Financial Assessment of Football Index

Request

On 26 February 2020 during the financial assessment of Football Index Person F confirmed that the Market Maker had been spoken to on 25 February.

Please provide redacted transcript of that conversation together with any slides that were presented. It can be presented in the same way as the detailed financial assessment. ICO have ruled this in the public interest and any failure to disclose will be presented to Stuart Andrew immediately.

As REDACTED was conducting Market Making activities in his role as Head of Trading at this time, then also please provide any details of the third party Market Maker (LP001) owned by Index Labs Limited "market making policy" which must have been referred to you and if not why not.

Response

Thank you for your request which has been processed under the Freedom of Information Act 2000 (FOIA). Please accept our apologies for the delay in responding to you.

In your email dated 18 July 2023 you requested the following information:

On 26 February 2020 during the financial assessment of Football Index Person F confirmed that the Market Maker had been spoken to on 25 February. Please provide redacted transcript of that conversation together with any slides that were presented. It can be presented in the same way as the detailed financial assessment. ICO have ruled this in the public interest and any failure to disclose will be presented to Stuart Andrew immediately. As REDACTED was conducting Market Making activities in his role as Head of Trading at this time then also please provide any details of the third party Market Maker (LP001) owned by Index Labs Limited “market making policy” which must have been referred to you and if not why not.

Please find attached a copy of the draft Market Maker Policy. Personal information relating to identifiable individuals has been redacted from the Policy.

We have reviewed the transcript of the meeting that was held on 25 February, and it is our view that the transcript is exempt from disclosure in its entirety and S40(2) Personal Information is engaged.

The Data Protection Act 2018 requires the processing of personal data to be fair and lawful. The Commission considers that any disclosure of the transcript would disclose the personal data of a third party, It would therefore be disproportionate for us to publicly disclose this information unless there is a strong public interest in doing so. This individual in the position of Market Maker has a legitimate expectation that their personal information will not be disclosed in the context in which it is held.

On balance, there is no legitimate public interest in disclosing this information and it would not be fair to do so.

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

I can confirm that there were no slides presented in the assessment. During the assessment, the representatives of BetIndex shared a screen with participants where they demonstrated the system.

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

Internal Review Request

I would like to request a formal review.

Please redact any names and personal information from the transcript. Persons can be referred to by letters.

Internal Review Response

I am writing to you, further to your Freedom of Information request dated 18/07/2023 which we responded to on 24/08/2023, and your subsequent request for an internal review received on 24/08/2023.

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.

In your initial email you requested the following information:

On 26 February 2020 during the financial assessment of Football Index Person F confirmed that the Market Maker had been spoken to on 25 February.

Please provide redacted transcript of that conversation together with any slides that were presented. It can be presented in the same way as the detailed financial assessment. ICO have ruled this in the public interest and any failure to disclose will be presented to Stuart Andrew immediately.

As REDACTED was conducting Market Making activities in his role as Head of Trading at this time then also please provide any details of the third party Market Maker (LP001) owned by Index Labs Limited “market making policy” which must have been referred to you and if not why not.

In our response, we provided a copy of the draft Market Maker Policy subject to redactions relating to identifiable individuals under S40(2) (Personal Information) of the FOIA.

Further to this, we advised that any further information falling within the scope of your request, i.e. the transcript of the meeting that was held on 25 February, was exempt from disclosure in its entirety and S40(2) of the FOIA was engaged.

Your request for an internal review of our response focuses on the withholding of the transcript of the meeting that was held on 25 February.

Internal Review

Section 40 Personal information subsection (2) states that any information to which a request for information relates is also exempt information if—

(a) it constitutes personal data which does not fall within subsection (1), and (b) the first, second or third condition below is satisfied.

In this case the relevant condition is contained in section 40(3A)(a).

(3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act—

(a) would contravene any of the data protection principles,

This applies where the disclosure of the information to any member of the public would contravene any of the principles relating to the processing of personal data as set out in Article 5 of the UK General Data Protection Regulation (UK GDPR).

Firstly, we must determine whether the withheld information constitutes personal data. Section 3(2) of the Data Protection Act 2018 (DPA) defines personal data as:

‘any information relating to an identified or identifiable living individual’.

The two main elements of personal data are that the information must relate to a living person and that the person must be identifiable. An identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual. Information will relate to a person if it is about them, linked to them, has biographical significance for them, is used to inform decisions affecting them or has them as its main focus.

The FOI request itself speculates as to the identity of the Market Maker, which we neither confirm nor deny. The transcript, when read alongside the FOI request, could potentially identify an individual. On this basis, disclosure of the requested information could disclose personal data of a third party/parties.

This information therefore falls within the definition of ‘personal data’ in section 3(2) of the DPA.

Secondly, we must establish whether disclosure of that data would breach any of the DP principles. There are seven data protection principles. In this case, it is principle (a) which is relevant to this request.

Principle (a) states:

‘Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject…’

Article 5(1)(a) of the UK GDPR states that “Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject”. This means that the information can only be disclosed if to do so would be lawful, fair and transparent.

In order to be lawful, one of the lawful bases listed in Article 6(1) of the UK GDPR must apply to the processing. It must also be generally lawful.

Article 6(1) of the UK GDPR specifies the requirements for lawful processing by providing that “processing shall be lawful only if and to the extent that at least one of the” lawful bases for processing listed in the Article applies.

The Commission considers that the lawful basis most applicable is basis 6(1)(f) which states:

“processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child”.

In considering the application of Article 6(1)(f) of the UK GDPR in the context of this request for information under FOIA, it is necessary to consider the following three-part test:

i) Legitimate interest test: Whether a legitimate interest is being pursued in the request for information; ii) Necessity test: Whether disclosure of the information is necessary to meet the legitimate interest in question; iii) Balancing test: Whether the above interests override the legitimate interest(s) or fundamental rights and freedoms of the data subject.

Legitimate interest

In considering any legitimate interest(s) in the disclosure of the requested information under FOIA, the Commission recognises that a wide range of interests may be legitimate interests. They can be the requester’s own interests or the interests of third parties, and commercial interests as well as wider societal benefits.

Football Index was granted a gambling license by the GC and launched in October 2015. It was marketed as a platform for individuals to gamble on football players. The Gambling Commission suspended Football Index’s gambling license in March 2021, and it entered administration shortly after, leaving approximately £90 million worth of customer stakes trapped in the platform.

The Commission accepts that, in the case of Bet Index, the requestor, as well as the wider public, has a legitimate interest in understanding the Gambling Commission’s regulatory oversight of this company.

Necessity, is disclosure necessary?

In the context of the FOIA, ‘necessary’ means more than desirable but less than indispensable or absolute necessity.

Accordingly, the test is one of reasonable necessity and involves consideration of alternative measures which may make disclosure of the requested information unnecessary. Disclosure under the FOIA must therefore be the least intrusive means of achieving the legitimate aim in question.

The Commission, although it accepts the legitimacy of the requestor’s interests, does not consider that disclosure is necessary, given the volume of information made available regarding the collapse of Bet Index. The Commission argues that the third party/parties would not expect their representations during the transcribed meeting to be disclosed to the world at large.

Balancing

Finally, it is necessary to balance the legitimate interests in disclosure against the data subject’s interests or fundamental rights and freedoms. In doing so, it is necessary to consider the impact of disclosure.

In this case, the third party/parties would have a reasonable expectation that their information will not be disclosed. Disclosure could expose them to unwanted and potentially distressing contact or abuse.

Following the collapse of Bet Index, in April 2021 the Department for Media, Culture and Sport (DCMS) commissioned an independent review ‘to examine in detail the actions taken by the Gambling Commission in the period from September 2015 up to the suspension of BetIndex’s licence in March this year.’ Therefore, Football Index has already been subject to the robust scrutiny of the GC and an independent government inquiry, rather than focusing on the performance or the behaviour of certain individuals.

Ultimately, the disclosure of this personal data would not contribute to any constructive debate about the collapse of Football Index and for that reason, when weighed up against the consequences that disclosure would illicit, the legitimate interest in disclosure does not outweigh the fundamental rights and freedoms of the data subject.

As such, I uphold the decision to withhold the information under section 40(2), by way of section 40(3A)(a).

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.

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