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Failure to comply with FOI notice is contempt of court

Posted on 7 April 2022

Failure by a public authority to comply with certain decisions and orders made under The Freedom of Information Act 2000 ("FOIA") may be 'certified' to the High Court, and the Court may, after inquiring into the matter, deal with the authority as if it had committed a contempt of court.

Since FOIA became enforceable in 2005 there had been, at least until recently, no such instances of certification to the High Court. This should not be a surprise: contempt is a serious matter, and is potentially punishable by committal to prison. Public authorities, and their senior management, would never wish to be in such a position

However, on 28 March 2022, the First-tier Tribunal made the decision to certify contempt on the part of the Royal Borough of Kingston-Upon-Thames ("Kingston") to the High Court. This arose from the failure by Kingston to comply with a previous decision of a (differently-constituted) First-tier Tribunal in 2017. There is a rather complex history to the matter. The original FOIA request to Kingston, from a Mr Moss, had been made in February 2016. Mr Moss had complained, under section 50 FOIA, to the Information Commissioner, who issued a decision notice finding that Kingston had complied with its obligations. Mr Moss appealed that decision to the First-tier Tribunal which upheld his appeal, and - in line with section 58 - substituted a new notice requiring Kingston to take specified steps, within thirty working days, to comply with Mr Moss's request. Kingston failed to do this.

The judgment of the First-tier Tribunal notes the "well-established" general propositions of law in relation to civil contempt (see Navigator Equities Limited v Deripaska [2021] EWCA Civ 1799) which include that: 

"In order to establish contempt, it need not be demonstrated that the contemnor intended to breach an order or undertaking and/or believed that the conduct in question constituted a breach. Rather it must be shown that the contemnor deliberately intended to commit the act or omission in question. Motive is irrelevant."

The Tribunal found that a Kingston employee had been served with a copy of the 2017 First-tier Tribunal decision, and had told Mr Moss that Kingston would be giving him the information "as per the Tribunal's requirement". However, this didn't happen until March 2021, four years later (rather than the thirty working days required by the decision). This was, the Tribunal determined, an intentional failure by the Kingston employee to take the steps specified in the decision, and Kingston was vicariously liable for the acts and omissions of that employee.

The punishment to be visited on Kingston will now be a matter for the High Court. Although a committal application or fines are, in principle, available, the Court could merely make a public finding that Kingston has breached the Tribunal’s order and impose no further punishment. That in itself, notes the Tribunal in its final paragraph, "would further the public interest in the administration of justice and is likely to cause others to be more diligent in their response to Decisions of this Tribunal".

There is considerable concern from many experts that FOIA compliance and enforcement have been inadequate in recent years. An open letter on this point with more than 100 signatories was recently sent to the new Information Commissioner, John Edwards, who has said in reply that addressing these concerns will be a priority for him. He might also choose to note the words of counsel for Mr Moss at the hearing, quoted with approval by the Tribunal:

"the purpose of the FOIA regime is to enhance transparency and accountability of public bodies by enabling members of the public to receive timely information on matters of public interest. In this context, information can swiftly become out of date or be rendered irrelevant if there is a significant passage of time between the request being made and the information being provided. It should be recalled that the starting point is that a public authority should provide information in response to a FOIA request promptly and within 20 days."

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