FOIA Appeals and Enforcement: Who has the Power?

July 2nd, 2020

When the First-tier Tribunal decides an information rights appeal and finds in favour of the requestor, who has the responsibility for enforcing any non-compliance with that judgment? Is it the FTT, or is the Information Commissioner? In an interesting judgment of Judge Jacobs in Moss v Information Commissioner & Royal Borough of Kingston upon Thames [2020] UKUT 174 (AAC), the Upper Tribunal has held that it is the FTT.

In Mr Moss’s case, the FTT had upheld the public authority’s application of section 12 FOIA, but allowed his appeal in part having found it to have breached the duty to advise and assist in section 16 FOIA. Mr Moss considers that the public authority has failed to provide advice and assistance, despite the FTT’s decision. He applied to the FTT for the public authority to be committed for contempt, whereupon a dispute arose between the ICO and the FTT as to who had any punishment/enforcement role where an appeal against a decision notice has been allowed. Mr Moss, entirely understandably, took the position before the Upper Tribunal that he did not much care which of the bodies had the role, so long as one of them did and that they exercised it. Happily, this issue has taken some time in the life of FOIA to arise.

Judge Jacobs concluded that the FTT had the power to enforce, by means of certifying a party’s conduct as contempt to the High Court, under section 61 FOIA read with the adopted paragraph 8 of Schedule 6 to the Data Protection Act 1998. (For cases under the Data Protection Act 2018, much the same provisions apply, save that the certification goes to the Upper Tribunal instead of the High Court, by paragraph 60 of Schedule 19 having substituted a new section 61 FOIA.) The fact that an FTT does not usually make orders could not alter the substance of the usual approach to contempt powers. If section 61 FOIA did not have this effect, it would be meaningless.

The Upper Tribunal also accepted the ICO’s submission that it did not have the power. The ICO agreed that it had the power (and was the only body with the power) to enforce a DN which has not been appealed: sections 52 and 54 FOIA. But the exercise of those powers is not subject to the jurisdiction of the FTT. Moreover, if the ICO had the role of enforcing FTT decisions (and, for example, decided not to do so) that would undermine the legal principle emphasised in R (Evans) v HM Attorney General [2015] AC 1787 that an executive body cannot override a judicial one.

As a result, the FTT had been right to refuse the application to commit the authority for contempt because it had no such power, but wrong to strike out the application to certify the authority for contempt because it did have that power.

In relation to who has the power to enforce a DN against which an appeal had been dismissed, Judge Jacobs was reluctant to commit a concluded view as the point did not arise. This was left for another day, and what a day that will be…

Rupert Paines appeared for the ICO.

Christopher Knight

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