Communications regarding BetIndex

Request

Dear Sir/Madam,

Re: Requests for information under the Freedom of Information Act 2000 dated 19 October 2022 and 25-27 October 2022

I write regarding your letter received by email on 16/11/22 and would like to amend my 19 requests to a more manageable number. My requests were not designed to result in a disproportionate level of disruption but to gain further information and understanding regarding the Commission’s actions regarding Betindex Limited and associated companies.

Therefore, I am withdrawing my previous 19 FOI requests and am making 5 new requests below:

1. 8th March 2021 meeting with Betindex requested 27/10/22
2. 7th February 2020 Licencing Division letter to Betindex and response requested 26/10/22
3. 1st July 2019 internal email regarding operating licence for Betexchange requested 26/10/22
4. 24th September 2019 FCA Intelligence Division email requested 26/10/22
5. 4th March 2018 Betindex submitted a letter in response describing the business requested 26/10/22

Response

Dear Sir

Thank you for your request which has been processed under the Freedom of Information Act 2000 (FOIA).

In your email you have requested:

1. On or around 4 March 2018 Betindex Limited submitted a letter in response to it’s financial position describing the business. Please supply a full copy of this letter redacted where necessary.
2. On 1 July 2019 an internal email was sent by a member of the Commission’s Licencing Division regarding the application submitted for an operating licence for Betexchange. Please provide a copy of that email and any subsequent responses to that email, redacted where appropriate.
3. On 24 September 2019 the FCA’s Intelligence Division emailed the GC General Counsel regarding Betindex Limited. Please provide a copy of that email, redacted where appropriate.
4. On 7 February 2020 the Licencing Division wrote to Betindex Limited seeking further information. Please provide a copy of that letter and the response received on 11 February 2020 in full, redacted where appropriate.
5. On 8 March 2021 GC officials met with Betindex to gain an explanation about the dividend announcement and potential administration. Please provide minutes and written notes regarding this meeting, redacted where appropriate. If the meeting was held online a copy of the video and audio as well please.

I can confirm that information is held falling within the scope of your request.

Please note, in respect of point five of your request, no minutes were taken and there was no video or audio recording.

Please find attached information we are able to provide in relation to parts one, two and five of your request.

Some of the information contained within these documents is exempt and had been redacted as follows:

Documents 04.03.2018 and 08.03.2021 contain information which we consider to be exempt under s31 - Law Enforcement

Document 01.07.2019 contains information which we consider to be exempt under s42 - Legal professional privilege

We have redacted from all of the attached documents, information relating to identifiable individuals that would constitute personal data under s40 – Personal data

The remaining documents that we hold which also fall within the scope of your request, of which there are approximately five, we consider to be exempt in their entirety by virtue of s31 of the FOIA

Our considerations for engaging these exemptions are detailed below.

Legal Professional Privilege – Section 42

Section 42(1) 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 documents that are not being disclosed pertain to legal advice provided to Commission staff (clients).
• The communications between the legal advisor and the client were provided for the main purpose of legal advice to the Commission.

Public interest test

The factors the Commission has considered when applying the public interest test have been detailed below.

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 documents ensuring that the provision of legal advice is safeguarded.

Law Enforcement – Section 31

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)(a) refers to the purpose of ascertaining whether any person has failed to comply with the law, ii. Subsection 31(2)(b) refers to the purpose of ascertaining whether any person is responsible for any conduct which is improper, iii. 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, iv. 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) Undermine the Commission’s ability to fulfil its 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.
• The release of internal emails between members of staff and direct correspondence with operators will have an impact on our statutory functions, by providing information to enable licensees to understand what information is assessed and 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) Impact the Commission’s objective of 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.

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 to this, 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 these documents 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 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.

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 internal conversations between Commission staff and specific correspondence with operators 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 documents 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

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 contained within the attached documents would constitute the disclosure of personal data and would contravene this principle.

This includes the email addresses, opinions and any other personal identifiable information.

This information is therefore exempt under section 40(2) of the Freedom of Information Act 2000

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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