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. By request made on 03 July 2020, Mr Mitchell asked a specific department within the Trust to provide him with: a simple monthly table which is local area specific to Plymouth (i.e. postcode area) from Jan 2014 to May 2020 regarding the amount of scans undertaken for severe headaches that has been listed as migraines.

11. The Trust, on 06 July 2020, asked Mr Mitchell to clarify what scans were required, Mr Mitchell replied by saying all scans.

12. The Trust, on 06 August 2020, informed Mr Mitchell that the information he requested was not available as there is no direct correlation in a patient’s records to a mention of migraines and a scan taking place.

13. An internal review was conducted and that concluded that the Trust could not extract a report linking scans to migraines.

14. The ICO investigated whether the Trust had complied with its obligations under FOIA and, in the DN concluded that: a. On the balance of probabilities, the Trust does not hold the information sought. b. The Trust had complied with section 1(1) (a) of FOIA. Grounds of appeal

15. By Notice of Appeal dated 29 November 2021, Mr Mitchell appealed to this Tribunal against the DN. His grounds of appeal are at page A9 of the bundle for EA/2021/0281. The Grounds of Appeal assert: a. He does not believe the Trust’s assertion that the information is not held. b. Discharge notes from the specific department should have been looked at. Response

16. By response dated 09 May 2022 (pages A13 to A22 of the Bundle), the ICO resists the appeal.

17. At paragraph 21 (page A19) the ICO sets out information found on the webpage of The Migraine Trust about the diagnosis of migraine. That information commences “There is no actual test to diagnose migraine”. a. The DN sets out that the Trust’s interpretation of the wording of the request, namely that Mr Mitchell wanted the number of scans for severe headaches which have been diagnosed as migraine to be a reasonable interpretation paragraphs 22 to 23). b. The ICO then explains that, as The Migraine Trust states that migraine is not diagnosed by scan, the ICO would not expect any information to be held which meets the terms of the request (paragraphs 23 to 24). c. The ICO continues by stating that the Trust may hold some information as presenting symptoms (not diagnosis) but that information would not fall to be disclosed within the scope of Mr Mitchell’s request (paragraphs 25 to 26).

18. The response goes on to deal with what the Tribunal can (and cannot) do, namely that the Tribunal’s role is confined to what Parliament gave it power to do – decide if the DN is wrong in law or discretion. The Tribunal, the ICO argues, does not have power to re-write reasons for a decision. Appellant Reply

19. By email sent on 05 June 2022 at 10:46, Mr Mitchell replied to the ICO’s response; his reply is found at Bundle pages A23 to A25. He asserts that the balance of probabilities cannot be used in this case. Mode of hearing

20. 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

21. 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.

22. 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.

23. 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).

24. For this appeal, t he Tribunal was provided with: a. An Open Bundle comprising of 103 pages. This includes, at pages C88 to C91 the Trust’s explanation to the ICO of why they were unable to provide the information requested in this request (and in another request). 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 (i.e. this appeal), EA/2021/0283 and EA/2021/0352.

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

26. Mr Mitchell provided CTPA scan information which has been provided to him.

27. 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

28. 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

29. 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.

30. 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.

31. 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 Trust. The hearing

32. 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.

33. 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.

34. 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.

35. 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.

36. 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

37. Mr Mitchell’s submissions were that the Trust has provided him with CTPA scan information but he did not want that, he wanted CAT scan information only. We note that the DN states that, when he was asked what type of scan information he wanted in relation to this request, he stated “all”. That is found at page A158 of the Emails bundle where Mr Mitchell on 6 July 2020 at 15:03:22 BST writes (grammar and emphasis as in original): … And Clarifying that the Dr E Househam letter refers to the FOI request 20FOI098. With reference to: Please can you clarify the type of scans to which this request refers? All Scans

38. He further submitted that this information will be held on discharge summaries and that he told the Trust this after he received their response and prior to their review which, he submitted, was conducted too quickly.

39. The Trust’s explanation for being unable to provide the information was to do with the granularity requested prevented the Trust from providing the numbers sought. They do not record in a standard, searchable form whether “migraine” is the reason for a scan.

40. The Trust read the request to mean that Mr Mitchell wanted the number of scans undertaken for severe headaches when the scan was listed as “migraine”. It appears that Mr Mitchell may have wanted to be provided with the number of scans undertaken (on a monthly basis) where the outcome diagnosis was “migraine”. Mr Mitchell’s suggestion of checking discharge notes perhaps should have alerted the Trust to clarify with him whether he wanted scans which were done because of migraine or a scan which was done on any patient who was then diagnosed with migraine.

41. We carefully considered whether the Trust had discharged their duties under section 16 FOIA to give advice and assistance. The single clarification that they asked for was the type of scans. Even though it became clear that Mr Mitchell wanted information about diagnosis of migraine and scans, we note that the Trust explained that migraine is a symptom which would be in a free text box in an electronic record and therefore not held in a searchable and retrievable form in the way Mr Mitchell envisaged; we also note that The Migraine Trust speaks of diagnosis of migraine, but that it is only made once every other possible cause is ruled out. Conclusion

42. For the reasons set out above, we are satisfied that, on the balance of probabilities, the Trust does not hold the information which Mr Mitchell was seeking in the specific terms of this request.

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