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) FOIA defines “Information” as section 84 which provides: Environmental Information 39(1) Information is exempt information if the public authority holding it— (a) is obliged by the environmental information regulations to make the information available to the public in accordance with the regulations, or (b) would be so obliged but for any exemption contained in the regulations. Interpretation 84 “information” (subject to sections 51(8) and 75(2) means information recorded in any form;

4. The Upper Tribunal in the case of Shiel v Information Commissioner [2024] UKUT 369 (AAC) considered the question of EIR or FOIA. Its decision may be distilled into the following: a. A qualifying condition in EIR Regulation 2(1)(c) must be met, i.e. “likely to affect or designed to protect elements and factors in 2(1)(a) and (b)”. b. Once the measure or activity is established, there must then be found a connection to the environment.

5. The process of challenge is in FOIA (the EIR adopting the already established FOIA process). 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. Background to this appeal

6. For over a year, Mr Mitchell corresponded with the EA. The EA dealt with this correspondence in various ways, including by providing responses under FOIA and EIR. By request made on 09 November 2020, Mr Mitchell asked the EA to provide him “a copy of the full Tim de Winton report”; it appears to be common ground that this request was made in reaction to the HD Letter (a letter sent to Mr Mitchell by the EA and dated 31 January 2020 and found at Bundle pages C483 to C485) and after an initial email being sent on 2 February 2020 at 08:10:49 GMT where Mr Mitchell wrote: “Can you please ensure that I receive a full copy of the Tim de Winton (Area Environment Manger) report asap as a copy was not included in the letter below from the Area Director [name].”.

7. The EA dealt with this under the EIR and informed Mr Mitchell that the information he requested did not exist. The EA maintained that position following internal review.

8. The ICO investigated whether the Trust had complied with its obligations under FOIA and, in the DN concluded that: a. The information was not environmental information. b. The EA does not hold the information requested. Grounds of appeal

9. By Notice of Appeal dated 28 November 2021, Mr Mitchell submits: a. No searches were conducted. b. The information was health and safety information and, therefore, was EIR. c. The balance of probabilities cannot be used if there were no searches conducted. Response

10. By response dated 11 May 2022 (pages A247 to A259 of the Bundle), the ICO resists the appeal. They submit: a. That FOIA was the correct regime to apply, the information being too remote from impact on the environment to be “environmental information” under EIR. b. The balance of probabilities is the right test, in law, to apply.

11. The response goes on to ask that the appeal be struck out and, if not struck out, dismissed. A Registrar struck out the appeal in full.

12. As set out above, Judge McKenna’s rule 4(3) reconsideration is at pages B283 to B285. That makes it clear that the only issue which was reinstated was whether the EIR or the FOIA applied. She did not reinstate the question of whether the information is held. That is clear from paragraph 8 of her decision which concludes: a. … this appeal may proceed to a hearing on the applicable regime ground only.

13. To overturn that decision, a party was entitled to apply for Permission to Appeal. So far as this Panel is aware, no application for permission to appeal was filed within the permitted time period and an extension of time to do so was refused (see Judge McKenna’s ruling on 1 February 2023, Bundle pages B287 to B289).

14. Therefore, this decision will confine itself to the question of whether the EA was right to consider this request under the EIR or whether the DN was right to find that FOIA was the correct regime. Appellant Reply

15. By email sent on 07 June 2022 at 22:17 (Bundle pages A260 to A264) Mr Mitchell replied to the response and set out his representations against strike out. 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 615 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/2021/0282, EA/2021/0283 (i.e. this appeal) and EA/2021/0352. c. Submissions from the party attending the hearing, namely Mr Mitchell.

21. 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 f. In respect of this appeal, in an email sent on 08 January 2026 at 18:11 to the Tribunal and to the ICO, Mr Mitchell wrote (formatting as in original): EA - DCIS - EA/2021/0283 - relevant email dated - D543-D545 - response to that email D568-D570 - emails to MP and Defra-various Secretary’s of state for the Environment. No environmental management waste sorting system implemented at the plant Mass burn facility - The paper info supplied by DCIS - has not been recorded as an electronic record with regard to my requests for information - the commissioning report details are not listed, one falsified emission to air report dated the 2018 supplied - no report for 2015 or after 2018 has been supplied to date - to actual audits have been supplied - insufficient CAR info supplied - History of information requests not included in the bundle to check what info had been included in the internal review Outstanding info still not been supplied Outstanding contempt of court case relevant - further whitewash by [named individual] regarding site report and audit info requested. FT /EA/2024/0116 decision very relevant to this case (EA/2021/0283)- further attempt to withhold information.

22. 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

23. 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.

24. 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.

25. 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

26. 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.

27. 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.

28. 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.

29. 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 EA.

30. 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.

31. Before asking Mr Mitchell for submissions about this appeal, the Judge set out that the sole issue for this Panel is whether the DN was right to conclude that this information came under the FOIA regime or whether the EA was right to deal with it under EIR. That was made clear by Judge McKenna in her written rulings and by the Judge at the hearing on 21 January 2026. Mr Mitchell sought to argue that the Panel must go further than that, and whilst he was permitted to make submissions about the environmental impact of a plant in Plymouth, the Panel will only consider those submissions through the narrow lens given to it by Parliament, namely to determine whether the DN was, or was not, wrong in law. Consideration

32. We apply the law and first look for what activity or measure this information is about. We remind ourselves that the review which Mr Mitchell clearly referred to in this request was the one referred to in the AD Letter. Mr Mitchell’s submissions confirmed this as he explained that he says the information he sought, which Tim de Winter was considering on review would be about the environment. Therefore, he argues, any report about the way the request was handled must be environmental information. However, his submissions seemed to be quite clear that, whilst he will argue about EIR/FOIA he simply wants the report.

33. We find that the activity or measure that any report would be about is the activity of how Mr Mitchell’s request for information was dealt with. That activity cannot reasonably be described as being likely to affect the environment as it was about whether some information could, or could not, be provided to Mr Mitchell.

34. Therefore, we find that the information (i.e. the report) was not environmental information as defined in the EIR. Conclusion

35. We consider that the DN was right to conclude that, if it existed, a manager’s internal review about a request for information is too far removed from any substantive information for the internal review to be considered environmental information. Therefore, we agree that FOIA was the right access to information regime to apply.

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