Stephen Parker v Guildford Borough Council

This application relates to alleged breach of compliance with the Tribunal’s decision issued on 20 August 2025 (the “Decision”) in appeal number FT/EA/2025/0029 concerning a request under the Environmental Information Regulations 2004 (“EIR”)

The issue in the Decision was whether the Information Commissioner (“IC”)’s decision concerning information held by Guildford Borough Council (the “Council”), which is the Respondent for the purposes of this application and was the second Respondent in relation to the original appeal, was in accordance with the law. The IC’s decision was challenged by the Applicant, who considered that the Council had not conducted adequate and comprehensive searches for the information requested and improperly withheld material information. He also considered that the IC had not properly investigated the inconsistencies and omissions identified by the Applicant and that the IC’s Decision Notice (the “DN”) had failed to address credible evidence of non-disclosure.

The Tribunal decided that the Council was likely to be holding relevant information beyond that which has already been disclosed. Accordingly, the DN was not in accordance with the law and, to the extent that the notice involved an exercise of discretion by the IC he ought to have exercised it differently.

The Tribunal allowed the appeal and issued a Substituted Decision Notice (“SDN”) within the Decision. This read as follows:

“Guildford Borough Council ("the Council") shall within 35 days of being sent this Decision:-

(a)

review the letter from the Respondent of 9 September 2024 (pages 2196 to 2198 of the Bundle) and ensure that all the enquires required by the Respondent in that letter about information said to be not held have been considered.

(b)

search for any relevant information created by any person who has left the Council where such information remains stored by the Council and if it no longer is in existence set out the reason it has ceased to exist if necessary by reference to a destruction policy.

(c)

search the Council's Teams system for any relevant information created by use of the Teams message function and provide details of the Council's retention period for this system.

(d)

send to the Appellant a response (indexed and paginated):-

(i)

setting out the outcome of the reviews set out in (a) to (c) above

(ii)

and provide him with any additional relevant information identified or confirmation that none had been identified.

(iii)

listing the key words and combinations of key words used for the searches.

(iv)

and provide him with a copy of the item dated 28 February 2024 referred to on page 2553 of the Bundle unless paragraph (d)(v) applies.

(v)

if the Council seeks to rely on reg 12(4)(d) Environmental Information Regulations 2004 as suggested on 19 November 2024 to the Respondent (2253) for the information referred to in (iv) above or any other information it shall explain to the Appellant the basis of this reliance.

(vi)

with an explanation as to how the letter from "Claire" refers to her in the third person and, if it exists, provide any information relevant to this and in scope of the Request unless an exception is said to apply in which case the Council shall explain this to the Appellant.

(e)

the Council shall not be required to provide information if it considers that Regulation 13 Environmental Information Regulations 2004 applies but if it does consider it applies it shall set that out and explain its position to the Appellant.”

The Decision was sent to the parties on 20 August 2025, so the period for complying with the SDN expired on 24 September 2025.

The Applicant made an application to the Tribunal by way of form GRC4 dated 25 October 2025 for the Tribunal to certify a contempt to the Upper Tribunal under section 61 of the Freedom of Information Act 2000 (“FOIA”). In this, he stated that the Council had not complied with the SDN, “continues to send piecemeal updates and refuses to confirm compliance. It has also admitted “continuing to withhold emails from Feb 2023” contrary to the Tribunal’s order.”

Judge Roper issued directions in the application on 28 November 2026, which directed that the Council should respond to the Applicant’s allegations within 28 days.

The application was determined without a hearing. No request for an oral hearing was received from the Council in response to the Tribunal’s directions, so I consider it to be fair and just to determine the matter on the papers.

Where the First-Tier Tribunal (“FTT”) has substituted a decision notice for that of the IC, the FTT is responsible for enforcing that substituted decision. This was decided by the Upper Tribunal in Information Commissioner v Moss and the Royal Borough of Kingston upon Thames [2020] UKUT 174 (AAC) (“Moss”).

The relevant law is contained in section 61 of FOIA:

“(1)

Tribunal Procedure Rules may make provision for regulating the exercise of rights of appeal conferred by sections 57(1) and (2) and 60(1) and (4).

……

(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, an

(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.

(5)

Where an offence is certified under subsection (4), the Upper Tribunal may –

(a)

inquire into the matter, and

(b)

deal with the person charged with the offence in any manner in which it could deal with the person if the offence had been committed in relation to the Upper Tribunal.”

As confirmed in Moss, the FTT does not have power to compel a public authority to comply with a substituted decision notice or to actually commit for contempt, but does have the power under these provisions to certify an offence to the Upper Tribunal. Under section 61(4) FOIA, the FTT has a discretion to certify an offence to the Upper Tribunal only where it is satisfied that the requirements of both limbs of section 61(3) have been met i.e. that “a person” has done something or failed to do something in relation to proceedings before the Tribunal in appeals brought pursuant to sections 57 or 60 of FOIA and, if the proceedings were proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court.

There is no mention in FOIA as to the required standard of proof by which the allegation of contempt must be judged. In the ordinary course, given the seriousness of contempt proceedings, the standard of proof by which the contempt must be demonstrated is the criminal standard of beyond reasonable doubt.

If such an offence is proven to the required standard, the Tribunal must then consider whether, in all the circumstances of the case, discretion should be exercised so as to certify the offence to the Upper Tribunal.

In Navigator Equities Limited v Deripaska [2021] EWCA Civ 1799, the Court of Appeal set out a helpful summary of general propositions of law in relation to contempt, which it considered to be “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. ……

(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).”

A Substituted Decision Notice issued by the FTT may be endorsed with a penal notice, which warns the parties that failure to comply may result in the tribunal making written certification of this fact to the Upper Tribunal and this may be dealt with as a contempt of court. If there is no penal notice, a party can still make an application to certify for contempt. The absence of a penal notice is relevant to whether the Tribunal should exercise its discretion to certify, in circumstances where a contempt has been found.

The Upper Tribunal case of Penny Bence v Cornwall Council & Anor [2025] UKUT 420 (AAC) summarised the role of the FTT in relation to an application for contempt in paragraph 96 as follows:

“a.

The role of the FTT when deciding whether to exercise the certification power in section 61(4) FOIA is, firstly, to determine whether the relevant person has done something or failed to do something in relation to the appeal before it that by its nature is capable of constituting a contempt had it occurred in proceedings before a court or a tribunal with power to commit for contempt. It is not the FTT’s role to decide whether a contempt has been committed;

b.

If the FTT concludes this is the position, then, secondly, it will proceed to consider its discretion to certify. In exercising this discretion it will consider, in particular, whether the conduct in question is sufficiently serious as to warrant a contempt inquiry and possibly sanction;

c.

At the first stage, in assessing whether the act or omission in question is capable of constituting a contempt had it occurred in proceedings before a court or a tribunal with power to commit for contempt, the FTT will bear in mind the ingredients of a civil contempt (which I address at paragraphs 104 – 114 below);

d.

At the second stage, in exercising its discretion and forming a view as to the seriousness of the matter, the FTT will bear in mind the observations of Lewis LJ (paragraph 91 above); that whether the order was intentionally breached will be relevant to the way the conduct is viewed when it comes to the question of sanction (paragraphs 110 – 114 and 127 below); that applications for contempt should not be disproportionate (paragraph 85 above); the other factors that may impact on the sanction that could be imposed (paragraphs 127 – 128 below); and (where applicable) the role of contempt proceedings where orders are breached by public authorities (paragraphs 98 – 101 below);

e.

The potential contempt described in the FTT’s certification in effect identifies the “charge” that the Upper Tribunal will then inquire into. Accordingly, it should be formulated with as much clarity as is reasonably possible, albeit not in a way that unduly circumscribes the latter’s role of inquiring into the contempt (as the Upper Tribunal has no jurisdiction to inquire into matters that go beyond the terms of the FTT’s certification).”

Witness evidence

The Applicant, Mr Parker, submitted a witness statement dated 12 January 2026. This set out the following chronology:

Mr Parker’s witness statement identified the following ways in which he said the Council’s response to the SDN amounted to non-compliance:

The Council submitted a witness statement from Ciaran Ward, its Head of Information Governance, dated 22 December 2025. In summary, Mr Ward raised the following points:

The Applicant made submissions on 14 January 2026 in relation to the application. In summary, he made the following points:

The Council made submissions on 22 December 2025. In summary, it raised the following points:

Following the decision of the Upper Tribunal in Bence, I have adopted the stages of consideration for deciding whether to exercise the certification power summarised in that decision.

The first step is to determine whether the relevant person has done something or failed to do something in relation to the appeal before it that by its nature is capable of constituting a contempt had it occurred in proceedings before a court or a tribunal with power to commit for contempt. I note that the Council accepts that its conduct was capable of amounting to a contempt, but the Tribunal has to decide for itself whether the conduct is capable of constituting a contempt. In considering this, I need to take into account the ingredients of a civil contempt which were discussed by the UT at paragraphs 104-114 of Bence. These include that the order to be enforced should not be ambiguous. The key elements are quoted at paragraph 108 of Bence as follows:

“In FW Farnsworth Ltd v Lacy [2013] EWHC 3487 (Ch) paragraph 20, Proudman J explained the elements that are to prove as follows:

“A person is guilty of contempt by breach of an order only if all the following factors are proved to the relevant standard: (a) having received notice of the order the contemnor did an act prohibited by the order or failed to do an act required by the order within the time set by the order; (b) he intended to do the act or failed to do the act as the case may be; (c) he had knowledge of all the facts which would make the carrying out of the prohibited act or the omission to do the required act a breach of the order.”

In the circumstances of this case, I consider that there is clear evidence of failure to act in accordance with the SDN; the Council was ordered to provide a fresh response to the Applicant within 35 days by the SDN and failed to do so.

The second element to consider is whether the Council intended to fail to do the act. Fraser LJ in Buzzard-Quashie v Chief Constable of Northamptonshire Police[2025] EWCA Civ 1397 at paragraph 62 observed that “Intention to commit contempt, or intention specifically to disobey an order, is relevant to the sanction for contempt. It is not a pre-condition to a finding of contempt. This has been the common law for a very long time.” Fraser LJ went on at paragraph 64 to say that the requisite intention is “simply the intention to do the act or omission that constituted the breach of the order, not any intention to interfere with the administration of justice or to commit contempt”. The evidence of Mr Ward is that he was struggling to comply with the deadline. In my view, this is knowing failure to comply within the prescribed timetable, and that he knew if would not comply. This is different from an intention wilfully not to comply, but I note that when challenged by the Applicant Mr Ward stated that he would respond in due course, which could be construed as having elements of intention not to respond immediately. I consider that this element is present here.

As to the third element, the position is less clear, as there was no penal notice within the SDN spelling out what the consequences of non-compliance would be. However, as users of the Tribunal the Council could be expected to have at least some knowledge of the fact that failure to comply could result in certification proceedings.

Considering this in the context of the FTT’s role in certifying contempt, and in light of the Council’s admissions, I find that the conduct of the Council in not providing a response, complete or otherwise, within the period specified and providing a late and piecemeal response is conduct which to is capable of constituting contempt; whether in fact it is contempt is a matter for the UT.

The first part of the test is therefore satisfied in my view in relation to the late submission of a response, so I must proceed to consider whether to exercise the Tribunal’s discretion to certify.

The Applicant argues that the Council’s response remains incomplete after its response dated 19 December 2025 and that this is also continuing conduct which is capable of amounting to contempt. The Upper Tribunal in Harron v Rotherham MBC & IC [2026] UKUT 48 (AAC) held that it is for the IC, not the FTT to decide whether a response to a substituted decision notice is compliant with FOIA. In that decision, UT Judge Stout gave the following reasons at paragraphs 37-43:

“37.

First, because (as was observed in Moss and Bence), section 61(3)-(5) of FOIA do not make provision for the enforcement of substituted decision notices in that they do not provide power for the First-tier Tribunal to compel a public authority to comply with the notice. Rather, the sub-sections create a contempt jurisdiction for the First-tier Tribunal, to be operated by the Upper Tribunal upon the First-tier Tribunal certifying the offence for the Upper Tribunal’s consideration. The purpose of the contempt jurisdiction is to further the administration of justice by protecting, and securing compliance with, the authority of the court or tribunal (see [25] above).

38.

Secondly, and accordingly, where the potential contempt is breach of the Tribunal’s order, the principles developed in relation to civil contempt in the ordinary courts apply. The focus is always on whether or not the order has been breached (see above [26]-[28]). As the Navigator principles make clear, the law of contempt does not create any secondary cause of action or open up any new substantive jurisdiction. Nor is it concerned with whether the ‘spirit’ of the order has been fulfilled (VietJet: above, [27]). Orders that are ambiguous or otherwise unclear cannot properly form the basis of a contempt application. A person can only be held in contempt if the order is clear onits face and the person has, by intentional act or omission, breached the order (intentional in this context meaning that the act or omission was intended: the person may be in contempt even if they did not intend to breach the order).

39.

Thirdly, there is no provision in section 61 (or elsewhere in FOIA) giving the First-tier Tribunal primary responsibility for determining whether a public authority has complied with FOIA. The primary responsibility for determining whether a public authority has complied with FOIA lies with the IC under section 50: the First-tier Tribunal’s jurisdiction is a secondary, appellate role (albeit one in which it ‘stands in the shoes’ of the IC once the appeal is before it).

40.

Fourthly, it follows from my second and third points that, unless the substituted decision notice states in terms that the public authority must provide a response that ‘complies’ with FOIA, there is no mechanism by which the First-tier Tribunal may become responsible for making that assessment on an application for certification of contempt under section 61. I agree with Mr Knibbe and Mr Paines that there is ordinarily no room in the law of contempt for implying into an order a requirement that the body to whom the order is directed should provide a “lawful” or “reasonable” response (or similar). Doing so in most cases would introduce uncertainty as to the order’s effect that will render it unsuitable as a basis for a contempt application. It would also cut across the scheme of the Act, which places the primary responsibility for determining whether a public authority has complied with FOIA on the IC.

41.

Fifthly, if (notwithstanding my fourth point) a First-tier Tribunal were to specify in a substituted decision notice that the public authority must provide a response to the request that complies with FOIA, then in principle a response that failed to comply with FOIA could be made the basis of an application under section 61(3) and (4). However, a First-tier Tribunal could only properly certify a contempt in relation to a substituted decision notice in such terms if it was satisfied: (i) that the order was sufficiently clear in its effect as to be capable of forming the basis of a contempt application; and (ii) the First-tier Tribunal was, as a matter of discretion, satisfied that it was appropriate to certify the case for the consideration of the Upper Tribunal (see [29] above).

42.

Sixthly, a substituted decision notice is still a decision notice (see Moss at [25] and [35]). It is relatively common under the FOIA regime for the IC (and, in turn, the First tier Tribunal) to determine (as happened in this case) that the public authority’s initial reliance on a particular exception in Part II of FOIA, or on section 14 (vexatious or repeated requests), was not compliant with FOIA and to direct the public authority to provide a fresh response to the request not relying on that exception or section 14. In such cases, the public authority’s revised response may rely on (other) exceptions in Part II of FOIA or otherwise raise issues that are wholly different to those that were considered by the IC or the First-tier Tribunal when considering the lawfulness of the public authority’s initial reliance on section 14. In cases where the IC’s initial decision notice has not been appealed, there is plainly no difficulty with the IC considering a complaint under section 50 in relation to the public authority’s revised response: the public authority’s response to the initial IC decision notice remains a response to a request made under section 1 of FOIA. In cases where the IC’s initial decision is appealed and the First-tier Tribunal issues a substituted decision notice, then that isalso ‘just’ a decision notice, and the response to it also remains a response to a request made under section 1 of FOIA. It follows that there is no difficulty in principle with the IC considering a complaint under section 50 in relation to the response to that substituted decision notice. Indeed, that will normally plainly be the appropriate route given that the public authority’s revised response will be relying on an exception that the First-tier Tribunal has not dealt with at all so as a matter of principle it is unlikely that the revised response could constitute a contempt of the Tribunal. It is only if, and to the extent that, the public authority fails to comply with the terms of First-tier Tribunal’s order, such that it is appropriate to treat it as a contempt of the First-tier Tribunal, that section 61 certification becomes a way of dealing with the situation (or the appropriate way of dealing with the situation if the public authority fails to respond at all).

43.

In the present case, I am satisfied that the First-tier Tribunal did not err in law in refusing Mr Harron’s application under section 61. The First-tier Tribunal’s Substituted DN required only that RMBC issue “a fresh response to the Appellant’s request, not relying on section 14”. RMBC did that on 12 July 2024. It was therefore open to the First-tier Tribunal to conclude that RMBC had complied with the terms of its order and that this was not therefore a case that was capable of constituting a contempt so as to make it appropriate even to consider exercising the discretion to certify (see [29] above). The question of whether RMBC complied with FOIA in thus responding, and in particular whether it made an adequate search (applying the Bromley principles) was a matter that Mr Harron could make the subject of a complaint to the IC under section 50 of FOIA. And it will now be a matter for the First-tier Tribunal when Mr Harron’s appeal against the IC’s new decision notice is heard in March 2026.”

Following Harron, where a substituted decision notice is issued by a Tribunal, this is a fresh decision against which a complaint may be made to the IC under section 50 FOIA and which does not fall to be considered by this Tribunal unless or until any finding by the IC is appealed in due course. This applies equally to requests for information under the Environmental Information Regulations 2004 (EIR) as it does to requests under FOIA. The appropriate step for the Applicant if, as here, he is dissatisfied with the response he has received, as opposed to where no response has been received, is accordingly to make a section 50 complaint, not seek certification. Accordingly I find that the Applicant’s issues with the completeness or adequacy of the response received do not amount to conduct which the Tribunal can certify for contempt to the UT.

The Court of Appeal in Moss (Lewis LJ), cited at paragraph 91 of Bence, made it clear that “If the FTT is satisfied that the act or omission is one which by its nature is capable of committing a contempt had it occurred in proceedings before a court or tribunal with power to commit for contempt, then it “will decide whether to exercise its discretion to certify...because, for example the act or omission is sufficiently serious to warrant inquiry and possibly sanction” (paragraph 43, emphasis added).”

At this stage, following Bence, in considering whether to exercise its discretion and forming a view as to the seriousness of the matter, the FTT will bear in mind the following:

As discussed above, I consider that the order was knowingly breached, but do not consider that there is strong evidence that it was intentionally so.

In considering this factor, I gave weight to the Council’s argument that it would be disproportionate to certify given that a response has now been given and an apology tendered. This is against the background of a long and complex relationship between the Council and the Appellant. Against too the fact that the Applicant is pursuing other avenues such as additional information requests and judicial review proceedings to get the information he seeks, it is not clear to me what a sanction for contempt would add in these circumstances.

Paragraphs 127 and 128 of Bence set out the following factors which may be relevant to this part of the analysis as follows:

“127.

Matters such as later compliance (as opposed to ongoing non-compliance), an apology, an explanation for the default and a lack of intention to flout the order fall to be considered whether deciding whether to impose a sanction and, if so, at what level: Moss HC at paragraph 85 and JS v Cardiff City Council at paragraph 53.

128.

I do not seek to provide an exhaustive list of matters that will be relevant to sanction. However, I note that in addition to those identified in the preceding paragraph, the following are likely to be relevant: the length of time the contempt lasted; the seriousness of the contempt, including the number of acts or omissions involved; the resources and support available to the contemnor to assist with avoiding the commission of the contempt; and the extent to which the respondent has taken steps to rectify matters and avoid future repetition.”

In this case, I consider that several of the factors identified in Bence as potentially lessening the seriousness of any contempt are in play here and identified in the Council’s submissions. For example, in my view the Council has provided later compliance, an apology and an explanation for the default. I consider that there was a significant delay in a complete response being provided, but I note that during that time there were at least three letters from the Council providing a partial response and several batches of information were in fact disclosed, which lessens the seriousness of the contempt. Whilst accepting that lack of resources within the Council is not an excuse for late response, this is, following Bence, a material factor in this case because the explanation provided for the late response relies heavily on lack of available resource to deal with a complex request. I also note the evidence of Mr Ward that the Council has taken steps to avoid a recurrence.

Paragraphs 98 to 100 of Bence set out the following points:

“98.

Proceedings for contempt of court are intended to uphold the authority of the court and to make certain that its orders are obeyed: JS v Cardiff City Council [2022] EWHC 707 (Admin) at paragraph 55, where Steyn J also cited the observation of Lord Donaldson in M v Home Office [1992] QB 270 at 305-306, “Any contempt of court is a matter of the utmost seriousness”. Later in her judgment, Steyn J said, “Any breach by anyone of a court order is always a matter of the utmost gravity. The matter is all the more grave when the breach is committed by a public authority” (paragraph 90).

99.

Proceedings for contempt are intended to uphold the authority of the court and to make certain that its orders are obeyed. As Farbey J (then Chamber President) observed in Harron v Information Commissioner [2023] UKUT 22 (AAC):

“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.”

100.

I agree with Mr Jackson’s submission that, additionally, there is a specific strong public interest in public authorities complying with the provisions of FOIA and the EIR, even where it may seem burdensome or inconvenient.”

There is, and remains, a strong public interest not only in the authority of the Tribunal being upheld but also in ensuring compliance with the provisions of information rights legislation. However, in the circumstances of this case where it appears that a response has now been provided, I agree with the Council that this public interest is not, by itself, determinative.

Taking all these factors into account, and considering all the circumstances of this case, I am not persuaded that I should exercise the Tribunal’s discretion to certify the Council’s conduct in producing a late response to the Upper Tribunal. I therefore refuse the application.