Freedom of information contempt certification in the Upper Tribunal (Bence v Cornwall Council)
Public Law analysis: In Bence v Cornwall Council, the Upper Tribunal (UT) found Cornwall Council in contempt for failing to comply with a Substituted Decision Notice (SDN) issued by the First-tier Tribunal (FTT) under the Freedom of Information Act 2000 (FIA 2000). The Council ultimately admitted it had not responded to the SDN within the prescribed 35-day period, and the UT further held that the Council remained in breach for a protracted period. Bence is the first reported case in which the UT has made a finding of contempt by a public authority in an information law case. The decision provides guidance on the respective roles of the FTT and UT in the contempt certification process. It also provides a helpful and comprehensive summary of the contempt regime as it relates to non-compliance with the FTT’s SDNs. Further, the judgment emphasises the seriousness of non-compliance by a public authority and the elements of civil contempt, in conjunction with Buzzard-Quashie, that sanctions for contempt on this basis may be severe. The case is also instructive in illustrating how a public authority may mitigate failures of compliance to avoid investigation and certification of contempt. Written by Gaelyn Fuhrmann, legal director at Wiggin LLP.