High Court set to consider contempt of court finding against council over failure to comply with Tribunal FOI decision

April 19, 2022

The First-tier Tribunal (General Regulatory Chamber) Information Rights has certified an offence of contempt by the Royal Borough of Kingston-upon-Thames to the High Court of failing to comply with the terms of a Tribunal decision in relation to a freedom of information request.

The applicant, Derek Moss, had in February 2016 requested information from the council under the Freedom of Information Act 2000 regarding a local regeneration project. The local authority refused this request on 9 March 2016, relying on section 12 FOIA (exemption where cost of compliance exceeds appropriate limit).

While the council was giving consideration to his request for an internal review, Mr Moss complained to the Information Commissioner’s Office (ICO) under section 50 FOIA.

This was dismissed by the ICO, with the watchdog having been satisfied by Kingston’s explanation as to why compliance would exceed the relevant cost limit imposed by section 12 FOIA. The ICO said it was also satisfied that section 16 FOIA (the duty to provide advice and assistance) had not been breached by the council in its dealings with Mr Moss.

Mr Moss appealed to the FTT against the ICO’s decision notice. In March 2017 the tribunal dismissed his appeal in relation to section 12 FOIA but allowed his appeal in reliance on section 16 FOIA. Mr Moss subsequently appealed those aspects of the FTT’s decision in relation to which he had been unsuccessful, but that appeal was dismissed by the Upper Tribunal in a decision in July 2020. Kingston was not a party to the appeal before the FTT.

In the meantime Mr Moss considered that Kingston had failed to comply with the FTT’s decision. He asked the ICO to enforce the FTT’s decision but the ICO said it considered that it was for the tribunal to enforce its own decisions.

In February 2018 Mr Moss applied to the FTT for an order that the council was in contempt of court as a consequence of its failure to comply with the tribunal’s decision. By a further application dated 25 March 2018 Mr Moss applied to the FTT to certify an offence of contempt of court as against both Kingston and the ICO (the application against the latter was later to fall away).

The FTT’s Registrar struck out the applications on the basis that the FTT had no jurisdiction to consider them. This was confirmed by the then Chamber President in June 2018.

In May 2020 the Upper Tribunal allowed an appeal by the Information Commissioner insofar as it related to Mr Moss's 25 March 2018 application for certification. In doing so, it concluded that the FTT had power to enforce its decisions pursuant to section 61 FOIA and that the ICO does not have a duty to enforce such decisions.

It was also relevant that on 5 March 2019, upon its own application, Kingston had been made a party to the proceedings before the Upper Tribunal. The council had previously been served with relevant papers in relation to the ICO’s appeal against the Chamber President’s decision, in late 2018. By way of an email of 25 October 2019, Kingston requested the Upper Tribunal to direct that it should not be permitted to take further part in the appeal, and in directions of 1 November 2019 the Upper Tribunal barred Kingston from further participating.

The matter came before Upper Tribunal Judge O'Connor for case management on 16 June 2021, at which time it was concluded that the following issues were to be determined at the final hearing:

Had Kingston been served with a copy of the decision endorsed with a "contempt" (i.e. penal) notice? If "no", did it matter?
Was Kingston guilty of any act or omission in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute a contempt of court?
If Kingston was "guilty of an act or omission in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute a contempt of court", should the Tribunal exercise its discretion to certify a contempt to the High Court?

It was submitted on behalf of Moss that:

Kingston had been aware of the FTT’s decision since at least 23 March 2017.
The decision of the Tribunal was clear and unambiguous.
Kingston did not provide any section 16 advice and assistance to Mr Moss within 30 days of the date of the FTT’s decision, as was required by that decision.
Kingston did not provide Mr Moss with a list of stakeholders (the part 4 information) within 30 days of the date of the tribunal’s decision, as was required by that decision.

In response, the council submitted amongst other things that it was not a party to the appeal in the First-tier Tribunal, which it claimed was "fatal" to the contempt application. Nor had it been made party to the contempt application, it argued. However, the FTT later dismissed these arguments.

Kingston also submitted that, although it accepted that the terms of the Tribunal's decision were clear and that it did not comply with the Tribunal's decision, its lack of compliance was unintentional and arose from a failure of communication rather than a deliberate act or omission.

Counsel for the local authority said: "The Tribunal must be satisfied that there was either 'knowing disobedience' of the Tribunal's decision 'at a corporate level' by Kingston, or systemic shortcomings."

They added: "Kingston is not liable for the behaviour of individual rogue employees. There must have been an endorsement of the employees' behaviour by the corporate body that is Kingston. This cannot be demonstrated."

However, in Derek Moss Royal Borough Of Kingston-Upon-Thames (Allowed) [2022] UKFTT 2018_0007 (GRC) the FTT found that the council had failed to comply with the First-tier Tribunal's decision and that the failure constituted a contempt of court.

The FTT concluded that the council became aware of the FTT’s decision in March 2017, when it was served to it by email on the then Risk Assurance Team Leader at the council.

The tribunal said: "The overwhelming inference we draw is that [the then Risk Assurance Team Leader] intentionally failed to provide advice and assistance to Mr Moss within 30 days of the Tribunal's decision so as to enable him to reformulate a request for information that falls within the appropriate cost limit, and that he intentionally failed to provide the information requested in Part 4 of the request of 16 February 2016."

The FTT went on to find that "beyond reasonable doubt" the acts and omissions of [the then Risk Assurance Team Leader] in dealing with Mr Moss and in failing to provide the required advice, assistance and information "were the acts and omissions of Kingston".

The FTT noted that there was an important public interest in protecting the administration of justice, and this included the need for compliance with the orders of the Tribunal. The Tribunal had an interest, on behalf of the community at large, in ensuring that its orders were not disobeyed. "In our conclusion, for the reasons given above, if these proceedings were proceedings before a court having power to commit for contempt, the failure by Kingston to comply with the Tribunal's Decision […] would constitute contempt of court.”

The FTT did refuse Mr Moss’s application to certify a contempt of court for Kingston’s breach of an undertaking given to the Tribunal. It concluded that it could not be said that the council gave an undertaking or promise to the Tribunal.

It went on to say however: “Looking at the circumstances of the case in the round, including but not limited to those matters referred to above and the fact that Kingston was not, albeit through choice, a party to the proceedings before the Tribunal, that the Tribunal's decision did not contain a penal notice, that Kingston have now complied in substance with the Tribunal's decision, we nevertheless conclude that discretion should be exercised to certify Kingston's contempt to the High Court.

"In reaching this conclusion we place significant weight on the length of time it took Kingston to comply with the Tribunal's decision, given the purpose of the FOIA regime."

The FTT added: “As we have previously stated, the Tribunal has an interest in ensuring that there is compliance with its orders. Punishment of those who do not comply with its orders clearly furthers that interest.

“Were the High Court also to conclude that Kingston had acted in contempt, the nature of any punishment would be entirely a matter for that Court. However, even a public finding that Kingston breached the Tribunal’s order, and imposition of no further punishment, 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.”

In a statement on its website Kingston Council said: “A single complaint relating to a FOI request originally made to the council in February 2016, was upheld against the council on 1 April 2022.

“This followed a decision of the Tribunal in March 2017 upholding the council’s refusal of the request but requiring the council to provide advice to the requestor on how to reformulate his FOI request within 30 days.

“The Tribunal accepted this has been remedied over a year ago. The case will now be considered by the High Court who will determine whether the omission to provide the advice amounted to a contempt of court.

“Since this historic oversight, the council has introduced significant changes to its policies and procedures. The council is now consistently responding to FOI requests within statutory timescales and meets the ICO's expectations.”

Adam Carey