Verging on contempt

Where the Information Commissioner serves a decision notice on a public authority, under section 50(3)(b) of the Freedom of Information Act 2000 (FOIA), it is a legal notice and a failure to comply may be treated by the High Court (or in Scotland, the Court of Session) as if the authority had committed a contempt of court. It is, therefore (and to state the obvious) a serious matter not to comply. The process involves the Commissioner “certifying” to the court that there has been a failure to comply.

Yet, a recent FOIA disclosure by the Information Commissioner’s Office (ICO) reveals that it currently has two such cases where it has referred non-compliance by one particular public authority to its own solicitors to initiate (or at least consider) certification proceedings. The rather remarkable thing is that the public authority in question is the government department with overall responsibility for FOIA policy – namely, the Cabinet Office.

The disclosure reveals no more in the way of detail – we do not know what the cases relate to, or what the current progress is (other than court proceedings have not yet commenced). However, it is very rare for a case actually to proceed to certification (in fact, I can only recall one case relating to a s50(3)(b) decision notice, and that was instead certified to the High Court by the First-tier Tribunal under section 61 of FOIA (as it applied then)).

It is worth pointing out that it doesn’t necessarily follow that, if there were a finding of contempt, sanctions would be imposed. Although a committal application or fines are, in principle, available, the Court could merely make a public finding that the Cabinet Office had breached the obligation to respond to the decision notice, but impose no further punishment.

Over the years the Cabinet Office has been subject to much criticism for its approach to FOIA – some of it, quite frankly, fully justified. However, there have been encouraging signs of improvements more recently, with its response to the “Clearing House” review, and its setting up of an Information Rights User Group (of which I am a member), although the latter has not fully kicked off yet, as far as I can understand.

However, it is a terrible look for the primus inter pares of government departments, and the one which holds the brief for FOIA policy, to be faced with potential contempt proceedings for failure to do what the law, and the regulator, requires it to do. Although the original FOIA request to the ICO was not mine, I’ll be interested to see if any updates are given.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.