John Mitchell v Environment Agency: tribunal refuses to certify contempt over information request delay

The First-tier Tribunal (General Regulatory Chamber) has refused an application to certify the Environment Agency for contempt of court, finding that delays in complying with an earlier disclosure order amounted to technical rather than wilful breaches.

In John Mitchell v The Environment Agency [2026] UKFTT 1118 (GRC), Judge Armstrong-Holmes considered an application brought by John Mitchell under section 61 of the Freedom of Information Act 2000, following the Environment Agency's alleged failure to comply with a Substituted Decision Notice issued in December 2024 concerning his information request about an energy-from-waste plant.

The underlying request, made in July 2023, sought a full review of the regulatory approach to the site, copies of plant audits and inspections, and confirmation of an email trail involving named individuals. Having initially been told by the Information Commissioner that the Agency held no further information within scope, Mr Mitchell appealed successfully, with the tribunal in December 2024 finding that his request had been broader than the Agency had understood and ordering it to issue a fresh response within 35 days.

The Agency responded within the deadline on the first and third elements of the request, but sought clarification from Mr Mitchell on the second, relating to plant audits and inspections. Mr Mitchell contended that the Agency's fresh response failed to properly engage with the tribunal's earlier findings and that its continued failure to supply the technical information he sought amounted to contempt. The Agency accepted that its searches in relation to part of the request had not been carried out within the 35-day period, attributing this to human error, but maintained that subsequent searches had identified no further information falling within scope.

Applying the two-stage test set out by the Court of Appeal in Moss v Royal Borough of Kingston-upon-Thames and the Information Commissioner, Judge Armstrong-Holmes first considered whether the Agency's conduct was capable, by its nature, of constituting a contempt. He found that the failure to carry out the required searches within the 35-day period in relation to two elements of the request was capable of amounting to a contempt, notwithstanding the Agency's explanation that this was an oversight.

However, applying the second limb of the Moss test and drawing on the general principles concerning civil contempt set out in Navigator Equities Limited v Deripaska, the judge concluded that the breaches were not serious and did not warrant certification to the Upper Tribunal. He noted that no additional documents falling within scope of the request had ultimately been identified once the Agency carried out further searches, and accepted evidence that the delay had not been wilful or intentional. In relation to the request for plant audits and inspections, the judge found that the Agency had reasonably sought clarification from Mr Mitchell and had not breached the terms of the order at all.

The judge observed that the Substituted Decision Notice might have been clearer had it expressly cross-referred to the tribunal's earlier findings, but held that this did not render its terms ambiguous, given that the notice specifically incorporated those findings. He also noted that correspondence from Mr Mitchell to the tribunal, although difficult to follow in places, had substantially reproduced the relevant paragraphs of the earlier decision and ought to have alerted the Agency to what was required.

The application for certification was refused in respect of all three elements of the original information request.