John Mitchell v The Information Commissioner

Background

1. Mr Mitchell is very concerned about air pollution in Plymouth and that it is poisoning people living in Plymouth and causing deaths to residents of Plymouth.

2. He has sought information about his concerns from various public bodies. This appeal is one of six that this Panel considered. We are aware that Mr Mitchell has, over the course of a few years, lodged a number of other appeals in this Tribunal against other decisions of the ICO. We were listed to hear these appeals over a period of 2 days (21 and 22 January 2026), such time including Panel Deliberation but not including preparation. The law

3. As far as is relevant, FOIA provides: General right of access to information held by public authorities 1(1) Any person making a request for information to a public authority is entitled— (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him. (2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14. (3) … (4) The information— (a) in respect of which the applicant is to be informed under subsection (1)(a), or (b) which is to be communicated under subsection (1)(b), is the information in question held at the time when the request is received, except that account may be taken of any amendment of deletion made between that time and the time when the information is to be communicated under subsection (1)(b), being an amendment or deletion that would have been made regardless of the receipt of the request. (5) A public authority is to be taken to have complied with subsection (1)(a) in relation to any information if it has communicated the information to the applicant in accordance with subsection (1)(b). (6) In this Act, the duty of a public authority to comply with subsection (1)(a) is referred to as “the duty to confirm or deny”.

4. FOIA defines “Information” at section 84 which provides: Interpretation 84 “information” (subject to sections 51(8) and 75(2) means information recorded in any form;

5. There is a process of challenge – the first challenge is for the Requester to apply to the ICO for a Decision Notice (FOIA, section 50). If either side (the Requester or the PA) wishes to challenge the ICO’s Decision Notice, they are entitled to appeal to this Tribunal (FOIA, section 57). This Tribunal’s powers are found in FOIA, section 58 which provides: Determination of appeals 58(1) If on an appeal under section 57 the Tribunal considers— (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

6. In determining whether information is, or is not, held, we apply the normal civil standard of proof which is the balance of probabilities (see Preston v ICO and Chief Constable of West Yorkshire Police [2022] UKUT 344 and Bromley v IC and Environment Agency [2007] UKIT EA_2006_0072 (31 August 2007).

7. The House of Lords case of Common Scottish Agency v Scottish Information Commissioner [2008] UKHL 47 considered what “held” means in the Scottish equivalent of FOIA. From that case, we can see that a PA is not be required to create information, but only to provide information already held (subject, of course, to the application of any exemptions).

8. The case of Bromley v IC and Environment Agency [2007] UKIT EA_2006_0072 (31 August 2007) also enables the Tribunal to consider that, whilst there can seldom be absolute certainty that information does not remain undiscovered somewhere within a PA’s records, but the Tribunal’s task is to consider whether it is likely that the PA was, at the time of the request, holding relevant information.

9. In considering the scope of a request under FOIA, the First-tier Tribunal held in Department for Culture, Media and Sport v IC ( [2010] UKFTT EA_2009_0038: Freedom of Information Act 2000 ) In general the scope of a Freedom of Information Act request (which is what gives rise to and defines the obligations of a public authority under section 1(1) of the Act ) must be determined by an objective reading of the request itself in light of any relevant background facts. In this case the parties expressly agreed the scope of the request (see paragraph 9 above; only (b) of the agreement is relevant for the purposes of the appeal but it must obviously be read with (a)) and the Tribunal’s task is to interpret the words of that agreement against the relevant background set out above. Background

10. Mr Mitchell wanted to know about the environmental health impact of a particular waste incinerator. As we understand it, Mr Mitchell requested information from PHE on 31 October 2019. Mr Mitchell’s MP intervened by writing to PHE on 21 January 2020, after that intervention, PHE provided a response. The DN sets out 2 requests made (see Bundle pages A2 to A3), they are lengthy and we do not repeat them there.

11. When PHE provided a response via the MP, they said that they dealt with one of the requests under Data Protection Act legislation as it was a request for information which would identify Mr Mitchell (the requester). The second request, PHE said, had been dealt with by providing Mr Mitchell with a link to published information of some relevance, they had also provided an explanation to Mr Mitchell.

12. PHE provided an internal review on 26 March 2021; in that internal review, PHE stated it had provided to Mr Mitchell the information that some of Mr Mitchell’s request was not for recorded information (which is all that is available under FOIA) and that it had already provided links to information which is recorded. Specific items of “health study”, “yearly reviews” and “annual admittance and referrals numbers” were, PHE said, not held.

13. The ICO investigated whether PHE had complied with its obligations under FOIA and, in the DN concluded that: a. On the balance of probabilities, PHE does not hold the health report, yearly reviews or patient admittance and referral numbers that the complainant [had] requested. b. PHE had complied with section 1(1) (a) of FOIA. Grounds of appeal

14. By Notice of Appeal dated 30 November 2021, Mr Mitchell appealed to this Tribunal against the DN. His grounds of appeal are at page A19 of the Bundle. Supporting documents of nearly 400 pages were provided (which appear to be the information provided to Mr Mitchell). The Grounds of Appeal assert: a. There was a lengthy delay by PHE and he had to get his MP involved. b. PHE did not reply within the statutory timescale. c. The information is outdated. d. False information was provided. e. You “cannot use the balance of probabilities regarding health info[rmation] requested”. Response

15. By response dated 11 May 2022 (Bundle pages A425 to A440), the ICO resists the appeal, mainly relying on the DN for its explanation as to why. It set out in more depth the legal position regarding issues of “held or not held”. Appellant Reply

16. By email sent on 07 June 2022 at 11:11, Mr Mitchell replied to the ICO’s response; his reply is found at Bundle pages A441 to A444 and sets out background information about why Mr Mitchell, quite simply, does not believe that PHE does not hold additional information to that already provided to him. Mode of hearing

17. The Tribunal was satisfied that it was fair and just to conduct the hearing using Cloud Video Platform (CVP), all parties were able to join remotely. The ICO decided not to participate, Mr Mitchell joined by telephone. Over the course of the hearing, breaks were taken when needed and Mr Mitchell was given the opportunity to present his case. Evidence and submissions

18. The bundles for all 6 appeals total over 5000 pages; there are pages duplicated within those. It seems that neither party has assisted the Tribunal to receive a bundle for each appeal which focusses on the issue for that appeal; or, as an alternative, a combined bundle which dealt with all appeals.

19. Mr Mitchell expressed his frustration with the way in which the bundles had been prepared and presented but stated that he was happy to continue rather than adjourn for him to prepare his own bundles for the listed matters.

20. The Tribunal took the view that it should not confine itself only to the documents in a specific bundle for each appeal when it was clear that a document found in one of the bundles was relevant to a different appeal (for example because it was a Ruling or Direction that named the other appeal).

21. For this appeal, t he Tribunal was provided with: a. An Open Bundle comprising of 1,215 pages. b. A separate bundle, comprising 2541 pages, consisting of various emails and other documents regarding all the appeals for our consideration – EA/2021/0247, EA/2021/0280 (i.e. this appeal), EA/2021/0281, EA/2021/0283 and EA/2021/0352.

22. Submissions from the party attending the hearing, namely Mr Mitchell.

23. Mr Mitchell provided additional information by emails (which may appear in the 2541 emails bundle) but Mr Mitchell was unable to direct us to the specific page. During the hearing, we were able to refer to emails sent as follows: a. On 12 February 2025 at 10:32 to the GRC and 3 individuals at the ICO; this had 4 attachments. b. On 08 January 2026 at 18:11 to the GRC and 7 individuals at the ICO; this had 4 attachments (including the joining instructions for the CVP hearing). c. On 16 February 2025 at 12:14:25 GMT to the GRC and 6 individuals at the ICO and also sent to 2 addresses which appear to be Devon and Cornwall Police; this had 9 attachments. d. The gist of an email which had been received by the GRC. e. Attachments from an email sent to the GRC, the attachments being titled: i. Correspondence_OSR_and_PHE_re_deaths_related_to_air_pollution_FOI_response.pdf ii. 20210916 Plymouth mortality enquiry_1.0.docx iii. 20FOI1092 Response letter.pdf iv. 20FOI092 Attachment One – CTPAs Numbers by Month.xlsx v. 20FOI151 Response letter.pdf

24. After the hearing and without any accompanying GRC5 requesting to file additional information, Mr Mitchell sent 2 emails which were forwarded to the Panel. They were: a. One sent on 21 January 2026 at 15:25 to the GRC only, including comments not seen by the ICO and an email which have been sent to at least one person at the ICO and to the GRC on 12 November 2025 at 09:18:23 GMT. It had 3 attachments, but it seems the attachments were not sent with the email to the ICO. Those attachments are titled: i. OP.MR/01/03/DT IBA Collection I4 290917.pdf ii. Section_106_Agreement_-_FINAL.pdf iii. 63091defraairqualityguide9web.pdf b. A second sent on 21 January 2026 at 15:37 to the GRC only and seemed to forward an email which had been sent to the Upper Tribunal (the ICO not, apparently, copied in). It also had attachments: i. App letter 1201202925 ii. UA 2025 001672 GIA PTA refusal TWM.pdf iii. Mitchell, John – EA.2023.0296 – PTA Decision.pdf iv. Tp_2018_07_19_kitchlu_tpa-2018-0039_sdc1.pdf v. 151 250325 GRC FTT Decision.pdf

25. The email (not seen by the ICO) indicated that this was information and attachments sent so that the Panel did not need to find them in the bundles provided for the appeals we had been hearing. With respect to Mr Mitchell, that was not helpful. If he had specific pages in the bundles to bring to our attention; he should have done so during the hearing; he was given plenty of opportunities to do so, including having 3 breaks, one for 5 minutes at around 11 a.m.; another for 30 minutes at 11:45 a.m. (which Mr Mitchell had quite properly asked for) and another for 45 minutes at 1:15 p.m. By the time of each of those breaks, Mr Mitchell was aware of the need to direct the Panel to pages within the bundles and those breaks enabled him to find pages if he had not done so ahead of the hearing.

26. The Panel did consider the emails sent after the hearing, albeit with some hesitancy as it was clear that the ICO had not been copied into the email with the wording set out above and it was not clear whether (and, if so, when) the attachments had been sent to the ICO. We summarise the contents as being: a. Information about the underlying issue of environmental damage and air pollution in Plymouth. b. A copy of a decision by a different Judge in the GRC who struck out appeal number EA/2022/0296 and refused permission to appeal against that strike out. c. A copy of the Upper Tribunal Judge Wikeley’s refusal of permission to appeal alongside his certification that the application by Mr Mitchell was totally without merit.

27. Whilst the underlying issue is relevant, the information about it did not assist us to determine whether the information sought through this request and in this appeal was or was not held by the EA. The hearing

28. The Judge explained at the start of the hearing that the time allocated was for the Panel to hear submissions from Mr Mitchell and for the Panel’s deliberations to enable a decision to be made. The Judge sought to keep Mr Mitchell focused on the actual issues that the Panel could determine, but allowed Mr Mitchell to speak at length about the environmental concerns.

29. The Tribunal observed with considerable concern the Appellant's conduct and approach throughout these proceedings. The Appellant demonstrated a persistent disregard for the authority of the Tribunal and the presiding judge, as well as for directions and decisions previously made by the judiciary in this matter.

30. Furthermore, the Appellant appeared inadequately prepared for the hearing. When requested to direct the Tribunal to relevant documents within the Bundle (or any other bundle that had been provided for these appeals) to substantiate his submissions, the Appellant refused to do so, instead asserting that this task was too difficult for him and expecting the panel to locate the evidence independently. This approach materially hindered the Tribunal's ability to consider the Appellant's case efficiently and thoroughly.

31. Mr Mitchell was invited to draw the Panel’s attention to particular parts of the Bundle (or any other bundle that had been provided for one of these appeals) which supported his contention that this information was held by PHE.

32. Mr Mitchell believes that each appeal should have been given a day; however, the Panel was satisfied that having these 6 cases heard together, with submissions on day 1 and deliberations at the end of day 1 and into day 2 was fair, just and proportionate and within the overriding objective.

33. During the hearing, the Judge took Mr Mitchell through the whole of the requests.

34. Mr Mitchell agreed that the following was a request for personal information (formatting, spelling and grammar as found in the DN at Bundle pages A2 to A3, noting that the name Duncan Selbie appears in the publicly available document): All PHE internal emails with regards to my enquires and complaints. Including email Proof that my complaint has been reviewed by Senior Management as many issues within the complaint have not been independently addressed regarding the conflict of interest.

35. Mr Mitchell agreed that the following were explanations or statements: Also to be provided: Statement and explanations Duncan Selbie to confirm the PHE stance on waste incineration safety within the UK. Providing a full explanation as to why such limited scope was used for the incinerator studies undertaken by imperial and kings college. The accuracy of equipment capability was never documented or questioned. No record of independent readings comparisons from the sampling positions within the stack were noted. Other failings :

1. They have not taken into consideration stack data manipulation for continuous emissions measurement or tabled the level of measurement uncertainty.

2. They have not taken into consideration the constant recalibration required for those systems.

3. They have not taken into consideration the operable range capability of the equipment fitted.(equipment range settings were not checked or noted within the studies )

4. They have not taken into consideration the hard facts that there is no Mandatory standard public access data Website record for continuous monitoring of industrial air pollution being conducted to protect life and the Environment. (Inside the stacks or offsite )

5. A full and detailed explanation needs to be provided by PHE with regards to the equipment that was used for the incinerator studies by Kings and Imperial college

6. An apology needs to be issued regarding the insensitively of the way PHE dealt with the situation. PHE Now have to prove that there is no significant risk from MVV’s Incinerator, the only way of doing that is by providing the relevant Health data for Plymouth and the surrounding areas before the plant was operational to the Present Day. Insufficient modelling was provided before the plant was built. That modelling should have been reviewed after the plant became operational. The site was chosen and built because of the Health study that was conducted.

36. Mr Mitchell agreed that the following were requests for information: A copy of that Health study needs to be supplied. The yearly reviews that have been conducted needs to be supplied : Annual patient admittance and referrals numbers for 2014 to the present day for the Plymouth region to include : Miscarriages and still births, cancer, nose, throat, chest and lung infections ,asthma treatments, COPD, circulatory problems, strokes, heart attacks, type 2 diabetes, osteoarthritis ,sciatica, migraines, carpal tunnel. Consideration

37. During his submissions, Mr Mitchell said that yearly reviews are carried out by the Public Health Department of Plymouth City Council, these reviews are conducted under the direction of PHE. Further, Mr Mitchell during the course of the hearing asserted that there is no regulator monitoring of emissions from this particular waste plant.

38. The Panel consider that, if Mr Mitchell is right that there is no regulatory oversite of this plant, then it is highly likely that no documentation would be held. Afterall, why would PHE (or any other PA) hold information about a site with which they are not involved.

39. The Panel carefully considered whether it was reasonable to conclude that PHE must hold a yearly review which is carried out by Plymouth City Council. On balance, it is reasonable to conclude that. All public bodies (indeed, all data processors) will only retain the data that they need to retain. If PHE does not need to retain it then, even if a citizen such as Mr Mitchell believes they should hold it they, quite simply, will not hold that data.

40. In their internal review (see Bundle pages D889 to D891) and in a follow up letter on 7 May 2021 to Mr Mitchell (see and D961 to D963), PHE explained in detail why they did not need to hold the information and demonstrated that they had made appropriate searches for the information. Further, they did not seek to prevent Mr Mitchell from obtaining the information but pointed him to other PAs which may be able to provide it to him. Conclusion

41. We ask ourselves whether PHE probably does hold the information sought by Mr Mitchell, our answer is “probably not”.

42. We dismiss the appeal. Signed Date: Judge Worth 03 February 2026