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FOI enforcement starts to get serious?

Posted on 12 April 2022

Recently, we wrote about the first known certification of an offence of contempt for failure to comply with a decision made under the Freedom of Information Act 2000 (FOIA). It seems that there may be more cases in the wings. 

In a decision by the Upper Tribunal on a procedural matter in relation to another potential certification of contempt, the judge notes that it is one of eight cases, to his knowledge, where an application for certification of contempt is being considered by the First-tier Tribunal. Both the First-tier Tribunal and the Information Commissioner can certify failure to comply with decisions to a higher court to be dealt with as contempt. It is not known whether the Commissioner is yet considering making any certifications.

The new Commissioner, John Edwards, has already said that addressing concerns about timely access to information under FOIA will be "a priority" for him. If there is also going to be an increase in successful applications for certification of contempt, then those public authorities (including some Government departments) which might traditionally have thought that there is little sanction for failing to comply with FOIA will have to reappraise their position. 

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