Case Reference: FT-EA-2024-0199-GDPR
NCN [2024] UKFTT 00713 (GRC). Case Reference: FT-EA-2024-0199-GDPR
First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Before
JUDGE MOAN
Between
KEITH VERNON GELL
Applicant
And
THE INFORMATION COMMISSIONER
Respondent
Decision made on the papers.
Decision: The Applicant’s application received on 1st July 2024 to strike out the
application of the Applicant is granted. The appeal is struck out under Rule 8(2)(a) as an
application that cannot be made to this Tribunal and under Rule 8(3)(c) on the basis that
there is jo prospect of the application in being successful.
REASONS
1. The Appellant lodged a notice of appeal to the Tribunal dated 21 st May 2024.
The appeal form stated that the Appellant was appealing the decision of the
Information Commissioner because they refused to investigate alleged
breaches of data protection.
Case Reference: FT-EA-2024-0199-GDPR
2. It appears that the Appellant had made a complaint to the Respondent that
Eastbourne Borough Council had not retained information. The Respondent
concluded that the Council hand processed the data correctly.
3. The Appellant included a letter from the Information Commissioner
confirming that the Respondent had investigated the Appelant’s complaining
and then reviewed the handling of that complaint being satisfied that the
complaint was dealt with correctly. That letter went onto state –
“…if you believe that the ICO has provided you with a poor service, or if you
believe we have not treated you properly or fairly then you may be able to
complain to: The Parliamentary and Health Service Ombudsman (PHSO),
Millbank Tower, Millbank, London, SW1P 4QP.”
4. The Appellant responded to the strike out application stating that to strike out
his appeal would be breach of his human rights.
5. The Appellant does have a right to make an application under s166 of the Data
Protection Act 2028 as regards a complaint to the Information Commissioner.
However, the scope of an application under section 166 of the Data Protection
Act 2018 is to achieve some progress in a complaint that has not been
progressed. Once an outcome is received, there is nothing left to progress.
The Tribunal has no powers to investigate the investigation of the Respondent
or supervise their investigation as is suggested in the notice of appeal. The
investigation has been competed and reviewed.
6. As highlighted by the notice of appeal and the subsequent response from the
Appellant, he seeks to for the tribunal to review the complaint outcome which
is not an outcome that can be achieved under a section 166 application, albeit
the appeal has not in any way referred to the application being a section 166
application.
Case Reference: FT-EA-2024-0199-GDPR
7. I considered it appropriate to conduct the review on the papers and without a
hearing noting the nature of the application made and that both parties have
fully responded to the issues.
The legal framework and powers of the Tribunal
8. The Data Protection Act 2018 confirms the jurisdiction of the information
Commissioner for upholding information rights and data privacy. The Act
provides limited scope for appeals to the Tribunal, proceedings in the County
and the prosecution of offences before the criminal courts. The courts and
tribunals can only deal with those issues that Parliament has intended it to do
so as set out by the legislation.
9. As stated on the Information Commissioner’s website – complaints about data
protection outcomes can be reported for review to the ICO’s office or referred
to the Parliamentary and Health Service Ombudsman. There is no right of
appeal to the First Tier Tribunal from a data protection decision save in the
very limited circumstances permitted by the Act for example under s162 as
regards penalty notices etc This is distinct from Freedom of Information
requests where decisions of the ICO can be appealed to the First Tier
Tribunal. There also exists the right to apply for judicial review albeit that
would relate to the reasonableness of decision-making discretion of the ICO
rather than a disagreement with the decision itself, and noting the judicial
review is costly and time-consuming.
10. Since the DPA 18 came into force a person can apply to this Tribunal for an
“order to progress complaints” under section 166. That section provides –
166 (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
Case Reference: FT-EA-2024-0199-GDPR
(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.
11. Under section 166 DPA18, a data subject has a right to make an application to
the Tribunal if they consider that the Commissioner has failed to take action in
relation to their complaint.
12. The scope of s166 has already been considered by more senior Judges on a
number of occasions and as such their views on the ambit of s166 are binding
on this Tribunal.
13. The Tribunal is limited in its powers to those given by Parliament as
interpreted by the Upper Tribunal. As stated in Killock & others v
Information Commissioner [2022] 1 WLR 2241 by Mrs Justice Farbey-
74. The remedy in s.166 is limited to the mischiefs identified in s.166(1). We
agree with Judge Wikeley’s conclusion in Leighton (No 2) that those are all
procedural failings. They are (in broad summary) the failure to respond
appropriately to a complaint, the failure to provide timely information in
relation to a complaint and the failure to provide a timely complaint outcome.
We do not need to go further by characterising s.166 as a “remedy for
inaction” which we regard as an unnecessary gloss on the statutory
provision. It is plain from the statutory words that, on an application under
Case Reference: FT-EA-2024-0199-GDPR
s.166, the Tribunal will not be concerned and has no power to deal with the
merits of the complaint or its outcome. We reach this conclusion on the plain
and ordinary meaning of the statutory language but it is supported by the
Explanatory Notes to the Act which regard the section 166 remedy as
reflecting the provisions of article 78(2) which are procedural. Any attempt
by a party to divert a tribunal from the procedural failings listed in section
166 towards a decision on the merits of the complaint must be firmly resisted
by tribunals.
14. The legislation refers to “appropriate steps”. It is not the Tribunals’ function
to supervise the Information Commissioner who is an expert and in the best
position to assess what steps are required. This Tribunal will not interfere with
an exercise of regulatory judgement without good reason. See Killock paras
84 to 86.
15. The appropriateness of any investigative steps taken is an objective matter
which is within the jurisdiction of this Tribunal. However, as stated in
paragraph 87 of Killock, s.166 is a forward-looking provision, concerned with
remedying ongoing procedural defects that stand in the way of the timely
resolution of a complaint. This Tribunal is tasked with specifying appropriate
“steps to respond” and not with assessing the appropriateness of a response
that has already been given. It will do so in the context of securing the
progress of the complaint in question. The Tribunal has not powers to alter
the outcome or any enforcement steps thereafter.
16. Moreover, the Upper Tribunal said in Killock that if the Commissioner goes
outside her statutory powers or makes any other error of law, it is for the High
Court to correct her on ordinary public law principles in judicial review
proceedings. The assessment of the appropriateness of a response already
given is for the High Court and not this Tribunal. The combination of a
statutory remedy in the Tribunal in relation to procedures and to the
supervision of the High Court in relation to substance provides appropriate
and effective protection to individuals.
Case Reference: FT-EA-2024-0199-GDPR
17. This approach has been confirmed by the High Court and the Court of Appeal.
Mostyn J in the High Court in R (Delo) v Information Commissioner [2023]
1 WLR 1327, paragraph 57 –
"The treatment of such complaints by the commissioner, as before, remains
within his exclusive discretion. He decides the scale of an investigation of a
complaint to the extent that he thinks appropriate. He decides therefore
whether an investigation is to be short, narrow and light or whether it is to be
long, wide and heavy. He decides what weight, if any, to give to the ability of
a data subject to apply to a court against a data controller or processor under
article 79. And then he decides whether he shall, or shall not, reach a
conclusive determination...”.
18. Mostyn J’s decision in Delo was upheld by the Court of Appeal, see [2023]
EWCA Civ 1141.
19. More recently in the Upper Tribunal in Cortes v Information Commissioner
(UA-2023-001298-GDPA) which applied both Killock and Delo in
confirming that the nature of section 166 is that of a limited procedural
provision only.
“The Tribunal is tasked with specifying appropriate “steps to respond” and
not with assessing the appropriateness of a response that has already been
given (which would raise substantial regulatory questions susceptible only to
the supervision of the High Court)….As such, the fallacy in the Applicant’s
central argument is laid bare. If Professor Engelman is correct, then any data
subject who is dissatisfied with the outcome of their complaint to the
Commissioner could simply allege that it was reached after an inadequate
investigation, and thereby launch a collateral attack on the outcome itself
with the aim of the complaint decision being re-made with a different
outcome. Such a scenario would be inconsistent with the purport of Article
78.2, the heading and text of section 166 and the thrust of the decisions and
reasoning in both Killock and Veale and R (on the application of Delo). It
would also make a nonsense of the jurisdictional demarcation line between
Case Reference: FT-EA-2024-0199-GDPR
the FTT under section 166 and the High Court on an application for judicial
review.” (paragraph 33)
20. As initially indicated, this Tribunal does not have an oversight function in
relation to the Information Commissioner’s Office and does not hold them to
account for their internal processes. The Parliamentary and Health Service
Ombudsman is the body which has that function as do the High Court.
Analysis and conclusions
21. The Appellant has not indicated which article of the European Convention of
Human Rights he considers to be engaged. That Convention does not give
freestanding rights to override the will of domestic Parliament. The ECHR
does not provide power to the Court and tribunal that they do have, it requires
legislation to be read as far as possible to be compatible with the ECHR
provisions. The Appellant complains about a lack of remedy but there is a
remedy available to the Appellant as indicated in the letter.
22. The Applicant has an outcome from the Information Commissioner. The
Tribunal has no power to consider an appeal against the Information
Commissioner’s substantive findings or steps to be taken.
23. The Tribunal has no power to do what the Applicant is asking for in his
applications.
24. Section 166 Data Protection Act 2018 does not provide a right of appeal
against the substantive outcome of an investigation into a complaint under
s.165 Data Protection Act 2018.
25. Furthermore, the Tribunal does not have any power to supervise or mandate
the performance of the Commissioner’s functions.
26. There is no realistic prospect of the application succeeded in the
circumstances and it would be a gross misuse of the resources of the Tribunal
and the parties to allow that application to continue further. Time spent on a
hopeless application reduces those resources available to consider other
applications.
Case Reference: FT-EA-2024-0199-GDPR
District Judge Moan sitting as a First Tier Tribunal Judge
2nd August 2024