Appeal number: EA/2018/0211/GDPR
FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
INFORMATION RIGHTS
DAVID ERIC PLATTS Applicant
- and -
THE INFORMATION COMMISSIONER Respondent
TRIBUNAL: JUDGE ALISON MCKENNA
SUZANNE COSGRAVE
ALISON LOWTON
Determined on the papers, the Tribunal sitting in Chambers on 24 January 2019
© CROWN COPYRIGHT 2019
DECISION
1. The application is refused.
REASONS
2. The Applicant applied to the Tribunal for an Order to Progress his Complaint under s.
166 of the Data Protection Act 2018 (“DPA 2018”).
3. In his Notice of Appeal form dated 1 October 2018, the Applicant relies on grounds that
the Commissioner had not fully completed her assessment and had failed to provide
information about the availability of an Order to progress his complaint.
4. The Information Commissioner’s Response dated 26 October 2018 is particularly
detailed, given that this is the first s. 166 application to reach final determination by this
Tribunal. The application is resisted on the basis that the Commissioner has responded
appropriately to the Applicant’s complaint so that there is no basis for making the Order
sought.
5. We are grateful to both parties for their helpful written submissions.
6. The parties and the Tribunal agreed that this matter was suitable for determination on
the papers in accordance with rule 32 of The Tribunal Procedure (First-tier Tribunal) (General
Regulatory Chamber) Rules 2009, as amended. The Tribunal considered an agreed open
bundle of evidence comprising 90 pages, including the submissions made by both parties.
The Law
7. Section 166 of the DPA 2018 creates a new right of application to the Tribunal as
follows:
Orders to progress complaints
(1) This section applies where, after a data subject makes a complaint under section
165 or Article 77 of the GDPR, the Commissioner—
(a) fails to take appropriate steps to respond to the complaint,
(b) fails to provide the complainant with information about progress on the complaint,
or of the outcome of the complaint, before the end of the period of 3 months beginning
when the Commissioner received the complaint, or
(c) if the Commissioner's consideration of the complaint is not concluded during that
period, fails to provide the complainant with such information during a subsequent
period of 3 months.
2
(2) The Tribunal may, on an application by the data subject, make an order requiring
the Commissioner—
(a) to take appropriate steps to respond to the complaint, or
(b) to inform the complainant of progress on the complaint, or of the outcome of the
complaint, within a period specified in the order.
(3) An order under subsection (2)(a) may require the Commissioner—
(a) to take steps specified in the order;
(b) to conclude an investigation, or take a specified step, within a period specified in
the order.
(4) Section 165(5) applies for the purposes of subsections (1)(a) and (2)(a) as it applies
for the purposes of section 165(4)(a).
8. The powers of the Tribunal in determining a s. 166 application are limited to those set
out in s. 166 (2). In Order to exercise them, the Tribunal must be satisfied that the
Commissioner has failed to progress a complaint made to her under s. 165 DPA 2018. The
jurisdiction to make an Order is limited to circumstances in which there has been a failure of
the type set out in s. 166 (1) (a), (b) and (c).
The Evidence
9. We have considered carefully the agreed bundle of evidence. This shows that the
Applicant made a complaint to the Commissioner on 9 August 2018. The Commissioner
wrote to the Applicant on 7 September 2018 to clarify the terms of his complaint. She then
made inquiries of the data controller and wrote to the Applicant on 1 October 2018 to inform
him that in her view the data controller had complied with its legal obligations. The
application for an Order was made the same day.
Submissions
10. The Applicant clearly disagrees with the Commissioner’s conclusion, although it is not
entirely clear what else he expects her to do. He submits that her inquiries should have
considered additional issues which he had raised in correspondence.
11. The Commissioner submits that she took appropriate steps to respond to the Applicant’s
complaint and that, whilst he disagrees with the outcome, this is not a proper basis for the
Tribunal to make an Order under s. 166 DPA 2018 because the Tribunal’s jurisdiction is
limited to procedural failings and is not intended to serve as an appeal against outcome.
3
Conclusion
12. We conclude that the Information Commissioner took appropriate steps to respond to
the Applicant’s complaint in a timely manner. We are not persuaded that she failed to address
the matters in s. 166 (1) (a) (b) and (c).
13. We understand that the Applicant is not satisfied with the Commissioner’s conclusions,
but we agree with the Commissioner that s. 166 DPA 2018 does not provide a right of appeal
against the substantive outcome of an investigation into a complaint under s. 165 DPA 2018.
14. We conclude that there is no basis for making an Order under s. 166 (2) DPA 2018 on
the facts of this case.
15. For these reasons, the application is refused.
(Signed)
ALISON MCKENNA DATE: 27 February 2019
PROMULGATED: 5 March 2019
CHAMBER PRESIDENT
4