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, the EIR provides:

5. — Duty to make available environmental information on request (1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request. ….

12. — Exceptions to the duty to disclose environmental information (1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if– (a) an exception to disclosure applies under paragraphs (4) or (5); and (b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. (2) A public authority shall apply a presumption in favour of disclosure. (3) To the extent that the information requested includes personal data of which the applicant is not the data subject, the personal data shall not be disclosed otherwise than in accordance with regulation 13 . (4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that– (a) it does not hold that information when an applican t’s request is received; ….

4. To challenge a PA’s decision, a Requester uses the FOIA regime (see regulation 18 of the EIR) which means that 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.

5. The principles of FOIA and EIR are so closely related that any reasons and legal principles that are found in cases and authorities which on FOIA will apply to EIR unless it is clear that they are distinguishable.

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 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. By a request made on 10 March 2021, Mr Mitchell wrote to the Trust and requested information. His request (as found at paragraph 4 of the DN) was for provision of:

1. The full UHP annual statistics – neighbourhood specific for Deaths linked to air pollution in Plymouth from Jan 2014 to March 2021.

2. The number of medical autopsies for the same period of time conducted for deaths linked to air pollution.

11. The Trust responded on 18 March 2021 stating it does not hold the information sought. This was confirmed by internal review on 05 May 2021.

12. The DN found that the Trust did not hold the information (noting this “may be surprising” see paragraph 27 of the DN); it further concluded that the information, if held, would be subject to the EIR. Grounds of appeal

13. By Notice of Appeal dated 27 November 2021, Mr Mitchell appealed to this Tribunal against the DN. His Grounds of Appeal are at page A10 of the Bundle for EA/2021/0352 and set out: a. He made the same request to many other PAs. b. The source information held by the Trust is shared with all of those PAs. Response

14. In a Response dated 15 th May 2022 (Bundle pages A19 toA31) the ICO resists the appeal. Appellant Reply

15. By reply sent on 06 June 2022 at 21:17, Mr Mitchell reiterated that he does not believe the Trust when it says that it does not hold the information requested. Mode of hearing

16. 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

17. 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.

18. 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.

19. 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).

20. For this appeal, t he Tribunal was provided with: a. An Open Bundle comprising of 66 pages; an additional documents bundle of 33 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, EA/2021/0281, EA/2021/0283 and EA/2021/0352 (i.e. this appeal).

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

22. 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

23. 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

24. 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.

25. 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.

26. 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

27. 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.

28. 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.

29. 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 one of 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.

30. 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 the Trust.

31. Mr Mitchell believes that each appeal should have been given a day; however, the Panel was satisfied that having these 6 appeals 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. Consideration

32. In his submissions for this appeal, Mr Mitchell explained that there is a key word in his request: “linked”. He says that, because other bodies estimate the numbers of deaths which are linked to air pollution (such numbers appear in newspapers and are stated by campaign groups), the source for those estimates must come, at least in part from the Trust. He gave an explanation as to the amount of different data sources which he has used to conclude that air pollution is killing people in Plymouth. He therefore argues that, as the Trust’s information (numbers) must be part of the estimated figures for deaths linked to air pollution, the Trust must hold the information.

33. Any cause of death is recorded on a Death Certificate. We accept that Death Certificates are not held by the Trust under FOIA – if they are in possession of them, then that is because they hold them on behalf of the Coroner. In any event, Death Certificates are publicly available via the General Registry Office.

34. As a Panel, we find that “linked” does not mean that a check is made to see if any Death Certificate records “air pollution” as a cause of death, and it appears that is now what Mr Mitchell seeks. Further, we find that whilst some of the Trust’s information may have been used for a different person or body to make an estimate of how many deaths are caused by air pollution, this does not equate to the Trust being able to answer this request of Mr Mitchell’s.

35. Whilst the Trust may hold information which could inform a mathematician or statistician to model an estimate of deaths, it is not reasonable to conclude that the Trust is therefore able to identify information which would meet the requirement of this request by Mr Mitchell. Conclusion

36. From the documents provided in the bundles, and which Mr Mitchell was invited to refer us to, we are unable to conclude that the Trust holds information which meets the terms of this request.

37. We, therefore, cannot conclude that the DN was wrong in law or discretion and we dismiss the appeal. Signed Date: Judge Worth 03 February 2026