Jonathan Elworthy v Egerton Parish Council

Background

1. The Applicant, Mr Elworthy, appealed a decision of the Information Commissioner (the “IC”) dated 21 August 2024, reference IC-303456-D2W1 (the “Decision Notice”) which upheld the decision of Egerton Parish Council (“the Council”) to refuse Mr Elworthy’s request for information under section 14(1) of the Freedom of Information Act 2000 (“FOIA”). The request concerned written advice given by the Council’s professional advisers (including legal advisers) about a planning appeal and judicial review proceedings concerning the North Field development. The Tribunal dealt with the appeal under reference FT/EA/2024/0362.

2. By a decision dated 2 May 2025 (the “Decision”), which was amended under Rule 40 and reissued on 17 June 2025, the Tribunal allowed the appeal. In the Decision, the Tribunal substituted the following decision notice: “1. The Tribunal finds that Egerton Parish Council was not entitled to rely on section 14(1) of the Freedom of Information Act 2000 .

2. The Egerton Parish Council is required to take the following steps within 35 calendar days of the date that this decision is sent to the parties by the Tribunal.

3. The Egerton Parish Council is required to issue a fresh response to the Request, confirming whether it holds the information and must either: i. Supply the information sought; or ii. Serve a refusal notice under section 17 of the Freedom of Information Act 2000 including the grounds relied on other than section 14(1) .

4. Any failure to abide by the terms of the Tribunal’s substituted decision notice may amount to contempt which may, on application, be certified to the Upper Tribunal.”

3. Following the Decision, the Council wrote to Mr Elworthy on 5 June 2025 (Appendix B, bundle page 65), which was sent to him by email on 6 June 2025. In response to the Decision, the Council stated the following: “1) The written legal advice that Egerton Parish Council (EPC) received from its barrister in relation to the original application for a Judicial Review is attached – Document 1. This advice, which is the conclusion of EPC discussions with its legal advisors, sets out the grounds on which EPC could argue for permission for a Judicial Review. This is the only written advice EPC received from its barrister. 2) Advice given to EPC in relation to the subsequent Court hearing appealing against the Judicial Review’s refusal is set out in the Grounds document – Document 3. You will see from this that the barrister did not believe there was merit in pursuing the argument in Ground 2 and only requested to renew the argument in Ground 1. This is the advice that EPC received verbally. The names that have been redacted are for Data Protection purposes and are not Councillors or paid employees of EPC. EPC’s position is that it has met in full the Tribunal direction dated 7 May 2025 and released the information as requested.”

4. The Council attached to its response two documents, which appear in the bundle at Appendices C and D, at pages 67 and 75 respectively. The Applications

5. Mr Elworthy made two applications dated 22 September 2025 (together the “Applications”) by way of form GRC4 for certification of the Council to the Upper Tribunal for contempt. Although these Applications were made out of time, I extended the time for submission by case management directions dated 26 September 2025. The reasons for these Applications were given as follows: a. The Council has only partially supplied the documentation requested. Mr Elsworthy’s application details two particular documents which he says have not been disclosed: i. “the advice referenced in the May 2023 Minutes para 9: “The previous Council had agreed that advice from planning consultants and legal advisers was sufficiently robust to challenge the Planning Inspector’s decision – despite the Neighbourhood Plan – to allow the appeal for development of North Field ”” ii. “the advice referred to in the June 23 Minutes para 8: “ A barrister advised that focus of an application for JR must be based on points of law, not purely on a planning inspector’s opinion and EPC had an arguable case”” b. The Council has not communicated the Decision properly. Mr Elsworthy says “ I believe Egerton Parish Council have misrepresented and failed to objectively report the Judge’s decision at the Parish Council meeting on 8th July and also as reported in the minutes approved and published onto the Parish Council website on 8th August 2025 .” Mr Elsworthy expanded on this in Appendix L to his application, which, in summary made the following points: i. The Council failed objectively to report on the decision by ii. Not publishing the full Decision on the Council’s website; iii. Using the meeting of 8 July to justify the Council’s decision without reporting the Decision in detail iv. Refusing to allow him the opportunity to respond at the Parish Council meeting. v. Publishing the minutes of the July meeting without the Tribunal’s Decision. vi. A number of aspects of the Decision were not made clear either at the meeting or in the minutes. c. He stated “ I also believe the Minutes are deliberately misleading by conflating the legitimate premise that people in public office should be careful of engaging in social media posts, with the idea that the Clerk was under intense provocation through social media posts, with my legitimate contact by email with the Clerk to perpetuate the Parish Council’s narrative that the Clerk is continuing to be harassed through social media and email correspondence .” d. He concluded “ Despite the Judge’s decision on my behaviour not being vexatious, the Council have ignored my request for an explanation as to why I should not email the Clerk and ignored my suggestion for mediation between myself and the Clerk to help resolve her concerns. The Council have not retracted their request for me not to email or copy in correspondence to the Clerk and have used this against me to make further applications of grievous behaviour. I am bringing this to the Tribunals attention as I believe that despite the Judge’s decision being clear on the legitimate nature of my request and finding no evidence of vexatious behaviour the Council have not provided the information sought, continue to deny me legitimate contact with the Clerk and continue to perpetuate the same narrative that I am vexatious. It is as though the Tribunal never happened, and the Judge’s decision was irrelevant .” The Council’s response to the Applications

6. The Council provided representations by a letter sent by email on 22 October 2025 (bundle page 27). In response to the allegation that the Council has only partially supplied the documentation requested and not the two documents highlighted by Mr Elworthy, the Council responded as follows: a. “The only written advice EPC received from planning consultants and legal advisers is in the documents provided by EPC’s barrister. These were provided to Mr Elworthy on 6 June 2025 within the 35 days specified in the Tribunal Directions. Receipt was acknowledged by Mr Elworthy. There was no further written advice given to EPC beyond that which has already been supplied to Mr Elworthy. EPC had verbal discussions in the course of meetings with its legal adviser and barrister, but this was not written or recorded. It is impossible to provide written information that does not exist….Egerton Parish Council would like to make further comment that the summary of the advice received from its barrister formed the bsis of the arguments that were presented to the Court and this is publicly available. Mr Elworthy was provided with links to where he could obtain this information on more than one occasion. Egerton Parish Council therefore believes that it has complied with the Tribunal Directions.”

7. In response to the allegation that the Council has not communicated the Decision properly, the Council stated: “This second application from Mr Jonathan Elworthy is not the subject of any Directions that were issued on 7 May 2025 by the First-tier Tribunal. Notwithstanding anything above, EPC wishes to inform the Tribunal i. The Tribunal did not direct EPC to publish the full decision. However, the decision of the Tribunal was reported in its Parish Council meeting of 8 July 2025 and this is recorded in the minutes of that meeting. Mr Elworthy was present at that meeting. ii. As a result of social media posts by Mr Elworthy after the Tribunal’s decision, EPC felt it necessary and in the interests of openness, balance and transparency to explain to parishioners why it had taken the action it had. The Chair made a statement in that parish council meeting to explain Egerton Parish Council’s position. iii. Mr Elworthy was given ample time to speak in the public session at the parish council on 8 July 2025. He did so at length on the Tribunal’s decision and covered several other topics. He was not limited in the number of questions he could ask, or the time available to him. iv. The Chairman reported verbally in the meeting, quoting the Tribunal case reference FT/EA/2024/0362, and stating that “the First Tier Tribunal upheld Mr Elworthy’s appeal and has determined that his FOI request in this specific instance was not vexatious.” This was recorded in the meeting minutes” The Applicant’s reply to the Council’s response

8. Mr Elworthy filed a reply dated 5 November 2025 (bundle page 30) in which he stated: “I believe Egerton Parish Council have deliberately and wilfully redacted information and omitted to supply information that should be in the public domain related to advice received from their professional advisors and detaieed in the amended Decision Notice…”

9. In support of this, in summary he made the following points in paragraph 1 of the Reply: a. He does not believe that the information supplied is the only advice received in written form. He also does not believe that this would have been the only documentation provided by the professional advisers or that advice was received in undocumented telephone conversations. b. The minutes record that advice was received from both planning consultants and legal advisers. c. The letter of advice has been redacted to such an extent that it is not possible to ascertain if the document is pertinent to the advice received. d. The inference to be drawn from the Council not providing this advice is that the Council either did not seek advice at the appropriate time or gave the professional advisers misinformation or both. e. The Council has not removed the redactions or provided any further advice received from their professional advisers.

10. He went on to state “ I believe EPC has deliberately and wilfully undermined the decision of the Judges and their authority at the Parish Council meeting of 8 July 2025 and in the published minutes of that meeting…”

11. In support of this, in summary he made the following points in paragraph 2 of the Reply: a. While there was mention of the Tribunal Decision at the July meeting and recorded in the July minutes, he does not believe this was reported correctly or in a fair and balanced way. b. He believes that the Council deliberately misrepresented the Decision as saying that this particular request was not vexatious. He says this suggests the Tribunal had not considered the allegations regarding his overall behaviours but only the actual request itself. c. He provides a detailed analysis of what was said at the 8 July 2025 meeting by reference to the transcript, minutes and audio recording (none of which are before the Tribunal). d. The comments of the Chair in refusing to acknowledge that the Council had ample opportunity to present their evidence at a Tribunal implies that “Tribunals are not set up to be fair and equitable. This could undermine public confidence in the Tribunal system”.

12. Finally he states “ I would ask the Tribunal to direct Egerton Parish Council: a. To obtain from RE Planning Consultants, Brachers Solicitors and Cornerstone Barristers copies of all letters, emails and records of telephone conversation on the Planning Appeal on the North Field development and also on the application for Judicial Review of the Inspector’s decision and the subsequent Court hearing appealing against the Judicial Review’s refusal. b. That the Judge’s Decision Notice is published in full on the Parish Council website in a position and format that is easily accessible to the public. c. For a public apology to me and to the public for all the untruths and false narratives put forward to the ICO, to the Tribunal and to the public by Egerton Parish Council about me, about people they have purported to be involved in vexatious behaviour with me and about the Tribunal process itself. d. For all the allegations made against myself and others purported to be involved with me to be removed from the public record. e. For the Council to put in place a protocol to ensure the veracity and allow correct of any past and future statements made by the Council and published in the public domain.” The Legal Framework for a contempt application

13. The powers of the Tribunal are to be found in sections 61(3) and (4) of FOIA 2000 – “(3) Subsection (4) applies where— (a) a person does something, or fails to do something, in relation to proceedings before the First-tier Tribunal on an appeal under those provisions, and (b) if those proceedings were proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court. (4) The First-tier Tribunal may certify the offence to the Upper Tribunal.”

14. The 2009 Rules provide details of the procedure to be followed. The procedures were not contentious in this application.

15. The power of contempt is to be considered amongst the other provisions of FOIA 2000 namely – a. The power of the Information Commissioner under s50 to make a decision upon application; b. The power of the Information Commissioner under s52 and 54 to enforce its own decision; and c. The creation of a criminal offence under s77 of altering etc information with the intent to prevent disclosure.

16. The delineation of powers and responsibilities are a clear reflection of the will of Parliament.

17. The power to certify an act or omission as a contempt has two distinct phases. Firstly, the Tribunal will consider whether the Respondent has committed an act or omission that would amount to a contempt and secondly, whether the First Tier Tribunal should exercise its discretion to certify the contempt to the Upper Tribunal.

18. In Rotherham Metropolitan Borough Council v Harron & The Information Commissioner's Office and Harron v Rotherham Metropolitan Borough Council & The Information Commissioner's Office : [2023] UKUT 22 (AAC) Farbey J said - At para 53 “… There is no power to compel a public authority to comply with a substituted decision notice. In the context of para 8 of Schedule 6 to the 1998 Act, the UT has held that there is a power to punish for not doing so, although that power may operate as an incentive to comply ( Information Commissioner v Moss and Royal Borough of Kingston Upon Thames [2020] UKUT 174 (AAC) , para 1). I see no reason to take a different view.” And at para 54 -” The principle that proceedings for contempt of court are intended to uphold the authority of the court and to make certain that its orders are obeyed is longstanding (for a recent restatement, see JS (by her litigation friend KS) v Cardiff City Council [2022] EWHC 707 (Admin) , para 55). A person who breaches a court order, whether interim or final, in civil proceedings may be found to have committed a civil contempt. Given the nature and importance of the rights which Parliament has entrusted twenty-first century Tribunals to determine, the public interest which the law of contempt seeks to uphold – adherence to orders made by judges – is as important to the administration of justice in Tribunals as it is in the courts. There is no sound reason of principle or policy to consider that any different approach to the law of contempt should apply in Tribunals whose decisions fall equally to be respected and complied with.”

19. In that case, Mrs Justice Farbey also restated the principles elucidated by the Court of Appeal in Navigator Equities Limited v Deripaska [2021]EWCA Civ 1799, para 82 as they apply to contempt – “The following relevant general propositions of law in relation to civil contempt are well-established: i. The bringing of a committal application is an appropriate and legitimate means, not only of seeking enforcement of an order or undertaking, but also (or alternatively) of drawing to the court’s attention a serious (rather than purely technical) contempt. Thus a committal application can properly be brought in respect of past (and irremediable) breaches; ii. A committal application must be proportionate (by reference to the gravity of the conduct alleged) and brought for legitimate ends. It must not be pursued for improper collateral purpose; iii. Breach of an undertaking given to the court will be a contempt: an undertaking to the court represents a solemn commitment to the court and may be enforced by an order for committal. Breach of a court undertaking is always serious, because it undermines the administration of justice; iv. The meaning and effect of an undertaking are to be construed strictly, as with an injunction. It is appropriate to have regard to the background available to both parties at the time of the undertaking when construing its terms. There is a need to pay regard to the mischief sought to be prevented by the order or undertaking; v. It is generally no defence that the order disobeyed (or the undertaking breached) should not have been made or accepted; vi. Orders and undertakings must be complied with even if compliance is burdensome, inconvenient and expensive. If there is any obstacle to compliance, the proper course is to apply to have the order or undertaking set aside or varied; vii. In order to establish contempt, it need not be demonstrated that the contemnor intended to breach an order or undertaking and/or believed that the conduct in question constituted a breach. Rather it must be shown that the contemnor deliberately intended to commit the act or omission in question. Motive is irrelevant; viii. Contempt proceedings are not intended as a means of securing civil compensation; ix. For a breach of order or undertaking to be established, it must be shown that the terms of the order or undertaking are clear and unambiguous; that the Respondent had proper notice; and that the breach is clear (by reference to the terms of the order or undertaking).”

20. In the case of Information Commissioner v Moss [2020] UKUT 174 (AAC) , the Upper Tribunal concluded that, noting the enforcement powers that already existed under Rules 7 and 8 of the 2009 Rules, that not much else is left for section 61 of FOIA to deal with, apart from non-compliance with a substantive decision of the First-tier Tribunal. Discussion and conclusions

21. I note that all parties have consented to the Applications being dealt with without a hearing and I consider it is fair and just to proceed on this basis.

22. The first point I have to consider is whether the Council has committed an act or omission which would amount to a contempt. If I am satisfied that they have, then I need to go on to consider whether the Tribunal should exercise its discretion to certify the contempt to the Upper Tribunal.

23. Dealing first with the allegation of non-compliance with the Decision, I find as a matter of fact that the Council wrote to Mr Elworthy on 5 June 2025 which letter was sent to him by email on 6 June 2025 (I refer to this below as the “Letter”). The Letter stated that it was written with reference to Mr Elworthy’s appeal and to the Decision which directed the Council to issue a fresh response to Mr Elworthy’s information request. It quoted the wording of the information request which stated: “ Freedom of information request for all written advice given by the Parish Council’s professional advisers (planning consultants, solicitors and barristers) on the Planning Appeal on the North Field development and also on the application for a Judicial Review of the Inspectors decision and the subsequent court hearing appealing against the Judicial Review’s refusal ”. I find that the Council intended that this Letter should stand as its response to the substituted Decision Notice ordered by the Tribunal.

24. I find that with this Letter, the Council supplied two documents to Mr Elworthy, which were the written legal advice from its barrister in relation to the original judicial review application and advice given to the Council in relation to the court hearing concerning appealing the judicial review’s refusal. I find that both these documents fall within the ambit of Mr Elworthy’s request.

25. The substituted decision notice set out in the Decision required the Council to provide a fresh response within 35 days of the Decision being sent to the parties. I find that the letter was sent within 35 days of promulgation of the Decision in its original form.

26. The substituted Decision Notice also required that the fresh response should provide documentation sought or provides a response under section 17 . Section 17 (1) of FOIA provides that a public authority which, in relation to any request for information, is relying on a claim that is exempt information must, within the time for complying, give the applicant a notice which states that fact, specifies the exemption in question and states (if that would not otherwise be apparent) why the exemption applies.

27. Although the Letter does not state explicitly the section numbers of FOIA in relation to any further exemptions relied upon, it appears to me that the letter gave the following reasons why no further documents were being disclosed: a. The Council has disclosed the only written advice it has received from its barrister. Accordingly, no further such advice is held. b. Similarly, the Council has disclosed a court document which reflects in writing the advice which it received from professional advisers verbally. The implication, though this is not explicit on the face of the Letter, is that nothing further is held, as before. c. Where names have been redacted, this is to protect the personal data of the persons concerned.

28. I find that it is sufficiently clear on the face of the Letter that the reasons why no further documentation is being supplied are that a. No further documentation is held. In effect, it is clear that the Council is relying on section 1 of FOIA. b. Redactions of names are to protect personal data of individuals. In effect it is clear that the Council is relying on section 40(2).

29. There does not appear to me to be any deliberate or intentional non-compliance with the Decision.

30. I therefore conclude that the Council has provided a response to Mr Elworthy within 35 days and has complied the substituted Decision Notice set out in the Decision. Accordingly, in relation to the allegation of non-compliance I find that there is no act or omission which would amount to a contempt. The fact that Mr Elworthy is not satisfied with the information he has received is a different question; as stated above the power to certify a party as being in contempt needs to be viewed in the context of the Information Commissioner’s power to make a decision under section 50. I consider that the fresh response provided by the Council is a response in respect of which the process of complaining to the Information Commissioner with a view to obtaining a decision notice may be available, because the fresh response can be reviewed and challenged in the same way as the original response. However, Mr Elworthy has not sought to pursue this course, and the availability of such a process means that, in all the circumstances, certification for contempt is not the appropriate mechanism to challenge the content of the material disclosed or reliance on exemptions in this case.

31. I therefore dismiss the Applications insofar as they relate to alleged non-compliance with the Decision.

32. I deal more briefly with the allegation that the Council did not communicate the Decision properly. There is no direction in the Decision or any other direction made by the Tribunal in relation to this. The Tribunal promulgates decisions to parties and generally, as in this case, publishes its decisions on the National Archive website. But how these decisions are further disseminated or discussed by the parties is entirely a matter for them and not something with which the Tribunal is in any way concerned, or which it has jurisdiction to consider. Taking into account the overriding objective, it would not be fair, just or proportionate for the Tribunal to police how parties tell people about its decisions. Accordingly, I see no merit in this part of the Applications and dismiss it.

33. Finally, I note from the Reply that Mr Elworthy is seeking a number of directions from the Tribunal. Even if I had not decided to dismiss the Applications, I would have refused to make these directions because the Tribunal does not have power to grant the remedies sought. If Mr Elworthy wishes to obtain further and more extensive information, it is open to him to consider further information requests in future.