Rotherham Metropolitan Borough Council v Liam Harron & Anor

Under section 61 of the Freedom of Information Act 2000, certification for contempt requires a clear and properly particularised allegation of a serious breach of a clear and unambiguous tribunal requirement. The alleged contemnor must receive a high standard of procedural fairness, including a fair opportunity to answer the specific allegation.

Information cannot found a breach of a substituted decision notice unless it clearly falls within the scope of the underlying request and the notice. Certification must also be proportionate and serve the administration of justice. The Upper Tribunal may inquire into contempt only after a valid certification by the First-tier Tribunal.

The First-tier Tribunal had allowed Mr Harron’s appeal concerning a freedom of information request and substituted a decision notice requiring Rotherham Metropolitan Borough Council to disclose information arising from a specified internal-review request.

The First-tier Tribunal later certified the council for contempt because it had not supplied a Q&A document. The council appealed. Mr Harron also sought an Upper Tribunal inquiry following the certification.

The central issues were whether the Q&A document fell within the request and substituted notice, whether the certification process was fair, and whether certification was proportionate.

1. The council’s appeal was allowed. The First-tier Tribunal’s certification decision was set aside and remade as a refusal to certify an offence. The Upper Tribunal had no jurisdiction to conduct an inquiry because there was no certification.

2. The First-tier Tribunal made a material error of law by treating the council as contemptuous on the basis of an allegation that had not been clearly put to it. Contempt proceedings require a high standard of procedural fairness. The First-tier Tribunal had to ensure that the alleged breach of a requirement to disclose the Q&A document was particularised and answered, even though Mr Harron was a litigant in person.

3. The Q&A document did not fall within the substituted decision notice. Request 3 was limited to written information arising from the internal-review request of 29 June 2016 and its reinstatement on 26 October 2016. The document was produced while that review request had been withdrawn and its questions concerned wider issues about the booklet and prior requests. No reasonable tribunal could conclude, to the criminal standard, that it clearly and unambiguously arose from the internal review.

4. Certification was in any event disproportionate. Mr Harron had received the document before the tribunal proceedings, and the alleged omission concerned one document among many supplied. Certification would therefore concern, at most, a purely technical contempt and would not serve the administration of justice.

5. Section 61 of the Freedom of Information Act 2000 preserves a power to punish non-compliance with a substituted decision notice, rather than a power to compel compliance. However, the Upper Tribunal’s inquiry power under section 61(5) arises only where the First-tier Tribunal has certified an offence under section 61(4).

• Upper Tribunal (Administrative Appeals Chamber): Allowed the council’s appeal from the certification decision, set it aside, and remade it by refusing certification. It declined to inquire into contempt because no certification remained.
• First-tier Tribunal (General Regulatory Chamber): In EA/2021/0009 (previously EA/2018/0090), certified the council’s failure to provide the Q&A document as an offence for the Upper Tribunal.
• First-tier Tribunal (General Regulatory Chamber): On 2 May 2019, allowed Mr Harron’s appeal against the Information Commissioner’s decision notice and substituted a notice requiring disclosure of information within the scope of his request.