Upper Tribunal ruling reveals eight cases where contempt applications made to First-Tier Tribunal over alleged failure to comply with earlier FTT freedom of information decisions

A recent Upper Tribunal ruling has revealed the existence of eight cases where the First-tier Tribunal (General Regulatory Chamber) (Information Rights) joined the Information Commissioner as a respondent to contempt applications made in respect of alleged failures by a party to meet obligations imposed on it by earlier FTT decisions, it has emerged.

Last week Local Government Lawyer reported on how the First-tier Tribunal (General Regulatory Chamber) Information Rights had 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 an FOI request.

The existence of the eight contempt application cases was revealed last month in Information Commissioner v Dr Gary Spiers and Garstang Medical Practice [2022] UKUT 93 (AAC).

In Spiers Upper Tribunal Judge Wright said that in each of the eight cases the Information Commissioner had applied to the Upper Tribunal for permission to appeal against the rulings of the First-tier Tribunal joining him to those contempt proceedings.

Judge Wright said he had stayed determining those permission to appeal applications until the Spiers appeal had been decided. He also, however, refused to suspend the effect of the FTT’s ‘joinder’ rulings in those other seven cases. “As I understand it, some at least of those other contempt applications have been determined by the First-tier Tribunal without the input of the Information Commissioner and without the First-tier Tribunal seeking to enforce its joinder ruling so as to obtain submissions on the contempt applications from the Information Commissioner.”

Judge Wright stressed that this decision of the Upper Tribunal was not about whether the Garstang Medical Practice had failed to comply with a decision notice substituted by the FTT. Nor was it about whether Garstang should or should not be certified for contempt under rule 7A (for which Dr Spiers had applied). Those matters remained to be addressed by the First-tier Tribunal, the judge said.

Instead, at issue in the Spiers case was whether it was lawful for the FTT (a) to join, under rule 9 of the GRC Rules, the Information Commissioner to the rule 7A ‘certification for contempt’ proceedings (assuming the Information Commissioner was not already a party to those proceedings), and (b) require the Information Commissioner to make submissions in those proceedings including submissions on “whether or not, and on what grounds, the Information Commissioner supports the application to certify an offence of contempt as regards Garstang Medical Practice”.

Allowing the Information Commissioner’s appeal, Judge Wright said the FTT had been correct in considering that the Information Commissioner was not a party to the rule 7A certification for contempt application brought by Dr Spiers and needed to be joined to those proceedings to be made a party.

“It was wrong in law, however, in my judgement, to join the Information Commissioner to those proceedings where the Information Commissioner had not asked, or consented, to be joined to the proceedings and where his interests or rights were not affected by the proceedings. And that is the case even though the decision or ruling under challenge on this appeal was a case management decision,” he said.

“I am satisfied…. that the decision to join the Information Commissioner to Dr Spiers’s rule 7A contempt application against Garstang was plainly wrong in law.”

Judge Wright stressed that his ruling concerned a situation where the FTT required the Information Commissioner to be a party in Dr Spiers’s rule 7A contempt application against the Garstang Medical Practice.

“It would arguably have been open to the First-tier Tribunal, and for some of the reasons it gave, to have invited the Information Commissioner to become a party and assist the First-tier Tribunal on matters of general approach to this new area of its jurisdiction, though possibly that would have been needed only in one or two test cases. That may arguably have placed the Information Commissioner in an appropriate amicus role and accorded with his general duties under section 47 of FOIA. But that is not what occurred here,” the judge said.