The Upper Tribunal (Lady Poole and Upper Tribunal Judge Wikeley) has published its decision in Cleasby v University of Exeter and The Information Commissioner, in which the Upper Tribunal has fined the University of Exeter £15,000 after a case was certified to it by the First-tier Tribunal. This fine is in relation to the University’s failure to comply with a substituted decision notice issued by the First-tier Tribunal for more than a year after the date on which it ought to have complied with it.

The applicant, Mr Cleasby, had made a request for information to the University of Exeter on 31 October 2022. In response to that request for information, the University of Exeter disclosed some information but withheld other information. The Information Commissioner agreed with the University and Mr Cleasby appealed to the First-tier Tribunal. The University did not participate in the proceedings before the First-tier Tribunal. On 30 January 2024, the First-tier Tribunal issued its decision which contained a substituted decision notice in terms of section 58(1) of the Freedom of Information Act 2000 requiring disclosure of the withheld information within 42 days of the date on which the decision was sent to the University. The University of Exeter was therefore required to make disclosure by 12 March 2024.

The University of Exeter did not comply with the First-tier Tribunal’s substituted decision notice, and an application was made by Mr Cleasby to the First-tier Tribunal for it to certify a case to the Upper Tribunal. As part of that application, the First-tier Tribunal issued two sets of directions giving the University an opportunity to make observations in relation to Mr Cleasby’s application, neither of which were complied with by the University. Eventually, the University of Exeter entered the proceedings, but this was only to make two applications to the First-tier Tribunal to have Mr Cleasby’s application to certify struck out. The first application was made on 5 December 2024 and was dismissed by the First-tier Tribunal on 7 January 2025. The second strike-out application was made on 21 January 2025 which was eventually dismissed by the First-tier Tribunal on 27 March 2025.

After making the second strike-out application, but before it was dismissed by the First-tier Tribunal, the University of Exeter disclosed to Mr Cleasby one further document, which was a minute of a meeting which had taken place in October 2022. There was no admission by the University at this stage that it had failed to comply with the substituted decision notice made by the First-tier Tribunal. The University did not produce the withheld information nor did it provide any witness evidence to be considered y the First-tier Tribunal.

On 27 March 2025, the First-tier Tribunal certified the case to the Upper Tribunal for it to consider the exercise of its powers in relation to contempt of court. On 8 May 2025, more than a year after it should have complied with the substituted decision notice, the University of Exeter wrote to Mr Cleasby producing the withheld information and apologised to him. On 16 May 2025, the University wrote to the Upper Tribunal with copies. Further correspondence took place between the University of Exeter and Mr Cleasby in which the University, among other things, invited Mr Cleasby to withdraw his certification application. Mr Cleasby, concerned by the University’s apparent culture towards information requests, refused to do so. Mr Cleasby is recorded as having described the University’s attitude to the disclosure of information as “cavalier, evasive and entitled.” [5]

The University finally began to engage with the proceedings and provided to the Upper Tribunal a witness statement from its General Director of Legal and Student cases. The University identified four errors it had made, which are as follows and are set out at [6] of the Upper Tribunal’s decision:

1. The University had erroneously believed that because it had not been party to the proceedings before the First-tier Tribunal the decision was not binding upon it and therefore the Information Commissioner required to issue some kind of direction.
2. The University had wrongly considered that disclosure of minutes of meetings listing attendees was sufficient, which it had provided, overlooking the detail of the request for information.
3. The University had believed, mistakenly, that personal data of non-University individuals fell to be redacted.
4. The University wrongly thought, at one point, that it no longer held relevant information.

Before the Upper Tribunal, the University accepted that it was in contempt, a concession that the Upper Tribunal considered to have been well made. [13] Although it had not been party to the proceedings before the First-tier Tribunal, the University had been obliged to comply with the terms of the decision notice (as explained by the Upper Tribunal in Information Commissioner v Moss and the Royal Borough of Kingston on Thames [2020] UKUT 174 (AAC)). The First-tier Tribunal’s decision stated expressly that it was a substituted decision; it was therefore “inexplicable, inexcusable and disrespectful that the University thought a further decision was required from the [Information Commissioner] before it had to disclose the withheld information.” [13] Although based on erroneous beliefs, the failure by the University to comply with the decision of the First-tier Tribunal was the result of deliberate choices made by the University. [13]

In assessing the seriousness of the contempt, the Upper Tribunal was concerned by the University’s behaviour in the proceedings before the First-tier Tribunal. Instead of properly reading the decision of the First-tier Tribunal and taking appropriate legal advice, the University “relied on inadequate internal systems and insufficiently informed staff.” [14] The University proceeded on the basis of assumptions that it was not required to comply with the decision of the First-tier Tribunal which were “inexplicable” [14]. Instead of properly engaging with the proceedings before the First-tier Tribunal, the “University sought on two separate occasions to strike out the certification proceedings, wrongly maintaining it had produced all information required of it.” [14]

The Upper Tribunal accepted that the University was not motivated by an animus against the First-ter Tribunal nor was its conduct deliberately designed to flout the order of the First-tier Tribunal. However, its behaviour was “characterised by high level incompetence, inexcusable mistakes, and a failure to approach the order of the [First-tier Tribunal] with the seriousness and respect that it merited.” [15]

The Upper Tribunal considered that having regard to the whole circumstances that this was a case in which the imposition of a sanction for the University’s contempt was merited. [15]

Beyond agreeing that imprisonment was not one of the options open to the Upper Tribunal, there was a divergence between the parties as to the appropriate sanctions in this case. The University argued that publication of the judgment marking the contempt was sufficient whereas Mr Cleasby suggested a financial penalty along with a range of other orders including specific directions to the University to provide copies of the Upper Tribunal’s decision to various people, and disciplinary action against members of staff at the University. The Commissioner agreed that a sanction was appropriate but was neutral as to the appropriate level. The Upper Tribunal sets out various aggravating and mitigating factors at [18]-[19] of its decision.

The Upper Tribunal rejected the University’s contention that publication of the formal finding of contempt was sufficient. [20] In relation to the fact that the University was a public authority, the Upper Tribunal stated, at [20]:

“The information regime under the 2000 Act inevitably involves public authorities. Refusing as a matter of course to apply a financial sanction in contempt cases in the context of the 2000 Act would effectively neuter the tribunals’ enforcement powers for contempt, in a way not mandated by the 2000 or 2007 Acts. Accordingly, while the fact that a body in contempt of court is a public authority may be a relevant factor and indicate caution before imposing financial sanctions, it is not an absolute bar. Each case will turn on its own facts.”

In this case Mr Cleasby had represented himself and made no request for an order for costs, an award of costs was not suitable in this case. Having regard to the whole circumstances of the case the Upper Tribunal considered that the appropriate level of fine in this case was £15,000. The Upper Tribunal noted that but for the admission of contempt by the University the fine would have been considerably higher. [21]

Comment

Decisions from the Upper Tribunal finding that a public authority is in contempt by reason of a failure to comply with a decision of the First-tier Tribunal are rare. This latest decision, by the current President of the Administrative Appeals Chamber of the Upper Tribunal, Lady Poole, and Upper Tribunal Judge Wikeley, does not make for pleasant reading, but it is one that anyone with responsibility for implementing decisions of the First-tier Tribunal in relation requests under the Freedom of Information Act 2000 (or Environmental Information Regulations 2004) should take the time to read. It appears to be clear from the decisions that do exist that the Upper Tribunal will take a robust approach when a case is certified to it by the First-tier Tribunal. It is not uncommon for public authorities to decide not to become a party to an appeal brought by a requester under section 57 of the Freedom of Information Act 2000; however, this case should be seen as a lesson that a public authority which so choses should ensure that it has in place robust procedures to consider and act upon decisions of the First-tier Tribunal made in cases to which they did not participate. Section 58 of the Freedom of Information Act 2000 confers a power on the First-tier Tribunal to issue a substituted decision notice for the one issued by the Commissioner where it decides to allow an appeal in whole or in part.

A finding of contempt clearly carries with it reputational risk, but the penalties open to the Upper Tribunal in such cases are not restricted to simply publishing its decision. In this case the Upper Tribunal has made it clear that, notwithstanding that these cases will involve public authorities, fines for proven or admitted contempt are not off the table in appropriate cases.

_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}