John Mitchell v The Environment Agency

This is an application by John Mitchell (“the Applicant”) to certify an offence to the Upper tribunal. It relates to the Tribunal’s Substituted Decision Notice (“SDN”) of 2^nd December 2024 and the alleged failure by the Environment Agency (“the Respondent”) to comply with its terms.

On 30^th July 2023, the Applicant requested information from the Respondent relating to an ‘energy from waste’ plant, as summarised by the Information Commissioner, in the following terms:

Following an internal review, the Respondent stated that it had already provided the information in items 1 and 2 of the request, and that it did not hold any information within the scope of item 3 of the request. The matter was referred to the Information Commissioner, who concluded in his Decision Notice of 5^th March 2024, that the Respondent had provided all information that it held within the scope of items 1 and 2, and he accepted that the Respondent did not hold any information within the scope of item 3. That decision was subsequently appealed to the First-Tier Tribunal by the Applicant.

On 2^nd December 2024, District Judge Watkin, sitting as a Judge of the First-tier Tribunal, provided the Tribunal’ written decision in the appeal (FT/EA/2024/0116). Item 3 above was determined by the judge to relate to the Respondent’s handling of email communication received from the Appellant, and it is apparent from the judge’s written decision [at paras. 23-27] that the Applicant was required to clarify what he was seeking in each of the three items set out in his original request. The judge commented that the explanations were “extremely difficult to follow”, though this may have been, at least in part, caused by the Appellant having to attend by telephone, rather than by video, as a consequence of IT issues he was having at the time, and being unable “to freely navigate the bundle which caused some issues and delays”. Nevertheless, the Tribunal established the following:

Paragraph 32 of the judge’s written decision confirmed that the Tribunal determined that item 1 in the Applicant’s request should be interpreted by the Respondent as “asking for any review, audit or investigation report carried out during 2023 in relation to the Operator’s compliance with the applicable regulations in relation to the site.”.

In allowing the appeal, the Tribunal issued a Substituted Decision Notice in the following terms:

“1.

The Environment Agency must reconsider the request for information made by the Appellant and dated 30 July 2023 (the “Request”) in view of the findings made by the Tribunal and must issue a fresh response within 35 days of the date on which the Substituted Decision Notice is served upon them.

2.

The Environment Agency’s fresh response must confirm whether information that falls within the scope of the request is held and either disclose it or claim any relevant exemption to disclosure under the Environmental Information Regulations.

3.

In accordance with regulation 9 EIR the Environment Agency must, in connection with the fresh response, provide advice and assistance to the Appellant, so far as it would be reasonable to expect it to do so, to ensure that the formulation of the Appellant’s request is particularised as necessary and to ensure that it is accurately understood.

4.

The fresh response will be subject to the Appellant’s right, under section 50 of the Freedom of Information Act 2000, to make a new complaint to the Information Commissioner.

5.

Failure to comply with this Substituted Decision Notice, which is made by the Tribunal, may result in the Tribunal making written certification of any failure pursuant to section 61 of the Freedom of Information Act 2000 and it may be dealt with as a contempt of court.”

On 6^th December 2024, the Applicant emailed the Tribunal inviting District Judge Watkin to “confirm that you have fulfilled your legal obligation to notify the attorney general and the Lord Chancellor of the very serious issues discussed during the appeal hearing as you are aware actual matters of substance connected to this and other appeals have not been recorded in the DN.”, and proposing amendments to certain paragraphs of the Substituted Decision Notice.

On 10^th December 2024, the Respondent confirmed in an email to the Applicant that “In light of the Tribunal ruling (ref. FT/EA/2024/0116), received on 2 December 2024, we will be considering your request dated 30 July 2023 (FOI/EIR Ref: 320041) afresh. You can expect a response in 35 days (6 January 2025).”.

On 11^th December 2026, the Tribunal wrote back to the Applicant confirming that District Judge Watkin had considered the matter, but had decided that the proposed changes were not necessary and confirming that the Substituted Decision notice would stand as it was.

On 13^th December 2024, the Respondent wrote to the Applicant, following receipt of the Substituted Decision Notice, to inform him that his request has been considered afresh. The letter went on to explain that in relation to his request for ‘A copy of the “full review” of the regulatory approach of the site’, that no formally written report existed, and that “the only written findings were those sent to [him] as part of this Complaint response.”. In relation to the second of the Applicant’s requests for ‘A copy of all the plant audits and inspections’, the Respondent provided some information about its role in regulating the waste plant concerned, reiterated what it had provided previously, provided two variations of the permit for the waste plant dated 2022 and 2023, and a Compliance Assessment Report form from 2024. However, the Respondent sought further clarification about what exactly was being sought in this particular request and invited the Applicant to respond by 18^th December 2024. In relation to the third part of the Applicant’s request, namely ‘A copy of the official email trail confirmation from [named individuals]’, the Respondent re-sent the emails it had originally sent to the Applicant on 25^th August 2023. The Respondent explained that the recipients of those emails “did not reply to the emails at the time and there has been no reply to date.”.

In effect, the Respondent’s fresh response was to ask for further information from the Appellant in relation to the second part of his request, and to confirm that it held no further information in relation to parts 1 and 3 of the request.

Following that fresh response being received, the Applicant wrote to the Tribunal on the same date stating as follows:

“As a direct result of not taking the appropriate timely action to alter the SDN

DCIS have confirmed in writing + attachments it’s contempt of court

Please read yet another unless [sic.] response as they have failed to liaise with me on the subject matter.

Relevant action needs to be taken by your good self in order to correct these failings

This Branch of the EA needs to be contacted by you to inform them of their contempt

As they have not supplied the relevant information.”

The Applicant’s email continued by referring to his previous email of 6^th December 2024 and stating “Please confirm ASAP that the corrections and omissions listed above [i.e. in the email of 6^th December 2024] have been made to the DN as requested. Please provide the revised copy of the SDN. As a very urgent response is requested.”. This email had followed a further email sent by the Applicant to the Tribunal on 11^th December 2024, asking District Judge Watkin to reconsider her decision not to make any of his proposed changes.

The Applicant replied to the Respondent by email on 13^th December 2024, having sent the above email to the Tribunal earlier that day, stating that the information that it had supplied on 13^th December 2024 “does not relate to the requested information.”, and that the latest response “can be categorised as a contempt of court”. The Appellant suggested that the Respondent should “Please read the original SDN in order not to repeat the same mistakes. Please supply the relevant specific technical information as documented in my email Dated 06/12/2024 to judge Watkin.”. The emails which the Applicant had sent for the attention of District Judge Watkin on 6^th and 13^th December 2024 were included within the body of this emailed response.

On 20^th December 2024, following receipt of the Appellant’s email to the Tribunal, the Respondent wrote to the parties and the Tribunal by email, confirming that it considered that it had “complied with its obligations in relation to the ruling of the SDN”, and stating that it had “reconsidered the [Applicant’s] request for further information and wrote to the [Applicant] on 13 December 2024”. A copy of the Respondent’s letter of 13^th December 2024 was attached to the email.

On 6^th January 2025, the Respondent wrote to the Applicant to state “In the absence of your clarification following our advice and assistance of 13 December 2024, we are refusing point 2 of your request under EIR 12(4)(c).”.

On 14^th January 2025, the Applicant filed an application to certify a contempt to the Upper Tribunal, stating that the information that he was seeking had not been supplied by 6^th January 2025 (i.e. within 35 days of the SDN being served) as required.

Regulation 18(1) of the Environmental Information Regulations (“EIR”) provides that the enforcement powers set out under the Freedom of Information Act 2000 (“FOIA”) apply for the purposes of the EIR as they apply for FOIA.

Section 61(3) and 61(4) FOIA provide that the First-tier Tribunal may certify an offence to the Upper Tribunal where –

Section 61(5) FOIA provides that where an offence is certified under subsection (4), the Upper Tribunal may (a) inquire into the matter, and (b) deal with the person charged with the offence in any manner in which it could deal with the person if the offence had been committed in relation to the Upper Tribunal.

Under Rule 7A(2) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, an application to certify an offence to the Upper Tribunal “must be made in writing and must be sent or delivered to the Tribunal so that it is received no later than 28 days after the relevant act or omissions (as the case may be) first occurs.”. Rule 7A(3) provides that an application must include –

The standard of proof to be applied is the criminal standard of beyond reasonable doubt. In other words, the Tribunal must be satisfied so that it is sure of any fact before finding it proved. This reflects the serious nature and potential consequences of allegations of contempt of court.

In Moss v Royal Borough of Kingston-upon-Thames and the Information Commissioner [2023] EWCA Civ 1438, the Court of Appeal considered the test to be applied by the First-tier Tribunal when deciding whether to certify an offence to the High Court (now the Upper Tribunal), and determined that there was a two-stage test [32-52], which is as follows:

The Court of Appeal gave further guidance at [44] as to how the First-tier Tribunal should approach this exercise, which was as follows:

“In deciding whether an act or omission is something which would be capable by its nature of constituting a contempt, the FTT is not intended to undertake a detailed analysis of the law relating to contempt, nor the application of the law of contempt to the facts. Rather the FTT is considering simply whether the act or omission would be capable of constituting a contempt. In this context, the acts or omissions are ones involving breach of rules, directions or orders of the FTT governing the conduct of an appeal. It should be relatively straightforward in most cases to determine whether the act or omission (i.e. a breach of a rule, direction or order) is by its nature such as would be capable of constituting contempt. In the present case, for example, the omission (admitted by Kingston) was the failure to comply with an order of the FTT. Such an omission, by its nature, would be capable of constituting a contempt. The FTT was not required to deal with the questions of whether service of the order on Kingston as a party was required for the omission to be capable of constituting a contempt or whether notice of the order was sufficient for those purposes. Nor was it necessary for the FTT to determine whether or not individuals within Kingston had the mens rea necessary for the omission to amount to a contempt by Kingston. Those factual matters, and in particular, the final determination of those matters were for the High Court (now the Upper Tribunal).”

In Penny Bence v Cornwall Council [2025] UKUT 420 (AAC), Mrs Justice Williams DBE, Chamber President of the Upper Tribunal (Administrative Appeals Chamber)) at [94] confirmed that although the decision in Moss considered the position before the amendments to section 61 FOIA were brought in by the Data Protection Act 2018, when the exercise of the First-tier Tribunal’s certification power led to transfer of the case to the High Court (rather than the Upper Tribunal), “There is no doubt that Lewis LJ’s careful and detailed analysis (a paragraphs 35-52) applies equally to the current power to certify the contempt for transfer to the Upper tribunal. As I have noted the legislative powers are materially the same and during his discussion of this issue, Lewis LJ made multiple references to the same position applying under the new section 61 FOIA.”.

In Navigator Equities Limited v Deripaska [2021] EWCA Civ 1799 the Court of Appeal set out a helpful summary of general propositions of law in relation to civil contempts at [81], which it considered to be “well-established”:

The Applicant’s submitted GRC4 form of 14^th January 2025 indicated a preference for the application to be determined without a hearing, and in case management directions of 28^th January 2025, District Judge Watkins required that any application for the matter to be determined at an oral hearing was to be submitted by 4pm on 28^th February 2025. Although an application for an extension of time was subsequently submitted by the Respondent on 14^th March 2025 in relation to its Response to the certification application, the Tribunal did not receive any application for the matter to be determined at an oral hearing within the required period or at any time thereafter. I am however satisfied that I can properly determine the issues without a hearing, pursuant to Rule 32(1) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

I have been provided with a 304-page OPEN Hearing Bundle and a 241-page ‘Authorities and Caselaw’ Bundle. Additionally, I have been provided with a 30-page CLOSED bundle. I have read and considered all of these documents, including the CLOSED bundle and the application for a Rule 14 Order, which the Respondent states has been provided to the Tribunal to evidence the breadth of searches and the actions carried out as part of the process of responding to this application for certification. I note that 10 pages of this CLOSED bundle, namely the Respondent’s written response to the present application for certification, are contained within the 304-page OPEN Bundle at pages A188 to A197, and the Respondent does not seek to restrict the Applicant’s access to this information. The application is therefore advanced in respect of the remaining 20 pages of the CLOSED bundle. Having considered the application and the CLOSED bundle, I am satisfied that disclosing the material contained within the CLOSED bundle would disclose information that is not within the scope of the Applicant’s request or would otherwise refer to the information that is not within the scope of the request. I therefore make an order under Rule 14(6) that the 20 pages of the CLOSED bundle which are not disclosed in the OPEN bundle, and the Rule 14 application, will be held by the Tribunal on the basis that it will not be disclosed to the Applicant or any other person.

The issues for the Tribunal to determine in this application are firstly, whether the Respondent is guilty of an act or omission which is capable, by its nature, of constituting a contempt, and secondly, if the answer to that question is in the affirmative, the Tribunal will go on to consider whether to exercise its discretion to certify and send the matter to the Upper Tribunal to determine.

The application was sent by email on 14^th January 2025. That email included further detail and submissions in relation to the application. Further submissions have been made in other correspondence received from the Applicant, which I do not set out in detail, but a summary of his submissions is as follows:

The following submissions are advanced by the Respondent in relation to the certification application:

It is important to note that FOIA deals only with any recorded information which a public authority holds. This may be in either hard copy or in electronic format, but FOIA does not place any obligation on a public authority to create new information to respond to a request for information.

The Respondent’s compliance with any Act, Regulation or scheme in respect of the waste plant forming the subject matter of the Applicant’s information request is not a matter for this Tribunal to determine. The only issues to be determined are in relation to the certification application.

It is perhaps unfortunate that the SDN (as contained within the Tribunal’s written decision on appeal of 2^nd December 2024) did not specifically set out that the Respondent was to read its terms alongside paragraphs 29 to 37 of the written decision. This would have made it very plain to the Respondent how it was to approach the exercise that it had been ordered to carry out by the SDN, and it would, perhaps, have avoided the Respondent failing to give effect to paragraph 32 of the Tribunal’s decision within the required 35 days. Nevertheless, it is of course incumbent upon any party in proceedings to read any written judgment or decision that may be provided, not least because it may shed light on why the court or tribunal came to the conclusions that it did, and in this instance, the first term of the SDN referred specifically to “the findings made by the Tribunal”. In my judgment, this imported a need for the Respondent to have regard to the tribunal’s findings when seeking to adhere to the terms of the SDN in providing its fresh response. I do not therefore consider that the terms of the order were in any way unclear or ambiguous, and despite the Respondent’s evidence suggesting that the Applicant’s email of 13^th December was “challenging to understand”, the Applicant’s emails of 6^th and 13^th December 2024 to the Tribunal, which had been copied into the first part of this email, were essentially a copying and pasting from the Tribunal’s written decision of 2^nd December 2024. Specifically, it referred to paragraphs 30-36 of that written decision, which is where most of the Tribunal’s findings had been set out in relation to the three parts of the Applicant’s information request. The Respondent should therefore have already been aware of the findings of the Tribunal as contained within those paragraphs of the appeal decision. However, it is correct to state that the format and manner in which this email from the Applicant was written was unhelpful. The Applicant’s reply to the Respondent was sandwiched between other copied and forwarded emails, and at first glance, I have no doubt that it would have been difficult to decipher any message.

The Respondent provided its fresh response to the Applicant on 13^th December 2024 in relation to parts 1 and 3 of his information request, and it asked for further information in relation to part 2, namely ‘Acopy of all the plant audits and inspections’. The Respondent accepts that the searches made at this point, and indeed by 6^th January 2025, which is the point at which its final letter was sent to the Applicant, did not give effect to paragraph 32 of the decision and the definition contained therein in respect of part 1 (A copy of the “Full review” of the regulatory approach of the site’). However, this was said to be an oversight, and having subsequently carried out these searches, no further recorded information within scope of the request has been identified, and as such, it is submitted by the Respondent that any breach is therefore of a ‘technical’ nature. I am satisfied, having read the witness statements and the explanation provided, that this was not a wilful or intentional breach, though the failure to comply properly with terms 1 and 2 of the SDN is an omission which I consider to be capable of constituting a contempt. Nevertheless, having regard to the general propositions of law identified in Navigator Equities Limited v Deripaska, I am satisfied that this was not a serious breach and is of a purely technical nature, and I consider that it would be disproportionate to exercise my discretion to certify this matter to the Upper Tribunal. I therefore decline to do so in respect of this aspect of the application.

In respect of part 2 of the requested information (‘Acopy of all the plant audits and inspections’), the Respondent sought clarification from the Applicant, which it did not consider was forthcoming by the date it had provided for (18^th December 2024), and it therefore considered that it had complied with its obligations, as evidenced by the email to the Tribunal of 20^th December 2024. This does not appear to me to be an attempt to mislead the Tribunal, but instead confirmation that it held a genuine belief that it had complied with the order in respect of part 2. Nevertheless, upon receipt of the certification application, the Respondent carried out further searches, applying the Applicant’s identified criteria, but no further information within scope of the request was identified as part of that process. I am nonetheless satisfied that the Respondent has complied with the terms of the SDN in relation to this part of the request and that there has not been an act or omission which is capable of constituting a contempt.

In relation to part 3 of the request (A copy of the official e-mail trail confirmation from [named individuals]), the Respondent did not address paragraphs 35 to 37 of the appeal decision in its letter of 13^th December 2024, simply confirming that the recipients of the emails “did not reply to these emails and there has been no reply to date.”. It did not comment at that time “on whether emails were forwarded either internally or otherwise” (para.36 of appeal decision). However, following further searches being carried out in March 2025, no further information was identified which came within the scope of this part of the request. Whilst the failure to have carried out the appropriate searches within the required 35 days may be an omission capable of constituting a contempt, the nature of this omission, being an oversight, and the fact that no further information was identified when further searches were carried out leads me to conclude that this was a technical, rather than serious breach. I therefore decline to exercise my discretion to certify this matter to the Upper Tribunal.

The application is refused.