Late compliance, apology and resource pressures save council from contempt certification over EIR decision notice

The First-tier Tribunal (General Regulatory Chamber) has refused to certify Guildford Borough Council to the Upper Tribunal for contempt over its admitted failure to comply with a substituted decision notice within the required 35 days, finding that the council's late and piecemeal response was capable of constituting contempt but that later compliance, an apology and an explanation grounded in resource constraints meant certification would be disproportionate.

Judge Harris, deciding the application on the papers in a decision given on 2 July 2026, also held - applying the Upper Tribunal's recent decision in Harron v Rotherham MBC - that complaints about the completeness or adequacy of the council's eventual response were a matter for the Information Commissioner under section 50 of the Freedom of Information Act 2000, not conduct the tribunal could certify for contempt.

The application arose from an Environmental Information Regulations 2004 appeal in which the tribunal had found in August 2025 that Guildford Borough Council was likely holding relevant information beyond what it had disclosed, allowed the appeal against the Commissioner's decision notice, and issued a substituted decision notice.

The SDN required the council, within 35 days, to revisit the enquiries required by an ICO letter of September 2024, to search for information created by staff who had left the council, to search its Microsoft Teams system and disclose its retention period for Teams messages, and to send the applicant, Stephen Parker, an indexed and paginated response setting out the outcomes, the search terms used, and the basis for any reliance on exceptions.

The compliance deadline expired on 24 September 2025. Parker applied to the tribunal in October 2025 under section 61 of FOIA, stating that the council had not complied, continued to send piecemeal updates, refused to confirm compliance, and had admitted continuing to withhold emails from February 2023.

The council's Head of Information Governance accepted in a witness statement that the council had not complied by the deadline, explaining that a heavy workload following his return from leave, a concurrent internal audit, a hearing bundle of more than 2,700 pages, and five new information requests submitted by Parker during September 2025 had contributed to the delay. The council sent partial responses on 30 September and 12 November 2025 and what it described as a fully compliant, indexed and paginated response on 19 December 2025, after the certification proceedings had begun.

Under section 61 of FOIA, which applies equally to EIR cases, the tribunal may certify to the Upper Tribunal an act or omission in relation to proceedings that would constitute contempt of court if the proceedings were before a court with power to commit. Following Information Commissioner v Moss and the Upper Tribunal's decision in Bence v Cornwall Council, the First-tier Tribunal's role is first to decide whether the conduct is capable of constituting contempt, and then whether to exercise its discretion to certify, having regard to the seriousness of the conduct, proportionality, and factors bearing on sanction.

Judge Harris found the first stage satisfied. The council had failed to provide a response, complete or otherwise, within the period specified, and the failure was knowing. Guildford's head of Information Governance was aware he would not meet the deadline, and his statement to Parker that matters would be addressed in due course could be construed as containing elements of an intention not to respond immediately, even if there was no strong evidence of wilful defiance. The absence of a penal notice on the SDN did not prevent the conduct being capable of amounting to contempt, though it was relevant to discretion.

The judge declined to treat the alleged inadequacy of the December 2025 response as certifiable conduct. Following Harron, a substituted decision notice is still a decision notice, and the response to it remains a response to a request that the Commissioner has primary responsibility for assessing under section 50. Where an applicant is dissatisfied with the response received, as opposed to having received no response at all, the appropriate step is a fresh complaint to the ICO rather than an application for certification.

On discretion, the judge accepted that there is a strong public interest in upholding the authority of the tribunal and in public authorities complying with information rights legislation, and that the delay in providing a complete response was significant. Against that, the council had ultimately complied, apologised unreservedly, provided partial responses and several batches of disclosure during the period of default, explained the failure by reference to a lack of available resource to deal with a complex request, and given evidence of steps taken to avoid a recurrence. With Parker also pursuing further information requests and judicial review proceedings, it was not clear what a contempt sanction would add, and certification would be disproportionate. The application was refused.

Derek Bedlow

This article first appeared on Local Government Lawyer's new site for public sector information governance professionals, www.info-gov.uk.