Appeal number: EA/2019/0150/GDPR
FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
INFORMATION RIGHTS
ANGELA ROBINSON Applicant
- and -
THE INFORMATION COMMISSIONER Respondent
TRIBUNAL: JUDGE MOIRA MACMILLAN
SUZANNE COSGRAVE
Dr HENRY FITZHUGH
Determined on the papers, the Tribunal sitting in Chambers on 25 July 2019
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DECISION
1. The application is refused.
REASONS
2. The Applicant applied to the Tribunal for an Order to Progress her Complaint
under s. 166 of the Data Protection Act 2018 (“DPA 2018”).
3. In her Notice of Appeal form dated 24 April 2019, the Applicant relies on grounds
that the Information Commissioner had not fully completed her assessment of her
complaint against a data controller and is in breach of her statutory duties.
4. The Information Commissioner’s Response dated 21 May 2019 relies on grounds
of opposition that the Commissioner has responded appropriately to the Applicant’s
complaint so there no basis for making the Order sought.
5. 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 87 pages, including submissions made by
both parties.
The Law
6. 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) 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
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(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).
7. The “appropriate steps” which must be taken by the Information Commissioner
is further defined by s. 165 (5) DPA 2018 as investigating the subject matter of the
complaint “to the extent appropriate” and keeping the complainant updated as to the
progress of inquiries.
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 Information Commissioner on 1 October 2018 about
Solihull Community Housing. The Commissioner acknowledged receipt on 16 October
2018 and provided a substantive response on 12 December 2018. The Commissioner
made various inquiries of the data controller and, having initially misunderstood the
nature of the complaint, informed the Applicant of her conclusions on 12 February
2019. The Applicant subsequently raised additional concerns about the data controller’s
activities.
Submissions
10. The Applicant clearly disagrees with the Information Commissioner’s conclusion
and submits that she should take further action against Solihull Community Housing.
11. The Commissioner submits that she has taken appropriate steps to respond to the
Applicant’s complaint and that, while the Applicant 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.
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Conclusion
12. We conclude that the Information Commissioner took appropriate steps to
respond to the Applicant’s complaint. We are not persuaded that there has been a failure
on the Commissioner’s part 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)
MOIRA MACMILLAN DATE: 21 August 2019
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