John Mitchell v The Information Commissioner

This is an appeal against a decision of the Information Commissioner (the Commissioner) under the Freedom of Information Act 2000 (FOIA) number IC-301250-COP9 dated 2 December 20-24.

The appellant in this case made a six-part information request to Devon and Cornwall Police (the police) on 29 March 2023.

Part one sought ‘a senior management structure chart for Devon & Cornwall Police’. Part two sought ‘a copy of the minutes or notes of the meeting on the 08/03/2023 with the head of crime’. Part three sought ‘a copy of the summary email to the head of crime’. Part four sought ‘a copy of all the information sent to the head of crime to date regarding these very serious matters’. Part five sought ‘a copy of all the inquiries and responses Devon & Cornwall Police have made to date regarding these very serious matters’. Part six stated ‘This is a SAR request for all information requests I have made from the 11/07/2022 to the present day (28/10/2023)’.

It is important to note that these requests were prefaced by the following in the appellant’s email:-

The police replied on 26 October 2023 treating part one as a repeated request and stating no information was held for parts two to five. The appellant sought internal review on 28 October 2023, specifying particular interest in the management structure, section heads for CID and the coroner’s office, and the identity of Detective Chief Superintendent of Crime.

On 11 March 2024 the police maintained that part one had been answered previously and that no information is held for parts two to five. The appellant told the Commissioner that the provided senior management chart was outdated and did not identify specific leads and roles sought. The Commissioner scoped the case to parts one to five only and excluded part six as a subject access request.

The Commissioner cited sections 1 and 16 FOIA and the section 45 Code on clarifying ambiguous requests.

For part one, the force had first given a weblink and later a redacted chart at internal review in the earlier request. Given the appellant’s case that the chart lacked the information sought, the police should have sought clarification. For part two, the police said the meeting was on Microsoft Teams between a Superintendent and the Chief Superintendent. The Commissioner found the term ‘head of crime’ ambiguous and said the police should have clarified the request.

For parts three to five, the police had interpreted the request as limited to criminal investigations. The Commissioner found those parts did not have a single objective reading and that clarification should have been sought.

The Commissioner decided the police had failed its section 16(1) FOIA duty by not seeking clarification on parts one to five. The Commissioner ordered the police to seek clarification for parts one to five and then disclose the information or issue a section 17 FOIA-compliant refusal

The appellant submitted his appeal on 13 December 2024. He contended that the decision notice mischaracterised parts of his request for information as unclear, and that this characterisation is incorrect, since the request must be read in the context of the original subject heading of his email. He stated that this had been explained on numerous occasions and was evident from his email correspondence with the ICO investigator. He set out a number of subject headings and reproduced his request in full.

The appellant expressed the belief that the decision notice had been issued so as to further assist the police, and that it had not focused adequately on the original request. He submitted that the Commissioner was fully aware that a section 77 FOIA notice ought to have been issued by the criminal investigation team against the senior police officer concerned, in respect of the continuing unlawful withholding of information.

The appellant described this as a straightforward case concerning whether the police had deliberately and unlawfully withheld information in respect of each part of his request. He stated that throughout the investigation he had made clear that the request had been resubmitted on 9 August 2023, following the provision of further information to the police in connection with the initiation of other criminal investigations. Those investigations related to alleged fraud in respect of the Plymouth MVV incinerator site facility and to NHS England, which he alleged had deliberately falsified cancer statistics in order to conceal the serious adverse health impacts associated with that facility.

The appellant complained that the decision notice had afforded the police a further opportunity to provide what he characterised as an untruthful response. He asked that a judge, prior to the hearing, order the police to state what information is held and to release it. He further requested that the Tribunal order the police to provide the full contents of the investigation case file, so that an out-of-area force with no conflict of interest could conduct an investigation.

The appellant also reiterated his complaint that the Commissioner’s investigation team had neither issued a section 77 notice against the senior police officer nor issued a notice of contempt to the High Court.

The Commissioner issued a response dated 12 February 2025 which helpfully goes into some detail about the background of the request. This explains that the underlying focus of this appeal concerns MVV Environment Devonport Limited, which, according to its website, operates a highly modern and efficient energy-from-waste plant at North Yard, Devonport, Plymouth. This facility provides a waste treatment solution for the South West Devon Waste Partnership. It deals with waste from Plymouth, Devon and Torbay that is not recycled or composted, and generates electricity as well as usable heat in combined heat and power mode, thereby saving valuable fossil resources and reducing carbon dioxide output.

The Commissioner’s response states that the appellant lives in Plymouth and is of the view that the waste plant is responsible for air pollution which has had, and continues to have, a significant impact on the health and lives of Plymouth residents. In that context, the appellant has been in communication with the police. The Commissioner’s response sets out an email sent by the appellant to the police Head of CID asking for information about why the police would not open a police-led investigation into the unlawful killing of Plymouth residents linked to MVV.

On 19 January 2023, the Head of CID responded to the appellant, noting that the appellant had not agreed to the offer of a meeting with one of the police investigators, and stated that he would summarise his assessment of the email correspondence with the appellant to date and present it to the Detective Chief Superintendent, Head of Crime Department, for an overall decision.

On 2 March 2023, the Head of CID informed the appellant that he planned to meet with the Head of Crime on 8 March 2023. The appellant responded on the same day, requesting that all information be supplied to the Chief Superintendent.

On 28 March 2023, the Head of CID confirmed to the appellant that he had met with the Head of Crime on 8 March and would revert when he had a response. He stated that he had deliberately briefed the Head of Crime regarding the appellant’s questions and had sent him a summary email.

This led to the request made on 29 March 2023, when the appellant sent an email addressing a number of subjects relating to his concerns about MVV, asking questions about the role of the Detective Chief Superintendent and whether he was the Head of Crime, and setting out the requests which are the subject matter of this appeal. On that same day, the Head of CID confirmed that the Detective Chief Superintendent is the Head of Crime and that he had been sent a summary email which would include every piece of correspondence between the Head of CID and the appellant.

The police dealt with the request for information, and the appellant requested an internal review on 19 April 2023. He had been provided with a link to the senior management structure and noted that it was difficult to determine at a glance who was the Head of Devon and Cornwall Police and for which sections each officer was responsible.

On 27 July 2023, the Head of Crime wrote to the appellant to say that there would not be a criminal investigation into his allegations against MVV unless there was some evidence of a criminal offence having been committed. The appellant was urged to meet with an investigator to discuss his concerns.

On 9 August 2023, the appellant emailed the police to remind them of the scope of his information requests and set these out again.

On 22 October 2023, the police issued a refusal notice in the following terms:

This led to the request for an internal review on 28 October 2023 as set out above, in which the appellant pointed out that he had already requested an internal review in relation to part one; that he did not accept that there were no minutes in relation to part two; that the Head of CID had confirmed that a summary email had been sent, in relation to part three ; and that there had been no valid internal reviews in relation to parts four and five. He also noted that his subject access request in relation to part six remained outstanding.

The Commissioner explained that on 11 March 2024, the police provided a redacted force structure chart in response to part one. In response to parts two to five, the police said that all those requests sought specific documentation relating to a criminal investigation into deaths linked to the MVV incinerator in Plymouth. A discussion with the superintendent within the Criminal Investigation Department confirmed that no criminal investigation had been carried out; accordingly, the force’s earlier statement that no information was held in relation to such an investigation was correct, and the response provided had been accurate under FOIA.

That response led to the appellant complaining to the Commissioner on 12 March 2024 and to the issue of the Decision Notice on 2 December 2024, as summarised above.

Following on from the decision notice, the police contacted the appellant to comply with the steps in the decision notice. The communication stated that the police were unable to progress the request without clarification of what specific recorded information was required. The communication noted that the structure chart in relation to part one had been provided.

In relation to part two and the request for a copy of the minutes or notes of the meeting on 8 March 2023, the communication sought clarification that this was in fact the meeting for which the appellant was requesting notes or minutes.

In relation to part three, for a copy of the summary email to the head of crime, the communication asked what it was the appellant was seeking in relation to a summary and whether it was in relation to the meeting, potential criminal investigations into the MVV incinerator, or something different.

In relation to part four, the communication asked what the appellant was referring to when he mentioned very serious matters and asked for detail about the specific topics or issues he was asking about. In relation to part five, the communication again asked what very serious matters this request related to. The police also sought to re-draft the requests made, effectively referring to:

The Commissioner's response to the appeal first confirmed that the date of the request was 29 March 2023 rather than the later resubmission of the request on 9 August 2023. The Commissioner noted that the original request would not exclude information before 8 March 2023, which appeared to be the appellant's concern. The Commissioner further noted that the appellant was unable to raise section 77 FOIA issues in a FOIA appeal before this Tribunal, and also noted that the Tribunal would not have jurisdiction to deal with issues in relation to the appellant's subject access request.

The Commissioner then went on to consider whether the decision notice was correct to say that the police should have requested clarification of the remaining requests.

In relation to part two, the Commissioner now acknowledged that the request as made by the appellant was clear, as it sought minutes or notes created in connection with a meeting on 8 March 2023. The Commissioner said that his view now was that there was no section 16 FOIA duty on the police to seek to clarify this. However, the Commissioner also noted that the police, in correspondence to the Commissioner on 9 August 2024, had said that the attendee of the meeting confirmed that the meeting in question was held by Microsoft Teams and that it was a verbal briefing and not a formal meeting, meaning that minutes or notes were not created. Therefore, no paper or electronic records exist. The Commissioner concluded on the balance of probabilities that the police do not hold any recorded information in response to part two, and that no steps were required. The Commissioner invited the Tribunal to substitute the decision notice accordingly.

In relation to part three, the Commissioner noted that on 28 March 2023 the Head of CID confirmed to the appellant that he had verbally briefed the head of crime in relation to the appellant's questions and various email exchanges, and that the Head of CID had sent the head of crime a summary email. This was repeated in an email dated 29 March 2023. The Commissioner now concluded that the request was clear on its face and there was no requirement on the police under section 16 FOIA to seek to obtain further clarity, and the Commissioner invited the Tribunal to substitute the decision notice accordingly.

The Commissioner concluded that, on the balance of probabilities, the police did hold a copy of the summary email at the time of the request in March 2023, as it was referenced in the Head of CID’s emails dated the day before and the day of the material request. As such, the relevant step is that the police should either disclose the summary email or issue a refusal notice compliant with FOIA explaining the basis on which it cannot be disclosed. The Commissioner invited the Tribunal to substitute the decision notice accordingly.

In relation to parts four and five, the Commissioner made reference to the part of the requests which referred to 'these very serious matters'. The Commissioner noted that the matters were not specifically identified within the terms of the request itself. The Commissioner noted that the appellant argued that his requests were clear when read together with the subject heading of the email containing his requests. The Commissioner noted that the subject had potentially referred to several different matters, some of which would not even appear to relate to matters within the remit of the police. The Commissioner listed the matters in the appellant’s subject heading as follows:

The Commissioner said that he remained of the view that parts four and five were unclear and maintained the findings and steps in his decision notice.

There was an oral hearing in this matter, which the appellant attended by telephone at his request. The Commissioner informed the Tribunal that he would not be appearing at the hearing.

The appellant was anxious to emphasise the difficulties that had arisen in connection with this request and the delays that had occurred in the process. His principal submission before the Tribunal was that his requests had been clear and did not require the police to seek clarification; accordingly, in his submission, the decision notice — which required the police to seek clarification — was flawed.

The appellant recognised the limits of the Tribunal’s powers in this case in relation to the wider concerns he had about the police fulfilling their obligations under data protection and freedom of information legislation. He acknowledged, for example, that the Tribunal has no remit under section 77 FOIA, which concerns criminal offences under the freedom of information regime.

The Tribunal went through each of the requests with the appellant. In relation to part one, he accepted that he had received the organisational information sought. In relation to part two, concerning the minutes or notes of the meeting held on 8 March 2023, the appellant agreed with the Commissioner’s approach in the Response to the applicability of section 16 FOI, but raised the point that Teams meetings should, in his view, be recorded and transcribed by the police on a regular basis, and therefore the police would hold a record of the meeting. In relation to part three, he agreed with the Commissioner’s view, as expressed in the Response, that the request was clear and that the police on the balance of probabilities held the information, and he agreed that the Tribunal should proceed on that basis.

In relation to parts four and five, the appellant’s position was that, when read in the context of the information he had provided to the Head of CID — receipt of which had been acknowledged by email — and having regard to the subject headings he had included in his emails, it was clear to the police that his references to ‘these very serious matters’ related to the matters set out in the emails and attachments he had sent to the Head of CID. He was of the view that there was no need for him to provide the police with further clarification of his requests.

The appellant maintained that the Commissioner had been wrong to find that the police should have sought further clarification. He referred to the re-drafting of his requests by the police (see above) and noted specifically that the re-drafted version referred only to information and actions arising after 8 March 2023, whereas it was clear from the context of his requests that he had been referring to events and documents predating that date as well.

The appellant ended by reminding the Tribunal of the importance of the issues he was concerned with and about which he was trying to obtain further information from the police. The Tribunal acknowledged the wide-ranging nature of the concerns raised by the appellant.

Section 1 FOIA establishes the core right:

This duty applies unless an exemption is engaged.

Section 16(1) FOIA provides that public authorities must provide reasonable advice and assistance to applicants.

This is informed by the section 45 Code of Practice, including helping applicants frame requests, and seeking clarification where a request is genuinely unclear or too broad.

Pursuant to section 17 FOIA where a public authority wishes to withhold information it must issue a refusal notice stating the fact of refusal, the relevant exemption(s), and (where applicable) the public interest considerations.

Section 58 sets out the Tribunal’s core powers:

The central question for the Tribunal was whether the Commissioner’s decision notice was correct in finding that Devon & Cornwall Police were required to seek clarification of the appellant’s requests under section 16 FOIA, or whether the requests (and each of them) were sufficiently clear and required substantive responses.

The Tribunal considered the response of the Commissioner to each of the requests, both in the decision notice and as considered in the response to the appeal. The Tribunal reached the following conclusions and makes the following findings.

The Tribunal recognises the delay in providing the organisational chart requested by the appellant in relation to part one, but notes that the appellant now accepts that he is in receipt of it and the Tribunal makes no further comment about this.

In relation to part two, the Tribunal agrees with the response of the Commissioner that this request was clear and related to the meeting on 8 March 2023, and that it referred to a copy of the minutes or notes of that meeting. The Tribunal agrees with the Commissioner that a substituted decision notice should be issued in relation to this request, which recognises that no further clarification needed to be sought by the police in relation to this request.

However, the Tribunal notes one further matter about this request. As mentioned above, the appellant now knows that the meeting was held on Teams. The appellant believes that there would be a recording if not a transcript of that meeting. The Tribunal understands that meetings on Teams are not automatically recorded unless an organisation has enabled a facility which ensures that this happens. Although the Tribunal accepts the Commissioner’s conclusion that the police hold no ‘notes or minutes’ of the meeting on 8 March 2023, in the view of the Tribunal the police should also confirm, for completeness, to the appellant whether the meeting on Teams on that day was in fact recorded or not, and whether the recording (or transcript) is held by the police.

In relation to request three, again the Tribunal agrees with the Commissioner's approach in the response to the appeal, to the effect that the request was clearly for the summary email referred to in emails sent by the Head of CID on 28 and 29 March 2023, and that no further clarification needed to be requested by the police for this to be understood.

The Tribunal also agrees with the Commissioner that the specific reference to this summary email means that, on the balance of probabilities, it is likely to be held by the police, and that as such the police should now either disclose the summary email or issue a refusal notice compliant with FOIA explaining the basis on which it cannot be disclosed to the appellant. The Tribunal will issue a substituted decision notice to this effect.

In relation to parts four and five, the Tribunal does not agree with the conclusion reached by the Commissioner that the ‘very serious matters’ referred to in those requests are unclear so that the police are required to request further information about them pursuant to section 16 FOIA.

On the balance of probabilities the Tribunal finds that the appellant in these requests was making reference to the emails and enclosures that he had sent to the Head of CID and the matters raised therein. It is known that the preamble to the requests makes reference to the appellant's email trail and all the attachments sent by the appellant to date. It is further known that the Head of CID stated that he had made all of the information sent by the appellant available for the head of crime to review.

Thus it is clear that when the appellant sets out parts four and five, he is making reference not only to the list of matters at the start of his email which contains the requests, but also to the contents of the emails and attachments that he had sent to the Head of CID, which contained the serious matters to which he referred.

The Commissioner appears to rely in his Response on the fact that the list of issues referred to by the appellant contains matters, some of which would not even appear to relate to matters within the remit of the police. However, although this may be the case, it does not make the appellant's parts four and five unclear or requiring clarification. It may be that the police's response to some or even most of the matters referred to in the emails, attachments and the subject-heading is that no information is held, but that is not a reason to find that the requests are unclear such as to require clarification.

On that basis, in relation to parts four and five, we find that the Commissioner was wrong to find in the decision notice that the police should seek further clarification from the appellant pursuant to section 16 FOIA about what information he was seeking in those requests.

As it is our view that these requests do not require further clarification, the police should now respond to these requests setting out whether they hold the requested information or not, and if it is held, disclosing it to the appellant or issuing a refusal notice which explains the basis upon which the police say they are unable to disclose the information. We will issue a substituted decision notice to this effect.

In relation to the other aspects of the appellant's appeal, we say nothing about the operation of the section 77 FOIA process as we have no jurisdiction over this. Likewise, we say nothing about the appellant's subject access requests, as again we have no jurisdiction in relation to this issue.

The Tribunal allows the appeal and makes the substituted decision notice set out at the start of this decision.

A copy of this decision must be sent to Devon and Cornwall Police.

Devon and Cornwall Police authority must, within 35 calendar days of the date this decision becomes final, take the following steps:
  (a) confirm whether it holds the information specified for parts 3-5 of the request;
  (b) to the extent that information is held, communicate that information to the appellant;
  (c) alternatively, issue a refusal notice compliant with section 17 FOIA;

In relation to the meeting of 8 March 2023, Devon and Cornwall Police should confirm whether any recording or transcript was made and, if so, whether it is held.