Appeal number: EA/2020/0168/GDPR/V
FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
(INFORMATION RIGHTS)
DANIEL OSULA Applicant
- and -
INFORMATION COMMISSIONER Respondent
Before:
JUDGE MOIRA MACMILLAN
Appearances:
The Applicant represented himself.
The Respondent was not represented.
Determined at a remote hearing via video on 17 July 2020
DECISION
1. The Application is refused.
2.
MODE OF HEARING
3. The proceedings were held by video. The Applicant joined remotely. The
Tribunal was satisfied that it was fair and just to conduct the hearing in this way.
4. The hearing was conducted by a Judge, sitting alone. The Tribunal was satisfied
that it was appropriate to conduct the hearing in this way.
5. The Tribunal directed that the proceedings would be conducted in private in
accordance with rule 35(2) of the Chamber’s Procedure Rules1. A recording of the
proceedings is available on application.
6. The Tribunal considered an agreed open bundle of evidence comprising pages 1
to 38.
REASONS
Background to the Application
7. The Application relates to a complaint made by the Applicant to the Respondent
on 17 April 2020. The complaint relates to the Metropolitan Police Service (‘MPS’)).
The chronology of events is as follows:
(a) 2 July 2019: The Applicant makes a subject access request (‘SAR’)
to the MPS;
(b) 26 July 2019: The Applicant’s wife dies.
(c) 22 August 2019: The MPS sends the Applicant a holding response to
his request.
(d) 17 April 2020: The Applicant complains to the Respondent about the
MPS’s lack of a response to his SAR.
(e) 23 April 2020: The Respondent informs the Applicant that she does
not intend to consider his complaint as too much time has passed since he
received a response from the MPS.
(f) 1 May 2020: The Applicant applies to the Tribunal for an Order under
s. 166 of the Data Protection Act 2018 (‘the DPA’).
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https://www.gov.uk/government/publications/general-regulatory-chamber-tribunal-
procedure-rules
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(g) 26 May 2020: The Respondent applies for the Application to be
struck out under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal)
(General Regulatory Chamber) Rules 2009, as amended.
(h) 9 June 2020: The Tribunal refuses to strike out the case.
(i) 16 June 2020: The Respondent reviews the Applicant’s complaint and
decides to consider it further. She requests more information from the
Applicant.
The Law
8. The Applicant’s right of application is contained in s. 166 DPA:
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
(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).
9. The reference in s. 166(4) to s. 165(5) means that the “appropriate steps” which
must be taken by the Respondent includes investigating the subject matter of the
complaint “to the extent appropriate” and keeping the complainant updated as to the
progress of inquiries. The extent to which it is appropriate to investigate any complaint
is a matter for the Respondent, as regulator, to determine.
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10. S.166, when read together with s. 165, requires the Respondent to (i) consider a
complaint once made, and (ii) provide the person who made the complaint with a
response, both within 3 months. Thereafter, if the Respondent has not sent a final
response to the complainant, she must update them on the progress of her consideration
of their complaint at least every 3 months.
11. This requirement is reflected in the Orders available to the Tribunal under s.
166(2). The Tribunal can make an Order requiring the Respondent to investigate or
conclude an investigation of a complaint (the ‘appropriate steps’ referred to in s.
166(2)(a)), or to provide the complainant with an update (s. 166(2)(b)).
The Evidence
12. There is no dispute between the parties as to the facts of this case, which are as
set out above.
Submissions
13. The Applicant has explained that his complaint to the Respondent was delayed
by the after effects of his wife’s death. He submits that the ICO made an error in not
finding out why his complaint was made late. He describes the outcomes he is seeking
from this Application as an investigation of his complaint by the Respondent and an
award of compensation for any violation of his personal data rights.
14. At the date of hearing, the Applicant was unaware that the Respondent had
decided to investigate his complaint further. The Respondent’s submissions were read
to the Applicant and a copy was sent by email at the conclusion of the hearing.
15. The Respondent’s view is that she has responded to the complaint as required
under the DPA. However, on review, she has decided to investigate the Applicant’s
complaint further.
Conclusion
16. I note that, in response to this Application, the Respondent has reanimated her
investigation of the Applicant’s complaint and is seeking further information from him.
17. I have considered whether in these circumstances there is any Order for the
Tribunal to make. I have concluded that there is not and that, providing the Respondent
takes steps to inform the Applicant of the progress of his complaint, there will continue
to be no requirement for an Order to be made pursuant to s. 166(2).
18. The Application for an Order is therefore refused.
(Signed) Date: 17 July 2020
Judge Moira Macmillan Date Promulgated: 20 July 2020
© CROWN COPYRIGHT 2020
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