Tribunal's Discretion in Certifying Contempt under FOIA Examined in Graham Garner v Shardlow & Great Wilne Parish Council

Citation: [2023] UKFTT 1067 (GRC)
Judgment on

Introduction

In the case of Graham Garner v Shardlow & Great Wilne Parish Council [2023] UKFTT 1067 (GRC), the UK First-tier Tribunal (General Regulatory Chamber) on Information Rights addresses a matter of compliance with a Substituted Decision Notice under the Freedom of Information Act 2000 (FOIA) and contemplates the exercise of its discretion to certify an offence of contempt to the Upper Tribunal. This article dissects the tribunal’s findings, illuminating the pertinent legal principles applied in the case.

Key Facts

Graham Garner (the Applicant) made a Freedom of Information request to Shardlow & Great Wilne Parish Council (the Respondent). The request concerned a laurel hedge pruning incident that occurred without the Applicant’s consent. After the Information Commissioner’s decision, the First-tier Tribunal issued a Substituted Decision Notice requiring the Council to disclose certain information to the Applicant within a defined timeframe. The Council failed to comply within the specified time, leading to an application by the Applicant to certify an offence of contempt against the Council.

The Tribunal applied several legal principles in considering whether to certify an offence of contempt:

  1. Clarity of Tribunal Orders: The Tribunal confirmed that the terms of its Substituted Decision Notice were sufficiently clear and unambiguous to potentially found a contempt of court if the Tribunal were a court with the power to commit for contempt.

  2. Proper Notice of Tribunal Decisions: The Tribunal determined that proper notice of its decision was given to the Council, and thus, the Council was bound to comply.

  3. Standard of Proof: Given the serious nature of allegations of contempt, the Tribunal applied the criminal standard of proof, meaning they had to be satisfied beyond a reasonable doubt of any fact before finding it proven.

  4. Wilful Disobedience and Contemptuous Attitude: The Tribunal considered whether the Council’s failure to comply was accidental, wilful, or a result of a contemptuous attitude.

  5. Discretion to Certify Contempt: Even if contempt is established, the Tribunal has the discretion under S.61(4) FOIA whether to certify the offence to the Upper Tribunal.

  6. Proportionality and Administration of Justice: In accordance with the principle espoused by Farbey J in Rotherham Metropolitan Borough Council v Harron & The Information Commissioner [2023] UKUT 22 (AAC), the Tribunal must consider whether certification of contempt serves the administration of justice and if issuing a contempt order is a proportionate response.

Outcomes

The Tribunal concluded:

  1. The Council’s late provision of the material constituted a failure to comply with the decision of the Tribunal, which in another context would amount to contempt of court.

  2. The Council’s actions, while not accidental, were not deemed wilful as to suggest a contemptuous attitude toward the Tribunal or the administration of justice.

  3. Any contempt order would be disproportionate given the Council did eventually provide the requested information and had expended considerable resources on the case.

  4. Certification of contempt to the Upper Tribunal was deemed unnecessary as it would not further the administration of justice.

Therefore, the application to certify contempt against the Council was refused.

Conclusion

The case of Graham Garner v Shardlow & Great Wilne Parish Council illustrates the need for public authorities to understand their statutory obligations under FOIA and the serious implications of non-compliance with Tribunal decisions. While the Council failed to comply within the set timeframe, ultimately, the Tribunal exercised discretion not to certify contempt due to the Council’s lack of wilful disobedience and the disproportionate nature of a potential contempt order. The case underscores the Tribunal’s emphasis on proportionality, the administration of justice, and the discretionary nature of certifying contempt.