Section 53 FOISA: Late Compliance with an Unappealed Decision Notice Can Justify Contempt-Equivalent Disposal

Case: Petition of The Scottish Information Commissioner against the Scottish Ministers (Court of Session, Outer House)
Citation: [2026] CSOH 50
Judge: Lady Poole
Date: 3 June 2026

1. Introduction

This petition—brought by the Scottish Information Commissioner (the “Commissioner”) against the Scottish Ministers—was the first use of the enforcement mechanism in section 53 of the Freedom of Information (Scotland) Act 2002 (“FOISA”). The Commissioner certified to the Court of Session that the Ministers had failed to comply with a FOISA decision notice requiring disclosure and a revised review outcome by a fixed date.

The underlying information request concerned communications and information relating to a published independent report into whether the then First Minister breached the Scottish Ministerial Code, including associated legal advice. The Ministers disclosed some material but withheld other material under FOISA exemptions. After an application under section 47 FOISA, the Commissioner issued Decision Notice 281/2025 (1 December 2025) requiring further disclosure and a revised review outcome by 15 January 2026.

The key issues for the court were:

• whether the court should exercise its discretion under section 53(3) FOISA to inquire into the certified failure;
• if so, whether the Ministers’ non-compliance (in particular, missing the decision notice deadline) justified dealing with them “as if [they] had committed a contempt of court”;
• what sanction (if any) and what expenses order were appropriate.

2. Summary of the Judgment

Lady Poole held that the court should inquire. Following inquiry, the court found:

• the Ministers did not comply timeously with the steps required by the decision notice (compliance occurred on 24 February 2026);
• the decision notice was unchallenged (no appeal under section 56 FOISA) and contained a statutorily-required compliance date (section 49(6)(c));
• the Ministers’ approach—particularly letters stating they would comply “as soon as possible/practicably possible” without seeking a dated extension—amounted to an improper attempt to control the compliance timetable contrary to the statutory scheme;
• the Ministers’ deliberate omission to comply by the fixed date met the standard (beyond reasonable doubt) for contempt-equivalent disposal under section 53(3).

The court exercised its section 53(3) powers by:

• admonishing the Ministers; and
• awarding the Commissioner expenses on an agent-client, client paying basis.

3. Analysis

3.1 The statutory architecture: why compliance dates matter

FOISA imposes a structured enforcement scheme. Where the Commissioner finds non-compliance with Part 1 FOISA, a decision notice must specify: (a) the failed provision; (b) the steps to comply; and crucially (c) the time within which those steps must be taken (section 49(6)). The compliance date cannot expire before the end of the appeal period (section 49(7); appeal under section 56).

Lady Poole treated the compliance date requirement as central, not decorative. If authorities could self-extend compliance, the “availability of enforceability measures” and the overall FOISA scheme would become uncertain and diluted. The judgment therefore frames section 49(6)(c) as doing real work: the Commissioner sets the timetable; the authority either complies, appeals (stopping the clock for affected steps), or seeks and obtains a dated extension.

3.2 Threshold discretion: when should the court “inquire” under section 53(3)?

The court identified a staged decision structure under section 53(3):

• Stage 1: Should the court inquire? (a discretion, because section 53(3) uses “may”).
• Stage 2: If inquiry is made, does the evidence show failure to comply with required steps?
• Stage 3: If failure is established, should the court deal with the authority as if in contempt, and if so, what sanction?

Although section 53 FOISA had not previously been litigated, the court treated FOIA authorities as instructive given the broadly parallel scheme and the shared need for effective enforcement.

3.3 Precedents cited and their influence

3.4 Rejecting a “gateway judicial review” of certification

The Ministers argued that certification was irrational and that the court should dismiss the petition on a judicial review-type basis. The court rejected that approach for structural reasons:

• section 53(3) itself provides a potentially wide-ranging merits inquiry (including evidence and defence statements);
• judicial review principles are generally unnecessary where the statute provides a direct merits mechanism;
• the court can control misuse through its discretion (including refusing sanction and making adverse expenses awards).

In any event, the court observed that the Ministers’ admitted non-compliance by the statutory deadline, coupled with correspondence implying self-determined compliance timing, made the Commissioner’s certification far from irrational.

3.5 What counted as “contemptuous” in this FOISA setting

Although section 53(3) uses the language of contempt of court, Lady Poole emphasised that the case concerned “contempt of the Commissioner” in the sense that the court is empowered to deal with the authority as if contempt of court had occurred. The contempt analysis was nevertheless treated as a “gateway” to sanction.

Two core findings drove the contempt-equivalent outcome:

• Deliberate omission: the Ministers deliberately did not meet the deadline, inferred from (i) the decision to spend much of the compliance window on appeal-related internal processes rather than disclosure preparation, and (ii) the delayed start to intensive redaction work until January.
• Self-extension posture: the letters of 15 and 22 January 2026 asserted compliance would occur “as soon as possible/practicably possible” without (i) seeking an extension before expiry, or (ii) proposing a dated alternative—contrary to a scheme where the Commissioner sets the date.

Complexity was acknowledged (existing anonymity/protective court orders; risks of “jigsaw identification”; volume of documents; holiday period), but did not justify unilateral timetable control.

3.6 Sanction and expenses: why admonishment plus agent-client expenses?

The court treated the available responses as wide: from no sanction to fines or imprisonment (by analogy with contempt powers), plus orders for performance and expenses. On the facts, it chose a measured but real consequence:

• Admonishment reflected that the Ministers eventually complied and did not deny they would comply, but also that the delay was substantial and involved a flawed approach to statutory authority.
• Agent-client, client paying expenses reflected (i) the need to vindicate the Commissioner’s authority and FOISA’s rule-of-law function, and (ii) the Ministers’ lack of apology or contrition, and absence of concrete steps to prevent repetition.

The court considered, but did not treat as decisive, points such as the Commissioner’s internal handbook on compliance periods and enforcement sequencing; it stressed that the handbook is guidance, not law, and does not fetter the statutory power to certify.

4. Impact

4.1 Enforcement under FOISA: section 53 is “real”

This decision operationalises section 53 FOISA as a credible enforcement route where an authority misses a decision notice deadline. It signals that:

• late compliance does not necessarily moot the court’s role; the court may still mark the breach and protect the integrity of FOISA timetables;
• authorities should not expect the court to treat statutory deadlines as flexible defaults.

4.2 Practical governance consequences for Scottish public authorities

Public authorities (including those with significant resources) are put on notice that they should:

• start compliance work promptly upon receipt of a decision notice (including running appeal assessment and disclosure preparation in parallel where appropriate);
• if genuinely unable to meet the deadline, contact the Commissioner before expiry and seek an extension to a specific date with reasons;
• treat “as soon as possible” assurances as inadequate in the statutory scheme.

4.3 Alignment with FOIA contempt approaches

The judgment promotes cross-regime consistency: FOISA enforcement is approached in a manner compatible with FOIA authorities (notably on the irrelevance of subjective intent to the existence of contempt, while keeping intent relevant to sanction).

5. Complex Concepts Simplified

• Decision notice (FOISA section 49): the Commissioner’s formal determination after investigating a complaint about an FOI request. If the authority is found to have failed to comply, the notice states what must be done and by when.
• Appeal on a point of law (FOISA section 56): a route to the Court of Session to challenge legal error in the decision notice. If appealed, affected steps are paused (section 49(7)).
• Certification and inquiry (FOISA section 53): if required steps are not taken by the compliance date, the Commissioner may certify the failure. The court may then inquire, hear evidence/defences, and decide whether to apply contempt-equivalent powers.
• “Jigsaw identification”: where separate pieces of disclosed information, when combined, could reveal a protected identity even if names are removed—especially relevant where court orders protect complainers’ anonymity.
• Agent-client, client paying expenses: a more punitive/indemnity-style expenses basis, typically reflecting disapproval of conduct and aiming to compensate the successful party more fully than ordinary expenses.

6. Conclusion

[2026] CSOH 50 establishes an important operational principle for FOISA enforcement: where a decision notice is unappealed, a public authority must comply within the Commissioner-set deadline (or seek a dated extension), and cannot lawfully “self-extend” by vague assurances. Missing the statutory deadline—through deliberate omission—can justify the Court of Session dealing with the authority as if it had committed contempt of court, even if the authority later complies and did not subjectively intend disrespect. The outcome (admonishment plus agent-client expenses) demonstrates that section 53 FOISA is designed not only to secure disclosure, but to uphold the Commissioner’s authority and the rule-of-law character of FOISA’s time-limited regime.