When is a Public Authority's Delay in Information Disclosure Not a Contempt of Court?

NCN: [2026] UKFTT 00991 (GRC) Case Reference: FT/EJ/2025/0012 First-tier Tribunal (General Regulatory Chamber) Information Rights Decided without a hearing Decision given on: 02 July 2026 Before JUDGE HARRIS Between [APPELLANT] Applicant and GUILDFORD BOROUGH COUNCIL Respondent Decision: The Applicant’s application to certify an offence to the Upper Tribunal is refused. REASONS Background to the application 1. 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.

2. 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.

3. 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.

4. 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 "[NAME]" 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.” 5. The Decision was sent to the parties on 20 August 2025, so the period for complying with the SDN expired on 24 September 2025.

6. 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 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.” 7. 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.

8. 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. Applicable law 9. 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”).

10. 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.” 11. 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.

12. 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.

13. 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.

14. 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 ).” 15. 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.

16. 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 17. The Applicant, [APPELLANT], submitted a witness statement dated 12 January 2026. This set out the following chronology: a. After the compliance deadline passed, he repeatedly asked the Council whether it considered itself compliant. The Council replied on 16 October 2025 only that matters “would be addressed in due course”. b. On 31 October 2025, the Council stated that it would complete outstanding actions by 14 November 2025. It sent a partial response on 12 November 2025. c. On 29 November 2025, [APPELLANT] again asked for confirmation of compliance, which the Council still refused to confirm. d. On 19 December 2025, the Council sent a final response, which the Applicant contends does not constitute full compliance. 18. [APPELLANT]’s witness statement identified the following ways in which he said the Council’s response to the SDN amounted to non-compliance: a. The Council did not comply with limb (a) of the SDN because: i. The response dated 19 December 2025 did not address each question set out in the IC’s letter dated 9 September 2024 individually; ii. There was no explanation for earlier statements that information was not held iii. There was no explanation for newly-identified material. iv. It is implausible that the searches yielded only a further five new messages. v. The Council has not provided a list of officers whose teams accounts were searched, search terms, screen shots or result logs. b. The Council did not comply with limb (b) of the SDN because: i. The Council only searched one departing officer; there is no evidence that other officers’ leaver accounts were searched. ii. The Council previously made a false statement that information in relation to this departing officer could not be retrieved. iii. It provided no destruction logs, retention evidence or explanation of how it concluded no information was destroyed. c. The Council did not comply with limb (c) of the SDN because: i. It only disclosed a small number of Teams messages on 30 September 2025 and stated that it was awaiting confirmation of whether further material existed, which indicated no completed or systematic search had been undertaken. It is not plausible that a compliant search would have yielded only a handful of isolated messages. ii. No additional Teams material was provided in the response dated 12 November 2025. iii. It has not provided a transparent and auditable account of how Teams searches were conducted. For example, it is not clear which officers’ Teams accounts were searched, what keywords or date ranges were used and no Teams retention policy has been provided. d. The Council did not comply with limb (d) of the SDN because: i. The response dated 19 December 2025 contains multiple separate documents and no unified index ii. Searches, custodians and results are not described in a systematic way. e. The Council did not comply with limb (e) of the SDN because: i. Mr Ward’s statement on 30 September 2025 that “ the Council continues to withhold emails from February 2023…confirmed with the ICO ” is false, because the IC never confirmed withholding beyond personal data redactions and no evidence of it having done so was provided. ii. The Council has not provided:

1. A withheld material schedule 2. A legal basis for withholding 3. A public interest test. f. The Council has not explained why: i. Information previously stated “not held” later emerged; ii. Teams messages were not found until after certification proceedings began; or iii. Officers were asked to self-search, despite this method being criticised by the Tribunal in the Decision.

19. 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: a. The Council accepts that it did not comply with the SDN by 25 September 2025. b. By email dated 30 September 2025, Mr Ward wrote to the Applicant addressing each of the five sections of the SDN. Accompanying that email was a substantial batch of documentation, including Teams messages, evidence of searches carried out and copies of relevant emails. c. The Council sent further batches of documentation between 30 September 2025 and 12 November 2025. Much of this information had already been sent to the Applicant, but was provided for completeness. Some new information was provided by a member of staff who had previously been on long-term leave. d. The historical searches were thorough. The details of criteria used were set out in screenshots sent to the Applicant on 30 September and detailed in paragraph 8 of Mr Ward’s statement. e. He had thought his response dated 30 September 2025 was sufficient, but issued a further letter to the Applicant on 12 November 2025. f. He was not able to comply with the SDN by 25 September due to a heavy workload after returning from leave and a concurrent internal audit. The hearing bundle was over 2700 pages long which took time to digest. The Applicant also submitted five new separate information requests to the Council during September 2025, which led to a lack of clarity as to what the Applicant was asking for and this contributed to the delay. g. Following receipt of the current application, he obtained support from colleagues in putting together the response dated 19 December 2025 which he believes is fully compliant. h. He apologised to the Applicant and the Tribunal for the delay and for not having replied fully within the timescale provided. Applicant’s submissions 20. The Applicant made submissions on 14 January 2026 in relation to the application. In summary, he made the following points: a. The Council failed to comply within time. b. The Applicant does not accept that the final response sent on 19 December 2025 constitutes full compliance. Even now compliance is partial and deficient. c. The Council remains in material non-compliance with multiple limbs of the SDN and those failures are substantive, not technical. He listed many of the same specific points of non-compliance with the SDN set out in his witness statement and summarised above. d. The explanation advanced by the Council does not constitute a reasonable excuse for not complying. The Council knew of the SDN and its deadline. Compliance steps were delayed and only accelerated after these enforcement proceedings commenced. e. Failure to enforce compliance risks undermining the authority of Tribunal orders, public confidence in information rights enforcement and accountability for use of internal messaging systems such as Microsoft Teams.

21. The Council made submissions on 22 December 2025. In summary, it raised the following points: a. The Council admits that it had proper notice of the SDN, that its terms are unambiguous and that it failed to comply with the SDN within the required 35 days. While there is no penal notice in the SDN, the Council admits that its omission is at least capable of amounting to a contempt. b. The Council argues that this is a case in which the FTT should decline to exercise its discretion to certify to the UT, relying on the following features of the case: i. There were capacity issues which meant that compliance within the relevant timeframe was difficult, particularly bearing in mind the size of the hearing bundle from the Tribunal case. Failure to comply was not wilful but rather because of lack of capacity. ii. The Council attempted to comply (albeit admittedly inadequately) by letters dated 30 September 2025 and 12 November 2025 and a number of emails in between. The Council was not wilfully ignoring the Tribunal’s order. iii. A letter and final complete and indexed paginated bundle in full compliance with the SDN was sent to [APPELLANT] on 19 December 2025. iv. Given the SDN has now been complied with, albeit late, the Council considers the public interest in certification is reduced. v. The Council has apologised unreservedly for its failure and recognises the seriousness of the issues raised in these proceedings. vi. The Council has indicated through witness evidence that it has learned from this matter and will ensure, in future, that it keeps the Tribunal and parties up to speed with difficulties complying and making appropriate extension of time applications where necessary. vii. It would be disproportionate bearing in mind limited UT resources and having regard to the overriding objective, to expend further resources on this matter given the Council has apologised and complied with the SDN. Discussion and conclusions 22. 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.

23. 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.” 24. 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.

25. 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.

26. 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.

27. 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.

28. 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. I have reviewed the responses provided by the Council between 30 September 2025 and 19 December 2025 against the evidence and submissions of [APPELLANT] and I disagree. Although this is not an issue I need to determine in considering the current application, it appears to me that following the response dated 19 December, when all the responses are taken together, the Council had substantially fully complied with the requirements set out in the SDN because it had provided the information sought so far as it was held, provided screenshots evidencing its search parameters and providing explanations where these were required. I did not give weight to the Applicant’s assertions that it was improbable that the searches would have turned up as few documents as it had; the obligation is to disclose information which is held rather that ought to be held. I therefore do not consider that there is a separate ground for certification arising from the Council’s response remaining substantively incomplete.

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

30. 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).” 31. 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: a. 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; b. that applications for contempt should not be disproportionate; c. the other factors that may impact on the sanction that could be imposed; and d. (where applicable) the role of contempt proceedings where orders are breached by public authorities (paragraphs 98 – 101 below); Whether the order was intentionally breached 32. 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. Applications for contempt should not be disproportionate 33. In considering this factor, I gave weight to the Council’s argument that it would be disproportionate to certify given that a full 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 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. The other factors that may impact on the sanction that could be imposed 34. 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.” 35. 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. The role of contempt proceedings where orders are breached by public authorities 36. 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 .” 37. 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 complete response has now been provided, I agree with the Council that this public interest is not, by itself, determinative.

38. 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. Signed: Judge Harris Date: 30 June 2026