Case Reference: EA/2021/0348
First-tier Tribunal
General Regulatory Chamber
Information Rights
Determined on the papers: 15 September 2022
Decision given on: 28 September 2022
Before
JUDGE O’CONNOR CP
Between
BARBARA ROGERS
Applicant
and
INFORMATION COMMISSIONER
Respondent
DECISION
These proceedings are struck out pursuant to rule 8(3)(c) of the Tribunal
Procedure (First- tier Tribunal) (General Regulatory Chamber) Rules 2009.
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REASONS
Introduction
1. Although the applicant has requested that she would “like a court on it”, for which
I read she would like an oral hearing in relation to the instant matter, I have
considered this matter on the papers having concluded that it does not defeat the
interests of justice to do so. Both parties have had ample opportunity to make
written submissions in support of their respective positions and they have each
taken that opportunity. Pursuant to rule 32(3) of the Tribunal Procedure (First-tier
Tribunal) (General Regulatory Chamber) Rules 2009 (“the 2009 Rules”), I have a
discretion to dispose of proceedings under rule 8 of those Rules without a hearing.
2. By way of a Notice of Application received by the Tribunal on 23 November 2021,
the applicant states that she believes that her “sensitive data…has been infringed” as
have her human rights (in particular, the rights encompassed in ECHR articles 8
and 10), because, amongst other things, her “correspondence [is] being spied on”. The
applicant seeks “redress, possible compensation, the right to go to court to address it, and
a re-furnishing of a more favourable decision …”.
3. The appellant states that she seeks for these issues to be considered by the Tribunal
pursuant to section 166 of the Data Protection Act 2018 (“2018 Act”).
Legal Background
4. Article 77(1) of the GDPR gives every data subject the right to complain to a
supervisory authority (in the domestic context, the Information Commissioner) if
they consider that the processing of their personal data infringes their GDPR rights.
The relevant provisions of section 165 of the 2018 Act accordingly provide as
follows:
“165 Complaints by data subjects
(1) Articles 57(1)(f) and (2) and 77 of the GDPR (data subject's right to
lodge a complaint) confer rights on data subjects to complain to the
Commissioner if the data subject considers that, in connection with
personal data relating to him or her, there is an infringement of the
GDPR.
(2) A data subject may make a complaint to the Commissioner if the data
subject considers that, in connection with personal data relating to him
or her, there is an infringement of Part 3 or 4 of this Act.
(3) The Commissioner must facilitate the making of complaints under
subsection (2) by taking steps such as providing a complaint form which
can be completed electronically and by other means.
(4) If the Commissioner receives a complaint under subsection (2), the
Commissioner must—
(a) take appropriate steps to respond to the complaint,
(b) inform the complainant of the outcome of the complaint,
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(c) inform the complainant of the rights under section 166, and
(d) if asked to do so by the complainant, provide the complainant with
further information about how to pursue the complaint.
(5) The reference in subsection (4)(a) to taking appropriate steps in
response to a complaint includes—
(a) investigating the subject matter of the complaint, to the extent
appropriate, and
(b) informing the complainant about progress on the complaint,
including about whether further investigation or co-ordination with
another supervisory authority or foreign designated authority is
necessary.”
5. Section 166 of the 2018 Act reads:
“166 Orders to progress complaints
(1) This section applies where, after a data subject makes a complaint
under section 165 or Article 77 of the UK 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).”
Factual Background
6. The underlying factual matrix is accurately set out at [15] to [17] of the Information
Commissioner’s Response, dated 3 March 2022, in the following terms:
“15. On 25 May 2021 the Applicant copied the Commissioner into an email
sent to various organisations raising a number of human rights concerns.
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The Applicant also provided an annotated copy of a letter she had
received from the Home Office dated 19 May 2021.
16. This complaint was allocated case reference IC-109492-S8H7.
17. On 8 June 2021 an ICO case officer wrote to the Applicant. The case officer
confirmed that, amongst others, discrimination, human rights matters
and sexual harassment or abuse were matters that fell outside the remit
of the ICO. The case officer advised the Applicant to complete a
complaint form if she wished to raise a data protection complain. The
case officer confirmed that any further correspondence on matters that fall
outside the remit of the ICO would not be responded to.”
The proceedings so far
7. Within the Response the Information Commissioner submits that the applicant has
not made a complaint under section 165 of the 2018 Act to the Commissioner
because the complaint that has been made does not concern the infringement of
data protection legislation in respect of the processing of personal data. The
Commissioner requests that the application to the Tribunal be struck out as having
no reasonable prospects of success.
8. In a decision of 1 September 2022, the Tribunal’s Registrar, exercising his delegated
judicial powers, struck out the applicant’s application for the reasons identified in
the Commissioner’s Response.
9. By way of an email of 5 September 2022, and pursuant to rule 4(3) of the 2009
Rules, the applicant requests that a judge consider the matter afresh, and provides
the following additional submissions:
“I do not like the decision to strike out my application, and I have
commented in May of this year 2022, and was asked for no further
comment than that. Have I been asked recently over further application
when I've sent indeed enough to yourselves and also the GRC as well,
and cheekily asked to send you information when you should be
checking ICO files. Judge 154890598 also past Judge reference also put
895493 Judge Refernce seek me in the V. I have been your secret judge I
want these files closed noit. Lucy Punch Heiress, house of Antrimm and
Custodial Lord and also your Meiter. The ICO should be punished by
hjer Majesty the Queen and I am the true Queen of the Ocramas and
Princess Crown of Himalajas and Himalayan Queen or Princess Queen
when I was little. I am Baube. Barbara Antrimm Batch, Lady Cogan
Coogan (Ex Mrs) Lady Lord Batch Kingdom Moore Batch Antrimm
Cogan Coogan, I am the one who funds our Targeted Individual and
you have egressed me in the law, I noiw wish to fight it under court
case, because I have not seen your latest where you have not sent other
emails unless I check. I have also allowed you to know about papers of
medicine, which I find something you should be thankful for as you
have forgotten I am from a family of batch eh? Barbara Roberts - Spy for
our country and Barbara Rogers (Queen of the Ocramas Daughter and
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also King of Nochte wife (ex Costima) Queen of Nuchte and also Queen
of Nachte and ex costima of King (which also a Dymas More - and a
Cumber Moore) Goto house of Cumberbatch Benus - he's my Lord
Chamcellor. I am duchess of Averham and also Duchess of Raiks
Morcham's. I am Duchess and shouldn't be treated this way. 159457890
-Court Case Known with House of Sudeley ( a d less for divorce of law
from me not) I will know I am angry with you.”
10. In an email of 8 September 2022 (and later covering letter of 10 September 2022),
the applicant added to her submissions as follows:
“I have 10-15 working days under Lister Law to reply to you and under
regular GRC laws. I want to appeal the decision in writing treat this as
letter post. Sec (5) (8) (9) + Lisster as it's me 159458590 Judge Number
with a double S in entirety. This is the right to appeal decisions again
and again until made available to a Duchess or Organ person if truth
and also the warring opposition side and also be made aware until
corrective - where I am the least happiest never 159950859 - 457812458
Duchess of Woe signalling. Judges number has been supplied. I have
also been Utrium Queen of the Himalajas (Utra Queen) in correction if
misunderstood, and my mother also, her Majesty Queen Elizabeth II is
to be told. Queen Elizabeth is my secret Godmother.
This is the postal letter and I have right to say this under laws with
covid conditions.
Letter or email to the GCQ or GHC or GRC General quarter of Quotient
with the other GCQ. Babus Law 839498. In general Law under 839495.
Re-appeal will be under 459 on the end (Law 839459) - if reappeal
needed. These are never laws seek guidance above.”
Conclusions
11. 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.”
12. The statutory scheme allows the Tribunal to address procedural failings by the
Commissioner in responding to a complaint made pursuant to section 165 of the
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2018 Act. A complaint under section 165 is a complaint made to the Commissioner
that there is an infringement of the GDPR in connection with personal data relating
to the complainant.
13. I have carefully considered, inter alia, the email sent by the applicant to the
Commissioner on 25 May 2021 as well as the email chain of which it formed a part
and the applicant’s written submissions to this Tribunal. Having done so, I cannot
identify any complaint to the Commissioner that there has been an infringement of
the GDPR in connection with personal data relating to the applicant. I conclude
that there is no reasonable prospect of the applicant demonstrating that the
contrary is the case. Consequently, I conclude that the Commissioner’s obligations
under section 165 of the 2018 Act have not been triggered and the Tribunal cannot
therefore intervene pursuant to section 166 of the 2018 Act.
14. If I am wrong about this, and the email chain does constitute a section 165
complaint, then the Commissioner has provided an outcome to that complaint by
way of a letter of the 8 June 2021. Contrary to many data subjects’ expectations,
section 166 does not provide a right of appeal against the substantive outcome of
the Commissioner’s investigation on its merits: Scranage v Information
Commissioner [2020] UKUT 196 (AAC). While the Tribunal does have the final
say in considering the appropriateness of investigative steps, the Tribunal will be
bound to take into consideration and give weight to the views of the Commissioner
as an expert regulator. In the sphere of complaints, the Commissioner has the
institutional competence and is in the best position to decide what investigations
he should undertake into any particular issue, and how he should conduct those
investigations. This will be informed not only by the nature of the complaint itself
but also by a range of other factors such as his own registry priorities, other
investigations in the same subject area and his judgement on how to deploy his
limited resources most effectively: Killock & Ors v Information Commissioner
[2021] UKUT 299. The obligation of the Commissioner is to take appropriate steps
to respond to the complaint.
15. The information set out by the Commissioner in the letter of 8 June provides a
response to the emails sent to the Commissioner by the applicant. If those emails
do constitute a relevant complaint, then in my conclusion the letter of 8 June
provides a response thereto required by the 2018 Act. There is no basis in the
present case for the Tribunal to interfere that can withstand the principles set out
in Killock.
16. For all these reasons, I conclude the applicant’s application to the First-tier Tribunal
has no prospect of success and must be dismissed and I consequently strike it out.
Signed Date: 16 September 2022
Judge O’Connor
Chamber President
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