“(2) Accordingly the public authority shall, no later than 28 days after the date of promulgation of this substituted Decision Notice, deliver a fresh response to the Appellant satisfying the requirements of FOIA s1(1)(a) and, if relevant information was held on the date of the original response, disclose the same or state any and every legal ground for declining to do so.”
“If it were held, the information in scope of this request would relate to Law Officer advice or a request for such advice, covered by section 35(1)(c) of the FOIA. As such, by virtue of section 35(3) of the FOIA, the AGO is not required to either confirm or deny whether it holds such information in scope. Further and in the alternative, if information were held in scope of this request it would relate to law enforcement, covered by s.31(1)(a) FOIA. As such, by virtue of 31(3) FOIA, the AGO is not required to either confirm or deny whether it holds such information in scope.”
“Despite the tribunal's express finding that the AGO's prior reliance on s.35(3) NCND was unlawful, the fresh response reapplies NCND under s.35(3) to any further/additional information that might be held, citing the Law Officers' Convention and related public interest factors. It also invokes NCND alternatively under s.31(3) FOIA (prejudice to prevention/detection of crime, linked to police operational decisions). This re-application of the same exemption (s.35(3)) that the tribunal quashed — without evidence of materially changed circumstances or a fresh search/disclosure exercise curing the prior defect — fails to satisfy the order's requirement for a genuine "fresh response" fully complying with s.1(1)(a) FOIA (confirmation or denial of holding). The partial disclosure of limited material does not address the core of the request; the NCND position effectively reinstates the unlawful blanket refusal on the substance. Reliance on s.31(3) as a fallback appears contrived to perpetuate non-disclosure. The request concerns police escort arrangements for a high-profile public event/figure (Taylor Swift), aspects of which are often in the public domain. The AGO provides no specific, evidence-based prejudice from mere confirmation/denial of holding further information. This piecemeal approach (disclose minor elements, NCND the rest) frustrates the tribunal's intent for comprehensive satisfaction of s.1(1)(a) and disclosure where possible, without reinstating the struck-down position. The substituted Decision Notice imposed a clear, binding obligation on the AGO as a public authority. The response represents wilful (or at least culpable) disobedience by effectively circumventing the tribunal's ruling through re-application of the quashed exemption and invocation of alternatives without adequate justification. If these proceedings were before a court with contempt powers, such failure to comply with a specific judicial order would constitute contempt (wilful disobedience or interference with justice). Certification is necessary to uphold the authority of the tribunal, ensure compliance with its orders, and protect the effectiveness of the FOIA regime. Public authorities must treat substituted decisions seriously; failure to do so undermines public trust in access to information rights.”
“(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.”
“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).”
“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”