Tribunal Refuses Certification of Contempt in FOIA Case Against Council for Non-Compliance with Decision Notice

Citation: [2023] UKFTT 1051 (GRC)
Judgment on

Introduction

The case of Claire Stretton v The Royal Borough of Windsor and Maidenhead & The Information Commissioner [2023] UKFTT 1051 (GRC) concerns an application for certification of contempt against the respondents for failing to comply with a substituted decision notice relating to a request for information under the Freedom of Information Act 2000 (FOIA). The First-tier Tribunal (General Regulatory Chamber) on Information Rights was tasked with determining whether the application should be granted, by analyzing if the act or omission in question would constitute contempt if the proceedings were before a court with the power to commit for contempt. This article explores the key facts, legal principles, and outcomes from the case.

Key Facts

The case centers around a request made by the applicant, Claire Stretton, for an unredacted copy of a report concerning complaints about a councillor and council officers, authored by Richard Lingard. Initially deemed exempt from disclosure by the Royal Borough of Windsor and Maidenhead (the Council) under sections 41(1) and 40(2) FOIA, the Tribunal in a previous case (EA/2021/0092) partly allowed an appeal against this decision. The Tribunal ordered the Council to disclose certain information within a set deadline. When the Council failed to comply within the given timeframe, Stretton applied for certification of an offence of contempt against the respondents.

Several legal principles and Tribunal rules are pertinent to this case:

  1. Contempt of Court: Rule 7A of The Tribunal Procedure (General Regulatory Chamber) Rules 2009 and section 61 FOIA provide the framework for certifying offences of contempt. The Tribunal must consider if the action or inaction would constitute contempt if it occurred in a court having the power to commit.

  2. Clarity of Tribunal Orders: As per Harris v Harris [2001] and Kea Investments Ltd v Eric John Watson & Ors [2020], the burden of proof lies on the applicant to prove a real and serious breach of a clear and unambiguous order.

  3. Standard of Proof: The standard of proof in contempt proceedings is the criminal standard (beyond a reasonable doubt), as stated in JSC Mezhdunarodniy Promyshellnniy Bank v Pugachev [2016].

  4. General Propositions of Law Regarding Contempt: Navigator Equities Ltd & another v Deripaska [2021] highlighted that contempt applications must be proportionate and for legitimate ends, and that orders and undertakings must be strictly complied with even if burdensome.

  5. Tribunal’s Discretion: Even where contempt is proven, the Tribunal has discretion whether to certify the offence, considering whether the breach was accidental or wilful and assessing the proportionality of such certification (Information Commissioner v Moss and The Royal Borough of Kingston upon Thames [2020]).

Outcomes

The Tribunal concluded that the applicant met the burden of proof and established, beyond a reasonable doubt, that the Council was guilty of failing to comply with the substituted decision notice before the deadline. However, the failure was deemed negligent rather than wilful. It was determined that certification of contempt would be disproportionate due to factors such as the Council’s lack of resources and work overload. Therefore, the application to certify the contempt was refused.

Conclusion

The ruling demonstrates the importance of public authorities adhering to Tribunal decisions and meeting their obligations under FOIA. Despite the finding of negligence, the Tribunal emphasized the gravity of complying with legal orders and the significance of Tribunal decisions in the administration of justice. The decision not to certify contempt, while acknowledging the Council’s failure, underlines the Tribunal’s careful consideration of all circumstances and the application of proportionality in enforcing its decisions. This case reinforces the principles that govern the enforcement of orders within the FOIA legislative framework, and it stands as a reminder to public authorities of their imperative to comply with such orders and the serious implications of failing to do so.