved in the case of football index from its website, and so there is some doubt as to whether a forensic account was involved.
Finally, the review of the gambling act 2005 is due to complete shortly and so all operations will undoubtably change in the near future.
My concern in your response also relates to the indication that if gambling operators were aware of your operations, they would look to exploit them. This worries me greatly as the Gambling Commission is currently looking at giving gambling operators access to data of at risk gamblers. Why would this be done if the gambling operators would exploit gaps in regulation? And how does this feed in with the Gambling Commissions reliance on Gambling Operators to inform them of key events?
First internal review response
Further to your Freedom of Information request dated 26/11/21 which we responded to on 6/12/21, and your subsequent request for an internal review received on 6/12/21, we have now concluded our review and our findings are detailed below. This internal review was conducted by someone who was not involved in the processing of your original request and was of a more senior position.
Your request was for the following information:
I would like to formally request any email correspondence relating to football index/betindex between the forensic accountant assigned to the case and other staff members of the gambling commission, in order of newest to oldest
In our response dated 06/12/2021 we advised you that this information was exempt under S31 – Law Enforcement.
When we processed your original request, we performed a search of our email system for any emails where the email address of any person working as a forensic accountant was either in the To/From/CC or BCC fields and the words Betindex or Football index were contained anywhere within the email.
We have revisited every email that was found in the search results and reviewed each of them as part of your request for a review.
The review has concluded that we are able to release some emails to you in response to your request. Please find emails attached.
Please note that some of the information contained within these emails is exempt as follows;
Emails numbered 1 – 12 - these emails contain personal information which is exempt under s40 of the FOIA.
Email number 13 – this email contains personal information which is exempt under s40 of the FOIA where to disclose this information would not be fair and lawful. These emails also contain information which we consider to be exempt under s31 – Law Enforcement
The remaining emails that we hold, which also fall within the scope of your request, we consider to be exempt in their entirety by virtue of Section 31 and/or Section 40. We have set out below which exemptions have been engaged.
Section 31 – Law Enforcement
The Gambling Commission (the Commission) was set up under the Gambling Act 2005 (’the Act’) to regulate commercial gambling in Great Britain in partnership with licensing authorities. We also regulate the National Lottery following a merger with the National Lottery Commission in 2013.
Section 22 of the Act sets out that the Commission has a statutory duty to promote the licensing objectives as laid out in section 1 of the Act, which are:
(a) preventing gambling from being a source of crime or disorder, being associated with crime or disorder or being used to support crime,
(b) ensuring that gambling is conducted in a fair and open way, and
(c) protecting children and other vulnerable persons from being harmed or exploited by gambling.
Gambling operators are required to hold a licence from the Commission in order to offer facilities for gambling to customers located in Great Britain. The Commission goes through a licence application process as part of this and makes an assessment of suitability against criteria set out in the Act. Part 5 of the Act details the Commission’s statutory functions in relation to the licensing requirements.
Once licensed, gambling operators are subject to ongoing compliance requirements and are subject to regulatory action should they fail to meet their licence requirements.
Emails between staff members generated as part of our regulatory work when reviewing the manner in which licensees carry out their licensed activities authorised by their licence, and, in particular, how they comply with the conditions attached to their operating licence form part of our assessment of that operator for regulatory purposes.
The information you requested was generated as part of our compliance work which was used to inform the licence review. It is in the interests of all parties that matters of concern to the Commission can be discussed openly and frankly between staff members. Information we use to assess if regulatory action will be taken against a licence holder (whether a person or an organisation) is considered to be exempt under S31(2)(c). Providing this information would reveal details about how the Commission conducts its investigations and revealing this information could seriously impact on the Commission’s ability to fulfil its statutory functions.
The Commission has powers to prosecute offences that are contained in the Act, and also has wide ranging powers in relation to investigating and resolving regulatory matters, including imposing sanctions on licensed operators. Disclosure may lead individuals to think they can reduce the possibility of any non-compliance being detected by the Commission because they understand the matter and priorities the Commission has or has not decided to direct its resources towards. This may result in operators or individuals knowing how to present information to avoid further scrutiny. Applying the exemption is more likely to raise overall standards in the gambling industry as operators are not able to second guess or predict what specific matters will be subject to a more detailed consultation or investigation, the resources that will be devoted to it and the methodology the Commission will use.
The more information about how a regulator allocates its resources and the activities it is concerned with, added with information on how it goes about investigating matters, the better able an unscrupulous organisation will be to make an accurate assessment of the likelihood of a particular activity coming to the attention of that regulator and therefore to determine the risk of carrying out that activity.
An Independent Review of the Regulation of Betindex has been published which provides further information regarding the regulation of BetIndex.
Report of the Independent Review of the Regulation of BetIndex Limited (opens in a new tab)
Public Interest Test
The factors the Commission has considered when applying the public interest test have been detailed below and it is our view that the public interest lies in favour of applying the exemption.
In favour of disclosure
We recognise that there is a public interest in promoting accountability and transparency of the Commission. It is important that the public are assured that the Commission is carrying out its functions in ensuring that any individuals who are involved in providing gambling facilities to the public have undergone the necessary due diligence checks, including financial viability, and will uphold the licencing objectives ensuring that consumers are protected.
The Commission acknowledges that there could be positive advantages from disclosing this information as the matter under consideration is the subject of public concern and publication of this information could alleviate these concerns and curtail speculation on the robustness of Commission processes, particularly in the case of Bet Index.
In favour of maintaining the exemption
Releasing information relating to the email correspondence would lead to the Commission being unable to make the full use of its statutory powers to ensure gambling is fair and safe. Revealing this information is likely to reveal the techniques the Commission uses in general when conducting investigations. This could severely hamper the effectiveness of the Commission’s investigatory processes in future cases; therefore, it is considered that this information is exempt under S31(2)(c).
It could seriously impact the Commission’s ability to conduct the investigation process, if information relating to what information it uses to inform the licence review process became known; this is strongly not in the public interest as it would impair the Commission’s ability to regulate effectively.
Weighing the balance
Looking at all the circumstances of the case and the nature of the request, there is more than a 50% chance that prejudice would be likely to be caused by disclosure. Public knowledge of the Commission’s investigative techniques would be likely to cause prejudice to the Commission and may also frustrate our investigative methods.
Releasing information about our regulatory work with a specific operator and the mechanisms that we have in place to support that investigation process into the public domain would be likely to prejudice our regulatory functions and impede the future work of the Commission as outlined above.
The release of the email correspondence into the public domain would not increase the public’s understanding as to how the Commission verifies if an operator is fit to continue to hold a licence or increase accountability.
Section 31(1)(g) of the Freedom of Information Act (‘law enforcement’) provides that information held by a public authority is exempt if its disclosure would or would be likely to prejudice the exercise of a public authority of its functions for any of the purposes specified in subsection 2.Therefore, on balance, the public interest is in favour of engaging the S31(2)(c) exemption when considering the impact upon the Commission’s ability to perform its regulatory functions
The Commission feels that the disclosure of this information ‘would be likely to prejudice’ the regulatory functions of the commission and future investigations.
Section 40 – Personal Information
Information that we hold that relates to identifiable individuals constitutes personal data.
The Data Protection Act 2018 requires personal data to be processed lawfully, fairly and in a transparent manner in relation to the data subject. It is the view of the Commission that disclosing the personal information within the attached emails and the emails that have been exempt in their entirety would constitute the disclosure of personal data and would contravene this principle.
This information is therefore exempt under section 40(2) of the Freedom of Information Act 2000
In conclusion, I uphold our original decision that the S31 exemption is engaged, however, the S40 exemption is also engaged and it is not in the public interest to release the requested information.
If you are not content with the outcome of your review, you may apply directly to the Information Commissioner (ICO) for a decision. Generally, the ICO cannot make a decision unless you have exhausted the complaints procedure provided by the Gambling Commission. The ICO can be contacted at: The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.
ICO decision notice
Decision notice reference: IC-148722-B6G9 (opens in a new tab) (PDF)
Gambling Commission response
ICO Case Reference: IC-148722-B6G9
I write further to the Decision Notice from the Information Commissioner's Office (ICO) dated 20 September 2022 regarding the case reference number IC-148722-B6G9.
The Gambling Commission’s (the Commission) response has been set out below.
Background
- On 26 November 2021, you made an information request to the Commission and stated:
“I would like to formally request any email correspondence relating to football index/Betindex between the forensic accountant assigned to the case and other staff members of the gambling commission, in order of newest to oldest.”
The Commission responded to the request on 6 December 2021. You were advised the information was exempt from disclosure under section 31(1)(g) by virtue of section 31(2)(c) of the Freedom of the Information Act 2000 (FOIA) as to disclose this information would prejudice the exercise by the Commission of its functions for the purposes of ascertaining whether circumstances which would justify regulatory action pursuance of any enactment exist or may arise.
On 6 December 2021 you requested an internal review of the Commission’s decision. As part of that review, your request was considered afresh.
On 6 January 2022 the Commission partially upheld our original decision that s31(1)(g) exemption was engaged but also considered that certain emails could be disclosed to you subject to redactions. The remaining emails were not disclosed as they were withheld under sections 31(1)(g) and 40(2).
The Commission was contacted by the ICO on 14 July 2022 in relation to your formal complaint.
On 6 September 2022 the Commission indicated that the Commission considered the request to be vexatious and relied on section 14(1)(vexation requests) of FOIA to refuse to comply with the request.
On 20 September 2002, the Commissioner’s decision was that the request was not vexatious and, therefore, the Commission is not entitled to rely on section 14(1) of FOIA to refuse the request. The Commissioner required the Commission to issue a fresh response to you, which does not rely on section 14(1) of FOIA.
The Commission’s current position
- Following a review of the information that falls within the scope of your request we are now able to provide you with 53 emails.
REDACTED
- Some of the information contained within these emails is exempt as follows:
i. Emails numbered 1 – 13: These emails contain personal information which is exempt under s40 of the FOIA. This information has therefore been redacted for the reasons set out below.
ii. Emails number 14 – 83: These emails contain personal information which is exempt under s40 of the FOIA where to disclose this information would not be fair and lawful. These emails also contain information which we consider to be exempt under s31 – Law Enforcement. This information has therefore been redacted for the reasons set out below.
iii. The remaining emails that we hold, which also fall within the scope of your request, we consider to be exempt in their entirety by virtue of section 31, section 41, section 42 and/or section 40. We have set out below which exemptions have been engaged.
- Please note that the Commission has retained some emails that we consider, for the reasons set out below, that the exemptions apply. The email reference numbers are therefore not set out in a chronological order.
Exemptions
- Our considerations for engaging these exemptions are detailed below.
Law Enforcement – Section 31
Engaging the exemption
Section 31(1)(g) exempts information whose disclosure would, or would be likely to, prejudice the exercise by any public authority of its functions for any of the purposes specified in subsection (2).
The Commission considers the subsections below apply and therefore the information is exempt from disclosure:
i. Subsection 31(2)(b) refers to the purpose of ascertaining whether any person is responsible for any conduct which is improper,
ii. Subsection 31(2)(c) refers to the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise,
iii. Subsection 31(2)(d) refers to the purpose of ascertaining a person’s fitness or competence in relation to the management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become, authorised to carry on,
- It is our view that the regulatory functions of the Commission, would be prejudiced by disclosure of this information as it would:
i. prejudice the Commission’s ability to fulfil its statutory functions by revealing how the Commission assesses operators’ and individuals as well as applications for regulatory purposes, and
ii. prejudice the Commission’s compliance and enforcement activity and raise overall standards in the gambling industry as it would undermine the trust the Commission has gained with operators in terms of disclosing information where it is necessary and proportionate and to cooperate in an open manner.
i) Undermining statutory functions
Once licensed, gambling operators are subject to ongoing compliance requirements and are subject to regulatory action should they fail to meet their licence requirements.
Emails between staff members generated as part of our regulatory work when reviewing the manner in which licensees carry out their licensed activities authorised by their licence, and, in particular, how they comply with the conditions attached to their operating licence form part of our assessment of that operator for regulatory purposes.
The information that has been requested was generated as part of our compliance work which was used to inform the licence review.
The release of the email correspondence between a forensic accountant and other members of staff within the Commission will have a direct impact on our statutory functions, by not only providing information to enable licensees to understand what information is requested and assessed though the review process but also undermining the assessment process itself which determines how operators are complying with the requirements of the Licence conditions and codes of practice (LCCP) which will ultimately impact on consumers.
The Commission considers that disclosure of the requested information would provide licensees with information that could be used to undermine and circumvent the assessment process and reduce the possibility of any non-compliance being detected by the Commission. Licensees would have knowledge of the particular areas of the assessment that the Commission directs its resources towards, the particular form and type of evidence required to obtain particular ratings and conversely what evidence does not appear to be relevant to the Commission’s assessment.
The Commission’s concern is that this would result in licensees using the disclosed information to present information in a manner which would avoid further scrutiny or be targeted at the particular factors which those assessing compliance are considering for evidence of compliance with the published framework.
By releasing the emails into the public domain, the Commission will be in a position where it will not be able to rely on the current process to assess compliance and would need to introduce further assessment processes which have not been disclosed to ensure that the assessment process remains robust and fit for purpose in order for the Commission to perform its statutory functions.
(ii) Raising overall standards in the gambling industry
The Commission also takes the view that disclosure is likely to reduce the overall standards in the gambling industry because releasing this information would undermine our relationship with licensees as the information that they provide to us as part of the review process is done so on the understanding that this will not be released into the public domain. If this information was disclosed, it would damage the relationship that we have formed with licensees which would result in them being less likely to share information with us in the future which would undermine our regulatory functions and, as a consequence, have a detrimental impact on the wider public.
Establishing trust with licensees is key to having open and frank exchanges and this, in turn, will make licensees more inclined to provide commercially sensitive information on the basis it is trusted to be kept with appropriate safeguards. Disclosing the requested information without sufficient rationale would undermine this trust and make licensees less likely to cooperate fully in the future.
The Commission considers that if it were to be in a situation in the future where it must use its formal powers to compel the provision of information then this information, provided under compulsion, would be of a different and arguably less satisfactory quality than if information was voluntarily supplied.
The Commission therefore concludes that the disclosure of this information would prejudice the regulatory functions of the Commission.
Public interest test
- The factors the Commission has considered when applying the public interest test have been detailed below and our view is that the public interest lies in favour of applying the exemption.
In favour of disclosure
The Commission is a public body which is required to regulate the gambling industry in the public interest. There is therefore a public interest in members of the public having confidence the Commission is being open and honest with the information it holds so that it can be held to account. It is important that the public are assured that the Commission is carrying out its functions in ensuring that any individuals or organisations who are involved in providing gambling facilities to the public have undergone the necessary assessments and will uphold the licencing objectives ensuring that consumers are protected.
Disclosure of the requested information could demonstrate to stakeholders and relevant parties how the Commission is assessing licensees and, furthermore, this disclosure may encourage stakeholders to work with us and contribute to our programme of work, increasing confidence in the Commission as a regulator and its ability to uphold the law.
Further, in the specific context of this case, we recognise that there is significant public interest in relation to the collapse of Betindex and disclosure of the emails would provide some additional information as to how the Commission assessed BetIndex in line with the requirements of the LCCP.
In favour of maintaining the exemption
The Commission has robust and effective processes and procedures in place which are utilised when assessing existing licensees. These procedures and processes have been put in place to minimise the risk of an operator continuing to provide gambling services where they do not meet the required standards. This demonstrates to the public at large that they can have confidence in the Commission’s compliance assessment processes.
There is an expectation of confidence in much of the Commission’s work, particularly regarding the internal conversations that take place between colleagues when discussing areas of a licensee’s compliance with the LCCP. It is the impact on this work of the Commission which is more likely to be affected by disclosure. The amount of specific information the Commission can release relating to our specific discussions about a licensee could lead to potentially non-compliant licenses altering their behaviour specifically to meet the Commission’s standards purely for assessment purposes. This in turn may impact on the Commission’s function of ascertaining a gambling operator’s fitness to carry out gambling activities.
Disclosure of this information would also undermine the Commission's ability to uphold the licensing objectives which would impact on the trust and confidence of the public in it as a regulator.
Further, disclosure of the requested information would prejudice the outcome of future assessments by the Commission by exposing assessment techniques and practices to the detriment of the public interest.
As regards the particular public interest in the collapse of Betindex, the Commission relies on the fact that since responding to both the initial request and the review, an Independent Review of the Regulation of Betindex has been published which provides a detailed narrative relating to Betindex. Details can be found here:
Report of the Independent Review of the Regulation of BetIndex Limited (opens in a new tab)
Operators are required to provide detailed information and there are statutory mechanisms in place to compel the provision of information, but this is not the most effective way to obtain information. The Commission relies on the voluntary provision of information to perform its functions and open and frank exchanges are integral to decision making.
Disclosing information without sufficient rationale would undermine this trust and make operators less likely to cooperate with requests in future. This would potentially result in the Commission having to use its more formal statutory powers in the future, leading to more guarded disclosures which would not be in the public interest. The emails alone would not be of any assistance in furthering the public debate in this matter as this is only part of the information that we hold and use to assess operator suitability.
Weighing the balance
The Commission acknowledges that there is a public interest in promoting the accountability and transparency of public authorities and the importance of having sufficient information in the public domain to support consumers with their choice of operator, however, disclosure of the information would be damaging to the Commission as a regulatory body which ultimately serves to protect the wider public interest.
It is important that the public are assured that the Commission is carrying out its functions in ensuring that any individuals/organisations who are involved in providing gambling facilities to the public have undergone the necessary assessments and will uphold the licencing objectives ensuring that consumers are protected.
However, there is a strong public interest in preserving the processes that the Commission has in place to assess operators’ compliance with the LCCP and identify any operators who will be unable to comply with the licensing requirements. The public trust that the Commission has robust processes in place to assess operators so that when they use the services provided by an operator, they are confident that there has been sufficient scrutiny of that operator to ensure that they are protected. If this information were released it would undermine that confidence.
Looking at all the circumstances of the case and the nature of the request, the Commission considers that the relevant prejudice identified above would be caused to the Commission by disclosure and this weighs in the balance when considering the question of public interest. Public knowledge of the conversations between a forensic accountant and other staff within the Commission is very unlikely to contribute to a proper understanding of the regulatory activities of the Commission. There is sufficient information already published on our website to satisfy the public interest in this matter in general terms and the independent report in relation to the collapse of BetIndex, which considers the Commission’s regulatory functions serve any specific public interest in that respect.
We consider that the public interest is better served by withholding the emails ensuring that consumers are protected through our processes rather than releasing information about our processes which in our view will not benefit the public as a whole.
Personal Information - Section 40
We consider the information that we hold relating to the email addresses, opinions and other information of Commission staff to be their personal information.
We have removed from emails information that we hold that relates to identifiable individuals which constitutes their personal data.
In reaching this decision we have taken into account the information that may also be available in the public domain which would enable staff to be identified. The information that has been redacted also contains details relating to members of staff’ private lives.
The Commission licenses and regulates the people and businesses that provide gambling in Great Britain. Its functions and powers in this respect are derived from the Gambling Act 2005 (the Act).
We recognise that there is a legitimate public interest in promoting the accountability and transparency of the Commission. In disclosing this information customers will have confidence that staff employed at the Commission are experienced within the industry and have the knowledge to discuss issues with colleagues on actions that they should take to resolve issues or take a relevant course of action.
However, we do not consider the disclosure of the personal information of members of staff is necessary as to do so would disclose the personal information of that individual. The individuals concerned also have the expectation that their information will not be shared unlawfully especially in circumstances where there is a potential risk to their health and safety.
Release of the information would cause unnecessary or unjustified damage or distress to members of staff due to the subject matter being discussed in emails and the strength of public feeling about these matters. There is likely to be unwanted attention from aggrieved customers of BetIndex who will target individuals specifically for the role that they have within the Commission.
Confidentiality – Section 41
Section 41 provides an exemption under the FOIA from the right to know where the information was provided to the public authority in confidence.
- Information will be covered by s.41 if:
i. it was obtained by the Commission from any other person (including another public authority),
ii. its disclosure would constitute a breach of confidence actionable by that or any other person.
- When deciding if disclosure would constitute a breach of confidence, the Commission had to consider:
i. Whether the information has the quality of confidence.
ii. Whether it was imparted in circumstances importing an obligation of confidence, and
iii. Whether disclosure would be an unauthorised use of the information to the detriment of the confider.
Section 41 is designed to give those who provide confidential information to public authorities, a degree of assurance that their confidences will continue to be respected, should the information fall within the scope of an FOIA request.
The information in the e-mails was given to the Commission in confidence, following a request for information. It has the quality of confidence and imparted in circumstances imparting an obligation of confidence.
Having considered your request and the information, the Commission has concluded that disclosure would constitute a breach of confidence, and BetIndex (along with its professional advisors) would have an actionable claim for breach of confidence.
The Commission considers that the public interest in disclosing this information to you is outweighed by the wider public interest in preserving the principle of confidentiality, and the impact that disclosure would have on the interests of BetIndex and its professional advisors.
The Commission depends and relies on the free flow of confidential information from operators that it regulates to perform its statutory function. The Commission’s ability to undertake its statutory functions would be significantly fettered if disclosure occurred. S41 gives those who give confidential information to public authorities a degree of assurance that their confidences will continue to be respected, should the information fall within the scope of an FOIA request.
Therefore, in light of the above, and on balance, this information is captured under the exemption set out in s. 41 of the Act. It will not be disclosed to you.
Legal Professional Privilege – Section 42
Section 42 provides an exemption under the FOIA for Legal Professional Privilege (LPP). Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.
LPP protects the confidentiality of free and frank communications between a legal advisor and a client.
The emails that are not being disclosed pertain to legal advice provided to Commission staff (clients).
The communications between the legal advisor and the client was provided for the main purpose of legal advice to the Commission.
There has been no previous disclosure of the information contained within the emails and therefore the advice remains confidential.
Public interest test
- The factors the Commission has considered when applying the public interest test have been detailed below and our view is that the public interest lies in favour of applying the exemption.
In favour of disclosure
The Commission is a public body which is required to regulate the gambling industry in the public interest. There is therefore a public interest in members of the public having confidence that the Commission is being open and honest with the information it holds so that it can be held to account.
There is public interest in knowing what legal advice was obtained in relation to Betindex so the public can be assured that the correct advice was provided, due to the number of individuals impacted by its collapse.
In favour of maintaining the exemption
There is a strong public interest in Commission staff being able to access full and frank legal advice without concerns that this advice will be disclosed.
Disclosure may hinder the candid nature of communications in the future which could be damaging to future decision making which is not in the public interest.
Disclosure may have a negative impact upon the frankness of legal advice provided and may even have an impact upon the extent that legal advice is sought. This would also not be in the public interest.
Weighing the balance
The Commission recognises that there is a public interest in disclosure of information relating to BetIndex, however, there is a greater argument in favour of safeguarding the communications between clients and their legal advisors to ensure access to full and frank legal advice. The advice provided is the opinion of a legally qualified individual and is not a definitive statement in law.
Disclosure of this information would infringe on the rights of Commission staff to gain legal advice on matters which ultimately could impact on consumers.
On balance, we consider that the public interest is better served by withholding the emails ensuring that the provision of legal advice is safeguarded.
Second internal review request
I am writing to request an internal review of Gambling Commission's handling of my FOI request 'Football index internal correspondence'.
I really appreciate the information released, but do feel that some of the exemptions do not apply.
Point 19: the company is in liquidation and its directors have been reported by the GC to the insolvency service. I think it is therefore very understandable to other gambling operators why information is released in this particular case.
Points 22-29: the GC have publicly announced that their processes have changed since the collapse of football index, so I don't believe that all of the processes would be relevant, and a gambling operator would not know what has and hasn't been changed since. Therefore releasing this information would not affect GC processes and operators could not exploit gaps based on the information. I'd also like to state that in Betindex's case, they did a pretty good job of witholding information from you, so I don't see the correlation between knowing the processes and exploiting the processes.
I understand about the safety of more junior members of staff and the rules on release of personal information, but given everyone would already know who the chief executive and directors were at the time, I don't envisage that senior officials would be affected by the release of what they sent from the stack of emails.
Second internal review response
Further to our response of 4 November 2022 and your subsequent request for a review dated 9 November 2022, in which you stated you do not consider some of the exemptions apply to the information we have provided, we have reviewed your request and our views have been set out below in relation to the points you raised.
Point 19: the company is in liquidation and its directors have been reported by the GC to the insolvency service. I think it is therefore very understandable to other gambling operators why information is released in this particular case.
Although BetIndex are no longer an active licence holder, disclosure of the discussions that have taken place between Commission staff about BetIndex could provide information about the processes that are followed as part of a licence review process that could reveal, for example, the types of information that we ask for or the questions that we ask to assess a particular area of an operator’s business.
As advised in our response, release of this information would undermine our assessment process as this information could be used by other operators to prepare information ahead of an assessment being undertaken which may not completely reflect the current operating position of that organisation. This would be detrimental to the assessment process and would ultimately impact on consumers.
Our arguments for not disclosing this type of information are consistent with our approach to how we would process any request for the same information about another operator for the reasons outlined above.
Where appropriate we publish information on our website with regards to any regulatory action that has been taken by the Commission. This ensures that there is consistency in the information that we publish and there is an awareness within the industry of what information will be made available without revealing the details of our specific techniques.
Point 19 was not intended to be considered in isolation and was to be read together with points 20 – 25 in our response letter detailing why the information that has been requested is exempt.
Points 22-29: the GC have publicly announced that their processes have changed since the collapse of football index, so I don't believe that all of the processes would be relevant, and a gambling operator would not know what has and hasn't been changed since. Therefore, releasing this information would not affect GC processes and operators could not exploit gaps based on the information. I'd also like to state that in Betindex's case, they did a pretty good job of withholding information from you, so I don't see the correlation between knowing the processes and exploiting the processes.
Following the report of the Independent Review into the regulation of BetIndex found here:
Report of the Independent Review of the Regulation of BetIndex Limited (opens in a new tab)
The following recommendations were made to improve regulatory practice:
a. Prioritisation of novel products for enhanced regulatory scrutiny
b. Greater focus on fairness of terms at the licensing application stage
c. Consideration of the effect of the language of investment and the financial markets on consumer understanding of gambling products
d. Greater licensing and continuing scrutiny of divergences between described and actual features of a product
e. Prompter decision making and action
f. Recognition for the need for internal escalation
g. Consideration of a different approach to customer funds in relation to long-term, tradeable products
The Commission has acted upon these recommendations and has incorporated these changes into its processes and procedures. Implementing these changes has not, however, fundamentally changed the process that the Commission follows when conducting an assessment to such an extent that we are now able to publicly disclose information that would further understanding of these processes without this having an impact on our current processes and statutory functions.
Personal details of staff
You also requested us to review the redaction of the names of senior officials from the information that we have provided to you.
As advised in our response we do not consider disclosure of the personal information of members of staff is necessary. The individuals concerned have an expectation that their information will not be shared unlawfully especially in circumstances where there is a potential risk to their health and safety.
We recognise there is a public interest in the collapse of BetIndex and there is a legitimate interest in holding those responsible to account. However in our view, disclosure of the emails satisfies the legitimate public interest and disclosure of the redacted names of officials would not further public understanding in this matter.Moreover in our view, the infringement of the data protection rights of those individuals by releasing their personal data is not outweighed by the interest in release, in this case.
Additionally on 9 November you sent us a follow up email requesting that the email suffixes included in the emails that have been provided to you are disclosed as disclosure would not release identifiable information. Our understanding is that your request is for the redaction applied to email suffixes to be removed.
After considering this request it is the Commission’s view that to remove the redaction from the email suffixes that have been applied to the emails provided to you, would be disproportionate and costly. Each email would need to be processed again from scratch as we are unable to remove specific redaction parts from the emails already processed.
However, we have reviewed the emails that were sent to you against the originals and have provided below the email suffixes of emails that were sent or received from third parties. The remaining emails were sent between Gambling Commission email accounts.
We have not provided the third-party email suffix for email number 83 as to do so could make an individual identifiable as the suffix contains personal data. There is no expectation that this individual’s personal information will be disclosed and there is no lawful basis to do so, therefore, this information is exempt under s40 FOIA – Personal Information.
| Email number | Page number(s) | From: Email address | To: Email address |
|---|---|---|---|
| 09 | 5 | @independent.co.uk | Exempt |
| 10 | 4 | @independent.co.uk | Exempt |
| 11 | 5 | @independent.co.uk | Exempt |
| 12 | 7 | @independent.co.uk | Exempt |
| 20 | 1 (from time 11:31),2,3 | @footballindex.co.uk | @footballindex.co.uk |
| 25 | 3 | @fca.org.uk | @fca.org.uk |
| 31 | 1 (from time 3:52pm),2,3,4 | @fca.org.uk | @fca.org.uk |
| 34 | 2 (from time 3:52pm),3,4,5 | @fca.org.uk | @fca.org.uk |
| 72 | 2 | @hendersonchambers.co.uk | Exempt |
| 74 | 3 | @hendersonchambers.co.uk | Exempt |
| 83 | 2 | Exempt S40 Personal Information | Exempt |
In conclusion, our view is that the S31 Law Enforcement exemption and the S40 – Personal Information exemption are maintained for the reasons outlined above.
If you are not content with the outcome of your review, you may apply directly to the Information Commissioner (ICO) for a decision. Generally, the ICO cannot make a decision unless you have exhausted the complaints procedure provided by the Gambling Commission. The ICO can be contacted at: The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.
Review of the decision
If you are unhappy with the service you have received in relation to your Freedom of Information request you are entitled to an internal review of our decision. You should write to FOI Team, Gambling Commission, 4th floor, Victoria Square House, Victoria Square, Birmingham, B2 4BP or by reply to this email.
Please note, internal review requests should be made within 40 working days of the initial response. Requests made outside this timeframe will not be processed.
If you are not content with the outcome of our review, you may then apply directly to the Information Commissioner (ICO) for a decision. Generally, the ICO cannot make a decision unless you have already exhausted the review procedure provided by the Gambling Commission.
The ICO can be contacted at: The Information Commissioner’s Office (opens in a new tab), Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.
Information Management Team
Gambling Commission
Victoria Square House
Victoria Square
Birmingham B2 4BP
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