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 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 cancer statistics in Plymouth. After a request made on 7 th December 2020 and refined on 21 st December 2020, Mr Mitchell received some statistical information about cancer statistics for Plymouth. On 24 th December 2020, Mr Mitchell made a further request (see page A2 of the Bundle, paragraph 8 of the DN). We do not set it out in full.

11. The Trust provided Mr Mitchell with some of the information, withholding numbers fewer than 5 citing confidential information and personal data exemptions. They said they did not hold a recorded category for “secondary liver cancer (Metastatic cancer) – cancer which started in another part of the body and has spread to the liver”.

12. The Trust conducted an Internal Review of their response and, in a letter dated 17 February 2021 (Bundle page B68 to B69) the Trust wrote to Mr Mitchell that it had fully dealt with his request, would not release further information and was refusing to answer further requests as they considered that section 14 (vexatious requests) applied.

13. Mr Mitchell complained to the ICO who investigated and then issued the DN. During the investigation process, the ICO enabled Mr Mitchell to receive more information as the ICO considered it unlikely that individuals could be identified; giving a strong indication that reliance on exemptions would not be successful. In response to that strong indication, the Trust provided specific figures rather than the “five or fewer” which had previously been provided. The DN concluded that: a. All information had now been provided; and b. The Trust breached section 10 of FOIA as they did not provide the information within 20 working days; and c. No steps were needed to deal with the breach of section 10 FOIA. Grounds of appeal

14. By Notice of Appeal dated 29 November 2021, Mr Mitchell appealed against the DN. His grounds of appeal were: a. He made allegations of criminal conduct. b. There had been data manipulation and information was falsified. c. The Trust had not disclosed the information it held. d. The Trust had not disclosed the postcode information he requested.

15. In the Notice of Appeal form at section 5a, Mr Mitchell also disputed various paragraphs of the DN, that is the reasons for the decision rather than the decision. Response

16. The ICO’s response is found at Bundle A15 to A33. That response (paragraphs 7 to 11) sets out further correspondence that Mr Mitchell sent to the Trust about this request and/or around the time of this request. It further sets out how additional information, originally withheld as “5 or fewer”, was provided in September 2021, resulting in the Trust’s position being that they had now provided to Mr Mitchell all the information held within the scope of his request (as refined).

17. Within the response was an application to strike out the appeal; the Tribunal Registrar, in a decision dated 16 September 2022, struck out the appeal; the appeal was reinstated in full by a Ruling made by Judge McKenna on 3 January 2022 (see page A43 of the Bundle). Appellant Reply

18. Mr Mitchell’s reply (and response to strike out) is found at pages A34 to A36. That focusses on Mr Mitchell’s comparison of figures he received from PHE (Public Health England) and his conclusion that, as the figures are different, the Trust must have falsified its figures. Mode of hearing

19. 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

20. 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.

21. 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.

22. 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).

23. For this appeal, t he Tribunal was provided with: a. An Open Bundle comprising of 111 pages; alongside Case Management Directions for this appeal which were found in the open bundle for RS/2021/0280. b. A separate bundle, comprising 2541 pages, consisting of various emails and other documents regarding all the appeals for our consideration – EA/2021/0247 (i.e. this appeal), EA/2021/0280, EA/2021/0281, EA/2021/0283 and EA/2021/0352 .

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

25. 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

26. 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

27. 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.

28. 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.

29. 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

30. 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.

31. 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.

32. 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.

33. 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.

34. 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

35. From the submissions made by Mr Mitchell, we understood that he has compared figures received from NHS Digital and from the Trust and determined that there are different numbers presented in seemingly similar categories. During the hearing, Mr Mitchell was unable to point to any specific discrepancy.

36. The Panel did not scrutinise all the layers of information that Mr Mitchell has obtained as it was for Mr Mitchell to present his case to us. We do acknowledge that the Tribunal has a role in scrutinising what is before it, but that role does not extend, in our view, to investigation which is what would be required if a litigant did not present their own case to the Tribunal. However, as part of the Panel’s scrutinising role, we looked at some of the information received and noted the following: a. NHS Digital, in a spreadsheet titled FOI Ref NIC-648135-Q1NSF records the 2015 figures for cancer site gallbladder in the area University Hospitals Plymouth NHS Trust as 2 for PL6 and 1 for PL7 (total of 3). Their 2016 figures being 1 for PL1, 1 for PL2 and 1 for PL9 (total of 3). b. The Trust’s information, in a spreadsheet titled 20FOI400 Attachment 1 CancerDiagPlymouth_UGI_Diags (Populated) , records figures for 2015 for malignant neoplasm of gallbladder as 1 in PL5, 1 in PL6 and 1 in PL7 (total of 3). Their 2016 figures being 1 in PL1, 1 in PL2 and 1 in PL9 (total of 3).

37. We acknowledge that there is a difference in that the overall numbers are the same, but the postcode allocation is different. We also noted that NHS Digital gave Mr Mitchell numbers for Neuroendocrine Tumours, Non-Hodgkins Lymphoma, Secondary Liver and Duodenum cancers when the Trust did not provide those figures.

38. These difference in numbers/locations are curious, but is insufficient for us to leap to the conclusion that the Trust has manipulated and/or falsified its figures in that category or all categories.

39. The lack of the numbers for Neuroendocrine Tumors, Non-Hodgkins Lymphoma and Duodenum cancers in the spreadsheet provided to us and appearing to be from the Trust is a further curiosity. Their explanation (see B69 of the Bundle) is that, if there is a year without data then “this is because there were no occurrences during that year”. NHS Digital does record some instances in PL postcodes. This does lead to the question of why the Trust did not provide information which NHS Digital was able to provide. We note, on page B68 of the Bundle that the Trust explains that it records only site of cancer, not type of cancer, that could be a reasonable explanation for why certain “types” were not provided to Mr Mitchell.

40. We note, however, that Mr Mitchell had made many requests to the Trust during 2020 (a year when the NHS was under incredible strain due to the pandemic). Mr Mitchell asked follow up questions which were interpreted as further requests for information. It was only on 17 th February 2021 that they indicated a refusal to answer further questions (see B69). Those facts do not, in the Panel’s opinion, provide evidence of a cover up or a reluctance to provide information.

41. We apply the standard “on the balance of probabilities” and ask – it is more likely than not that the Trust holds additional information which meets the terms of Mr Mitchell’s request.

42. On balance, we find that it is unlikely that they do (or at the date of request did) hold additional information. They had done sufficient searches to find the information sought and provided what they had. It is to Mr Mitchell’s benefit that other public authorities could be asked for information to give him a fuller picture of the cancer statistics. Conclusion

43. On balance, we consider that the Trust made adequate searches for the information they held in the scope of Mr Mitchell’s request. Whilst there is a discrepancy between the NHS Digital and the Trust’s information on a granular level, that does not persuade us that the Trust likely held more information which was not given to Mr Mitchell.

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