Ms Penny Bence v (1) Cornwall Council (2) The Information Commissioner: [2025] UKUT 420 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Mrs Justice Heather Williams on 17 December 2025.
Read the full decision in .
Judicial Summary
INFORMATION RIGHTS
The First-tier Tribunal transferred this case to the Upper Tribunal pursuant to a contempt certification issued under section 61(4) Freedom of Information Act 2000 (“FOIA”). The certification identified the First Respondent’s contempt “offences” as non-compliance with a Substituted Decision Notice (“SDN”) promulgated on 14 October 2024 and non-compliance with the First-tier Tribunal’s order of 11 February 2025.
The Upper Tribunal inquired into the alleged contempt pursuant to section 61(5) FOIA.
During the hearing before the Upper Tribunal, the First Respondent admitted it had committed a contempt in not complying with the SDN within the prescribed 35 day period and, specifically, not complying with paragraph 2(a) of the SDN until 10 March 2025 and paragraph 2(b) of the SDN until 23 July 2025.
In terms of the allegations that remained in dispute, the Upper Tribunal determines that the First Respondent was in breach of paragraph 2(a) of the SDN until 23 July 2025 and that this amounted to a further contempt. However, it has not been shown that the First Respondent was in breach of the SDN after 23 July 2025 or that it had breached the First-tier Tribunal’s 11 February 2025 order.
The Upper Tribunal decides that the appropriate sanction is the publication of this decision, which details the highly unsatisfactory nature of the First Respondent’s response to the SDN, along with an award of costs in the Applicant’s favour in the agreed sum of £35,000.
The Upper Tribunal also gives guidance as to the respective roles of the First-tier Tribunal and the Upper Tribunal in relation to certifications for contempt under the FOIA provisions and addresses the requisite elements for a finding of civil contempt (breach of an order), procedural safeguards and factors relevant to sanction.