Appeal number: EA/2020/0220/GDPR/V
FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
(INFORMATION RIGHTS)
GORDON FORBES Applicant
- and -
THE INFORMATION COMMISSIONER Respondent
BEFORE: JUDGE MOIRA MACMILLAN
Appearances:
The Applicant represented himself.
The Respondent was represented by Mr Whiting
Determined at a remote hearing via video on 21 August 2020
© CROWN COPYRIGHT 2020
DECISION
1. The Application is struck out pursuant to rule 8(3)(c) of the Tribunal Procedure
(First-tier Tribunal) (General Regulatory Chamber) Rules 2009, as amended.
MODE OF HEARING
2. The proceedings were held by video. The Applicant and Respondent joined
remotely. The Tribunal was satisfied that it was fair and just to conduct the
hearing in this way.
3. The hearing was conducted by a Judge, sitting alone. The Tribunal was satisfied
that it was appropriate to conduct the hearing in this way.
4. The Tribunal considered an agreed open bundle of evidence comprising pages 1
to 29.
REASONS
Background
5. The Applicant has applied to the Tribunal for an Order under s. 166(2) of the
Data Protection Act 2018 (‘DPA’), to progress a complaint he made to the
Respondent about Miller Samuel Hill Brown LLP (‘MSHB’). The Applicant has
not provided a copy of his complaint but has provided a letter dated 6 July 2020
in which the Respondent sets out her determination of his complaint.
6. In his Notice of Appeal dated 8 July 2020, the Applicant relies on grounds that
the Respondent has failed to properly consider his complaint. He submits that
she wrongly relied on correspondence from MSHB to conclude that the
Applicant’s data rights had not been breached. The Applicant contends that the
Respondent has failed to understand the facts of his complaint.
7. The Respondent did not receive a copy of the Notice of Appeal but made oral
submissions at the hearing. She relies on grounds of opposition that she has
already responded to the Applicant’s complaint. She notes that the Applicant has
not requested an internal review of her decision. She reminds the Applicant that
he is able to do so and can bring proceedings against MSHB in the County Court
or High Court under s. 167 DPA.
8. The Respondent submits that it is not for this Tribunal to decide the extent to
which she must investigate a complaint made under s. 165 DPA and contends
that the Tribunal does not have jurisdiction to change the scope or outcome of
her investigation, or the conclusions that she has reached.
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Law
9. Section 166 of the DPA 2018 creates a 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 s.
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).
10. 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.
11. The limited nature of the Tribunals jurisdiction in this context has been
confirmed by the Upper Tribunal, most recently in Scranage v Information
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Commissioner [2020] UKUT 196 (AAC) where Upper Tribunal Judge Wikeley
observed at paragraph 6:
“.. there is a widespread misunderstanding about the reach of section 166.
Contrary to many data subjects’ expectations, it does not provide a right of
appeal against the substantive outcome of the Information Commissioner’s
investigation on its merits. Thus, section 166(1), which sets out the
circumstances in which an application can be made to the Tribunal, is
procedural rather than substantive in its focus. This is consistent with the terms
of Article 78(2) of the GDPR (see above). The prescribed circumstances are
where the Commissioner fails to take appropriate steps to respond to a
complaint, or fails to update the data subject on progress with the complaint or
the outcome of the complaint within three months after the submission of the
complaint, or any subsequent three month period in which the Commissioner is
still considering the complaint.”
12. Therefore 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
thereafter.
13. 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 if she has not done so (the
‘appropriate steps’ referred to in s. 166(2)(a)), or to provide the complainant
with an update (s. 166(2)(b)).
Striking out an application
14. The Upper Tribunal has also provided guidance on the approach to be taken by
this Tribunal when considering whether to strike out a case as having no
reasonable prospect of success. In HMRC v Fairford Group (in liquidation) and
Fairford Partnership Limited (in liquidation) [2014] UKUT 0329 (TCC), the
Upper Tribunal stated that:
“…an application to strike out in the FTT under rule 8 (3) (c) should be
considered in a similar way to an application under CPR 3.4 in civil
proceedings (whilst recognising that there is no equivalent jurisdiction in the
First-tier to summary judgement under Part 24). The Tribunal must consider
whether there is a realistic, as opposed to a fanciful (in the sense of it being
entirely without substance) prospect of succeeding on the issue at a full
hearing…The Tribunal must avoid conducting a “mini-trial”. As Lord Hope
observed in Three Rivers the strike out procedure is to deal with cases that are
not fit for a full hearing at all.”
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Evidence
15. I have considered the available evidence. This shows that the Applicant made a
complaint to the Respondent, although a copy of that complaint has not been
sent to the Tribunal. The Applicant has provided the supporting evidence he sent
to the Respondent.
16. The Respondent acknowledged receipt of the complaint and, having reviewed
the supporting evidence, on 6 July 2020 sent the Applicant a letter setting out
her final determination of his complaint.
Submissions
17. The Applicant submits that the Respondent has misunderstood a key aspect of
his complaint. He suggests she is asking him to prove the impossible, by
requiring him to show that correspondence sent by MSHB was not received. He
wishes the Respondent to further consider his complaint.
18. In oral submission the Applicant explained that he had not been aware that he
could request an internal review of the Respondent’s response to his complaint
and that he wished to pursue this.
19. The Respondent submits that the Applicant has already received everything the
Tribunal could Order pursuant to s. 166(2) and that, as a consequence, the
Application should be struck out as having no reasonable prospect of success.
Strike out
20. I have considered in accordance with HMRC v Fairford Group whether the
Applicant has put forward non-fanciful grounds in support of his Application.
When doing so I have considered the prevailing circumstances, rather than the
circumstances that existed at the date of this Application.
21. I note that the Respondent has already sent a final determination of the
Applicant’s complaint. Although the Applicant is unhappy with the outcome,
this Tribunal does not have jurisdiction to direct the Respondent to reconsider
the matter, or require her to carry out another investigation, or reach a different
outcome.
22. While the Respondent may not have considered every aspect of the Applicant’s
complaint, she has considered the subject matter of the complaint and has
provided a response.
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Conclusion
23. Having considered the submissions of both parties, I have concluded that there
is no basis upon which the Tribunal could make an Order under s. 166 (2) DPA.
24. The Application is therefore struck out as having no reasonable prospects of
success, pursuant to rule 8(3)(c) of the Tribunal Procedure Rules.
JUDGE MOIRA MACMILLAN
DATE: 21 August 2020
DATE PROMULGATED: 25 August 2020
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