UKFTT-GRC 2025 368 [2025] UKFTT 368 (GRC) 0.26.20 325ec756548d3fd3d865290137ff4456ab061ea630f36bd63390c00688e92dc7
7.3.0
NCN: [2025] UKFTT 00368 (GRC)
Case Reference: FT/EJ/2024/0006
First-tier Tribunal
(General Regulatory Chamber)
Enforcement
Before
JUDGE MOAN
TRIBUNAL MEMBER TAYLOR
TRIBUNAL MEMBER SIVERS
Between
PETER CLEASBY
Applicant
and
UNIVERSITY OF EXETER
Respondent
Decision: The application to certify a contempt is granted.
The application will be transferred to the Upper Tribunal.
The application was considered on the papers – all parties consented to a determination without a hearing.
REASONS
1.
On 29 th January 2024 in case number EA2023.0310 , the Tribunal allowed the Applicant’s appeal against the decision of the Information Commissioner and made a substitute decision notice in the following terms –
1.The Respondent was not entitled to rely on section 40(2) or section 41 to withhold the information requested in part 2 of the request, or to redact that information (or related identifying information such as job titles/roles) from the information released in response to part 5 of the request.
2.
The part of the Commissioner’s decision notice relating to the name of the Chair was not subject to appeal and remains in force.
3.
A copy of this decision shall be sent to the public authority by the Tribunal.
4.
The public authority shall disclose the information requested in part 2 of the request to the requestor within 42 days of the date this decision is sent to the public authority by the tribunal.
5.
Any failure to abide by the terms of the Tribunal’s substituted decision notice may amount to contempt which may, on application, be certified to the Upper Tribunal.
2.
On 2 nd April 2024, the Applicant notified this Tribunal (copying in the Respondent) that the Respondent had not complied with the substituted decision notice. He requested action to ensure compliance. The Applicant was provided by the Tribunal with form 7A to complete on 17 th April 2024.
3.
On 2 nd June 2024, the Applicant submitted his completed contempt application by email. He explained within that application that he was asking for an extension of time to submit his application. The compliance deadline was midnight on 12 th March and any contempt application should have been lodged no later than 28 days thereafter. The Applicant said that he had been in correspondence with the University before deciding whether to issue the application. He said that none of the documents that had been provided included the requested information in full.
4.
The Applicant said that on 5 th April 2024 the University had enclosed seven documents. The Respondent provided some information about the members of the Community Panel. The agendas and minutes supplied gave details of those members of the Community Panel from the University but only the initials of other members and no indication as to their representative role.
5.
The Respondent said in the 5 th April email that –
“ Some attendees have since used their ‘right to be forgotten’, others whom we only have initials for, some participants do not give consent for us to hold their data, and some sta ff members have retired and/or changed positions. Some documents in 2022 did not have individual names, just University sta ff as reference .”
6.
Following further correspondence between the parties, the Respondent on 16 th May 2024 sought to rely on the right to erasure to withhold details of residents who were members of the respective panels. The email described that individuals could make a request for erasure verbally or in writing and that at the start of each meeting attendees are reminded of the FOIA requirements. The Respondent did not have details on how many members, which members and on what date those members had exercised their right to be forgotten. The Respondent was not able to identify how many of the members that had exercised their right to be forgotten were still members of the respective panels. The Applicant expressed his incredulity at the responses given by the Respondent.
7.
Upon receipt of the contempt application, directions were made on 10 th July 2024 allowing the Respondent time to make observations about the Applicant’s application for permission to lodge the contempt application outside of the time limit in the Rules. No response was received to this Order.
8.
On 19 th September 2024, the Tribunal gave permission to the Applicant to make his application out of time and gave directions for the Respondent to respond to the application for contempt. No response was received to that Order.
9.
Those directions were re-issued on 7 th November 2024 when it was noted that the directions dated 10 th July and 19 th September 2024 were sent to a different email address than the email address notified by the Commissioner for service of the judgement in January 2024. Those directions were acknowledged by the Respondent on 12 th November 2024 from the same email box as that used to promulgate the decision including the substituted decision notice. It transpired later that the Respondent confirmed that both email boxes were in use (see para 12 below).
10.
On 5 th December 2024, the Respondent applied to strike out the contempt application. The Respondent submitted that it was not a party to the original appeal and was unable to appeal the original decision. It said it had responded to the Applicant with the detail it was able to give in accordance with the substituted decision notice. Following the production of the original meeting minutes, a number of members of the public who attended previous meetings made a request for their personal data to be forgotten and the Respondent complied with that request. The request to be forgotten had been made after the FOIA request and the substituted decision notice. The Respondent had provided the information that it held. That documentation included minutes with the initials of senior staff members included. The Respondent could not provide any right to be forgotten forms as the requests were made verbally at a meeting.
11.
The Applicant replied to that response indicating his concerns about the chronology and that the members appeared not to be able to exercise their right to be forgotten under Article 17 after the substituted decision notice had been issued.
12.
Further case management directions were issued on 2 nd January 2025 but erroneously sent to the email address that the July and September 2024 directions were issued to. Notwithstanding that error, the Respondent confirmed receipt verifying that indeed both email boxes were in use.
13.
A further case management order was issued on 7 th January 2025 dismissing the application to strike out the contempt application. The Respondent was reminded that Article 17 GDPR did not appear to apply noting that requests to be forgotten post-date the substituted decision notice. Both parties were invited to file their final evidence they relied on albeit the Respondent was advised that they may wish to avoid the necessity for a contempt hearing by providing the information requested as confirmed by the substituted decision notice. Both parties were given a window for determination which started on 17 th February 2025. The application could be determined at any stage thereafter.
14.
On 21 st January 2025, the Respondent applied to strike out the application on the basis of compliance. They attached a copy of the Community Panel minutes dated 17 th October 2022 which was unredacted as far as attendees’ names were concerned. It shows the role of staff from the University but it was not clear if the remaining attendees were all residents or not and there was no information at all relating to the Resident’s Liaison Group.
15.
The Applicant’s final submissions dated 10 th February 2025 emphasised that the substitute decision notice had still not been complied with. In summary, he said –
“The information now provided by the University does not provide any information about the Residents’ Liaison Group nor does it show which organisation or interest the non-university Community Panel members represent. Accordingly I submit that the Respondent has not discharged the obligations placed on it.”
16.
On 10 th February 2025 the Respondent submitted a copy of the Community Panel minutes dated 20 th June 2022. As with the October 2022 minutes, the names of those attending the meeting were visible and the roles of University staff highlighted. The Respondent said in the covering email that it believed it had provided all the information required by the decision notice.
17.
The Applicant replied to the Tribunal and the Respondent indicating that he was not convinced the Respondent had answered the points in his submissions about the information provided and that information which was missing.
The original request for information
18.
The panel hearing the original appeal confirmed that the appeal related to requests for information under the Freedom of Information Act 2000 pertaining to two University groups - the Exeter Community Panel and the Resident Liaison Group. The aim of the Community Panel was to help the University to identify local issues, challenges and opportunities, and to engage with the local community and be more responsive to the needs of all social groups. The Community Panel was made up of members of University staff and local residents. The purpose of the Resident Liaison Group was to liaise with community representatives and other partners to take stock of concerns and queries relating to University/Community relations and to explore strategies that aim to improve specific concerns in partnership with other agencies. The Resident Liaison Group was made up of members of University Staff, representatives from Exeter City Council (ECC) and Devon and Cornwall Police and local residents.
19.
The Applicant had made a request for information on 31 st October 2022 which comprised of seven parts. The University had responded to six of the seven parts of that request but had withheld the information in part 2 namely, “ the names of its members, and which organisation/interest each member represents ” relying on section 40(2) (personal data) and section 41 (confidential information) of FOIA.
20.
Following a complaint by the Applicant, the Commissioner had agreed that the Respondent could rely on the personal data exemption. Section 41 had not been considered by the Commissioner.
21.
The University’s response to part 3 of the request explained that there were nine members of the Community Panel who represented six wards from across the city (Exeter). The University further explained that members of the Residents’ Liaison Group comprised of representatives from Resident's Associations, City Councillors (who often represent feedback and comment from individuals that are not associated with a Resident's Association), City Council staff and Devon and Cornwall Constabulary's Neighbourhood Beat Manager for the University area and the University’s staff. The identity of the Chair of the Community Panel had been disclosed.
22.
After a full consideration of the competing submissions, the Tribunal considered that the Panels were both outward facing groups and that there was no suggestion that potential members were ever told that their membership would be kept private. Disclosure of their membership of those groups was within the reasonable expectations of membership and that there was a reasonable likelihood of occasional scrutiny of the meetings which might lead to local reporting. Ultimately, the Tribunal concluded that the Respondent could not rely on section 40(2) (or indeed section 41) and the Respondent was not allowed to withhold membership details as requested by part 2 of the request.
23.
The Tribunal sent a copy of its decision to the Respondent on 30 th January 2024 by email to each of the email addresses that are referred to within the chronology above.
Position of parties in this application
24.
Both parties have consented to a paper hearing. It was appropriate to deal with the application in that way as it would be apparent from the papers whether the information was or was not provided, and both parties had been given ample time to respond to the issues. We are satisfied that we can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.
25.
At all times the Tribunal has sought to facilitate the provision of the requested information to bring the contempt proceedings to a swift conclusion.
26.
The Respondent has not filed any witness evidence to be considered. It has sent the Applicant and the Tribunal two copies of minutes of the Community Panel which gives names of the attendees. The minutes do not highlight if there were members of the Panel not included in the attendees list or their interests. No information was provided about the Resident’s Liaison Panel.
27.
The Applicant has repeatedly made submissions to the Tribunal that the Respondent has still to comply with the substituted decision notice. The Respondent has not directly responded to those submissions.
The Legal Framework for a contempt application
28.
The powers of the Tribunal are to be found in sections 61(3) and (4) of FOIA 2000 –
(3)
Subsection (4) applies where—
(a)
a person does something, or fails to do something, in relation to proceedings before the First-tier Tribunal on an appeal under those provisions, and
(b)
if those proceedings were proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court.
(4)
The First-tier Tribunal may certify the offence to the Upper Tribunal.
29.
The 2009 Rules provide details of the procedure to be followed. The procedures were not contentious in this application but are contained in Rule 7A.
30.
The power of contempt is to be considered amongst the other provisions of FOIA 2000 namely –
(i)
The power of the Information Commissioner under section 50 to make a decision upon application;
(ii)
The power of the Information Commissioner under sections 52 and 54 to enforce its own decision; and
(iii)
The creation of a criminal offence under section 77 of altering etc information with the intent to prevent disclosure.
The delineation of powers and responsibilities are a clear reflection of the will of Parliament.
31.
The power to certify an act or omission as a contempt has two distinct phases. Firstly, the Tribunal will consider whether the Respondent has committed an act or omission that would amount to a contempt and secondly, whether the First Tier Tribunal should exercise its discretion to certify the contempt to the Upper Tribunal.
32.
In Rotherham Metropolitan Borough Council v Harron & The Information Commissioner's Office and Harron v Rotherham Metropolitan Borough Council & The Information Commissioner's Office: [2023] UKUT 22 (AAC) Farbey J said -
At para 53 “… There is no power to compel a public authority to comply with a substituted decision notice. In the context of para 8 of Schedule 6 to the 1998 Act, the UT has held that there is a power to punish for not doing so, although that power may operate as an incentive to comply (Information Commissioner v Moss and Royal Borough of Kingston Upon Thames [2020] UKUT 174 (AAC) , para 1). I see no reason to take a different view. ”
33.
And at para 54 -
“54.
The principle that proceedings for contempt of court are intended to uphold the authority of the court and to make certain that its orders are obeyed is longstanding (for a recent restatement, see JS (by her litigation friend KS) v Cardiff City Council [2022] EWHC 707 (Admin) , para 55). A person who breaches a court order, whether interim or final, in civil proceedings may be found to have committed a civil contempt. Given the nature and importance of the rights which Parliament has entrusted twenty-first century Tribunals to determine, the public interest which the law of contempt seeks to uphold – adherence to orders made by judges – is as important to the administration of justice in Tribunals as it is in the courts. There is no sound reason of principle or policy to consider that any different approach to the law of contempt should apply in Tribunals whose decisions fall equally to be respected and complied with.”
34.
In that case, Mrs Justice Farbey also restated the principles elucidated by the Court of Appeal in Navigator Equities Limited v Deripaska [2021] EWCA Civ 1799 , para 82 as they apply to contempt –
“The following relevant general propositions of law in relation to civil contempt are well-established:
i)
The bringing of a committal application is an appropriate and legitimate means, not only of seeking enforcement of an order or undertaking, but also (or alternatively) of drawing to the court’s attention a serious (rather than purely technical) contempt. Thus a committal application can properly be brought in respect of past (and irremediable) breaches;
ii)
A committal application must be proportionate (by reference to the gravity of the conduct alleged) and brought for legitimate ends. It must not be pursued for improper collateral purpose;
iii)
Breach of an undertaking given to the court will be a contempt: an undertaking to the court represents a solemn commitment to the court and may be enforced by an order for committal. Breach of a court undertaking is always serious, because it undermines the administration of justice;
iv)
The meaning and effect of an undertaking are to be construed strictly, as with an injunction. It is appropriate to have regard to the background available to both parties at the time of the undertaking when construing its terms. There is a need to pay regard to the mischief sought to be prevented by the order or undertaking;
v)
It is generally no defence that the order disobeyed (or the undertaking breached) should not have been made or accepted;
vi)
Orders and undertakings must be complied with even if compliance is burdensome, inconvenient and expensive. If there is any obstacle to compliance, the proper course is to apply to have the order or undertaking set aside or varied;
vii)
In order to establish contempt, it need not be demonstrated that the contemnor intended to breach an order or undertaking and/or believed that the conduct in question constituted a breach. Rather it must be shown that the contemnor deliberately intended to commit the act or omission in question. Motive is irrelevant;
viii)
Contempt proceedings are not intended as a means of securing civil compensation;
ix)
For a breach of order or undertaking to be established, it must be shown that the terms of the order or undertaking are clear and unambiguous; that the Respondent had proper notice; and that the breach is clear (by reference to the terms of the order or undertaking).”
35.
In the case of Information Commissioner v Moss [2020] UKUT 174 (AAC) , the Upper Tribunal concluded that, noting the enforcement powers that already existed under Rules 7 and 8 of the 2009 Rules, that not much else is left for section 61 of FOIA to deal with, apart from non-compliance with a substantive decision of the First Tier Tribunal.
Analysis of the evidence and respective submissions
36.
The Applicant’s case was simple. The Respondent did not comply within 42 days or at all. They have not provided all of the information required by the substituted decision. This allegation was clear and concise. The terms of the decision notice were very clear; no party has suggested otherwise.
37.
The Respondent was sent the original appeal documents for case number EA2023.0310 on 28 th June 2023. The Respondent was aware of the appeal and decided not to respond or seek joinder. That was their prerogative. They chose not to be a party and not to make submissions or adduce evidence.
38.
Whether a party or not, the Respondent is bound by the decision of the Tribunal. The Respondent did not seek permission to appeal that decision which was within their gift nor have they done so to this day, even though they are now significantly out of time to do so.
39.
The Respondent was required to respond within 42 days of receipt of the substituted decision notice. The Applicant asserts that they did not respond within that time period; the Respondent does not submit that they did respond within the 42 day time limit. There is no evidence before us to conclude that they did respond within the time period allowed. The Respondent appears to apologise for the delay in responding in their emails to the Applicant. Whilst that is less weighty in terms of whether such failure to comply should be certified; the failure to engage with the substituted decision notice within the time allowed is part of a bigger picture of non-compliance.
40.
The Respondent has not provided any final evidence to consider. Its engagement with this process has been to submit two strike out applications and send in two sets of minutes. They have at no time addressed their failure to respond to the decision notice as sent in January 2024 or to make submissions in response to the Applicant’s clear submissions that they have not complied, even when pointed to relevant paragraphs of those submissions by the Applicant.
41.
The substitute decision required the Respondent to provide the names of the members of each for the two groups and the interest they represent. Whilst the names of some attendees at two meetings of the Community Panel have been disclosed, a full membership list has not been provided or confirmation that those minutes include all members, and furthermore their representative interest has not been confirmed either. The Respondent has not provided any information about the membership of the Resident’s Liaison Group at all or the interest that they represent. The Tribunal found that the Respondent has not complied with the substituted decision notice, either prior to the contempt proceedings or during them.
42.
The Tribunal has then considered whether that failure was wilful, inadvertent or something in between. The Respondent has engaged minimally with this Tribunal and with the Applicant. Their engagement has been in effect to seek to avoid the release of the information by referring to Article 17 or to submit that they needed to obtain the information from the Information Commissioner. There were less than credible claims that they did not have the information and some references to the deletion of the information; which is not only concerning in terms of contempt proceedings but raises issues under section 77 of FOIA as to whether recorded information has been deleted to prevent disclosure.
43.
The information requested was supplied to the Information Commissioner in May 2023 and indeed to the Tribunal as part of the original proceedings. It is less than credible that the Respondent cannot recover that information and provide it to the Applicant. It is also not credible that the right to be forgotten, if indeed engaged, was not documented in the minutes or elsewhere. If not documented, how would the Respondent have a record of which members had exercised that right. In any event, on their own submission any right to be forgotten was requested after the substituted decision was communicated. It is not plausible that this Respondent cannot provide the information; in our judgment, they consistently seek to avoid their obligation to do so. In that regard, the respondent has shown flagrant disregard for the Tribunal’s decision and consequential substituted decision notice.
44.
The Tribunal are satisfied so that we are sure that the Respondent has knowingly and wilfully failed to comply with a substituted decision notice of the First Tier Tribunal which would constitute a contempt of court.
45.
The Tribunal has made repeated invitations to the Respondent to provide the information. The Applicant has had to spend his time and resources bringing this application in circumstances when the Tribunal has already examined the respective positions of the parties. Public funds have been utilised by both the Tribunal and the Respondent in dealing with this issue. At a time of austerity and a difficult financial landscape, the Tribunal doubts that the unnecessary use of public resources in this application would be perceived to be a constructive use of taxpayers’ funds.
46.
On the facts and chronology, the Tribunal concluded that the Respondent has sought to avoid their obligations under the decision notice. The failure was wilful and continues. Certification of this contempt is required to uphold the authority of the Tribunal and to persuade this Respondent to comply in circumstances where the extant threat of contempt proceedings has failed. The Tribunal also considered that it would send an entirely wrong message to public authorities about their obligations under FOIA should this contempt not be certified. This was not a technical or single breach but a contrived and persistent failure that is still ongoing.
47.
The Tribunal recognised that certification was draconian and should be a vehicle of last resort. However, the Tribunal unanimously agreed that it was proportionate and appropriate to certify the contempt and transfer the case to the Upper Tribunal for further steps. The Respondent is urged to fully comply with the substituted decision notice in the meantime which may mitigate any action taken by the Upper Tribunal.
48.
Accordingly, the application to strike out the contempt is refused.
District Judge Moan sitting as a Judge of the First Tier Tribunal
27 th March 2025
Promulgated
31 st March 2025