Legal Advice re BetIndex
Request
In a letter from the FCA to the minister on the 24th March 2021 reference is made to " a third alternative and credible legal opinion" being provided to yourselves confirming the product fell within your remit as opposed to the FCA. Please provide the following :-
Please confirm if therefore two other legal opinions were obtained. Who instructed these opinions? Please provide a copy of the correspondence with the opinions and any supporting documents.
Please provide a copy of the third opinion which appears to have been instructed by BetIndex.
Response
Thank you for your request which has been processed under the Freedom of Information Act 2000 (FOIA).
Your request
In a letter from the FCA to the minister on 24th March 2021 reference is made to " a third alternative and credible legal opinion" being provided to yourselves confirming the product fell within your remit as opposed to the FCA. Please provide the following :-
Question One
- Please confirm if two other legal opinions were obtained.
- Who instructed these opinions?
- Please provide a copy of the correspondence with the opinions and any supporting documents
Question Two
Please provide a copy of the third opinion which appears to have been instructed by BetIndex.
Our response
Question One
The Commission sought a legal opinion from Leading Counsel on 10 March 2020 and this was received on 19 March 2020. This information is held by the Commission. However, this information is being withheld under Section 42 – Legal Professional Privilege on the basis that it is subject to legal advice privilege and the public interest test is in favour of maintaining the exemption.
A legal opinion was also sought from Leading Counsel by the FCA in May 2021. Given this legal opinion appears to have been obtained after the letter dated 24 March 2021 which is referred to in your request and makes reference to the legal opinions which had been obtained at that time, we do not consider that the legal opinion obtained by the FCA in May 2020 falls within the scope of your request. However, for the avoidance of doubt, we can confirm that this information is held by the Commission. If this information did fall within the scope of your request, it would be exempt under Section 42 – Legal Professional Privilege on the basis that it is subject to legal advice privilege. This was shared with the Commission under common interest privilege, and the public interest test lies in favour of maintaining the exemption. Further, this information would also be exempt under Section 41 Information provided in Confidence, on the basis that it was provided in circumstances of confidence, has the necessary quality of confidence and the public interest is in favour of maintaining the exemption.
Question 2
The Commission does hold a legal opinion which was obtained by BetIndex from Leading Counsel and which was provided to the Commission in December 2020. However, this information is exempt under Section 42 – Legal Professional Privilege on the basis that it is subject to legal advice privilege which was shared on a limited and confidential basis with the Commission, and the public interest test lies in favour of maintaining the exemption. Further to this, this information is also exempt under Section 41 – Information provided in Confidence.
Our considerations for engaging these exemptions are detailed below.
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 section 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 has to consider:
i. Whether the information has the quality of confidence.
ii. Whether it was imparted in circumstances imparting 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 a FOIA request.
The information requested was provided to the Commission in circumstances imparting an obligation of confidence and has the necessary quality of confidence.
Having considered your request and the information falling within scope of the request, the Commission has concluded that disclosure would constitute a breach of confidence which would be subject to an actionable claim for breach of confidence if this information was disclosed.
The Commission considers that the public interest in disclosing this information is outweighed by the wider public interest in preserving the principle of confidentiality, and the impact that disclosure would have on professional advisors and our working relationship with the FCA.
The Commission depends and relies on the free flow of confidential information from operators that it regulates to perform its statutory functions. 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 a FOIA request.
Therefore, in light of the above, and on balance, the requested information will not be disclosed and the S41 exemption is engaged.
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.
These records, which are not being disclosed, pertain to legal advice provided to Commission staff (clients) or to third parties who have provided the material to the Commission on the basis that the privileged status of the material is maintained.
The communications between the legal advisor and the client was provided for the main purpose of legal advice.
There has been no previous disclosure of the information 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.
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.
There is a strong public interest that third parties can share privileged legal advice with the Commission on a confidential basis (on the basis of “common interest privilege”) to allow frank and open discussion between parties.
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 the 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 information ensuring that the provision of legal advice is safeguarded.
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.
It should be noted that if you wish to raise a complaint with the ICO about the Commission’s handling of your request for information, then you are required to do so within six weeks of receiving your final response or last substantive contact with us.
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