Case Reference: EA/2023/0530/GDPR
Information Rights
Heard: on the papers in Chambers
Promulgated on: 30 January 2024
Before
TRIBUNAL JUDGE HAZEL OLIVER
Between
GRAMAM NIGHTINGALE
Applicant
and
INFORMATION COMMISSIONER
Respondent
Decision:
The proceedings are struck out under Rule 8(3)(c) because there is no reasonable prospect of the Applicant's case, or part of it, succeeding.
REASONS
These proceedings involve an application to the Tribunal under section 166(2) of the Data Protection Act 2018 (“DPA”). The Applicant asks for an order in relation to a complaint to the Information Commissioner (the “Commissioner”).
Under Rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, the Tribunal may strike out the whole or part of the proceedings if the Tribunal considers there is no reasonable prospect of the applicant's case, or part of it, succeeding.
In his response to the application, the Commissioner submits that the application has no reasonable prospect of succeeding and accordingly the appeal should be struck out. The Applicant opposes the strike out.
The Commissioner says that the remedies sought by the Applicant are not outcomes that the Tribunal can grant under section 166 DPA because an order can only be made in relation to procedural failings.
Section 165 DPA sets out the right of data subjects to complain to the Commissioner about infringement of their rights under the data protection legislation. Under section 166 DPA a data subject can make an application to this Tribunal for an order as follows:
Orders to progress complaints
This section applies where, after a data subject makes a complaint under section 165 or Article 77 of the UK GDPR, the Commissioner -
fails to take appropriate steps to respond to the complaint,
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
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.
The Tribunal may, on an application by the data subject, make an order requiring the Commissioner -
to take appropriate steps to respond to the complaint, or
to inform the complainant of progress on the complaint, or of the outcome of the complaint, within a period specified in the order.
The Tribunal can only make an order under section 166(2) if one of the conditions at section 166(1)(a), (b) or (c) is met. There have been a number of appeal decisions which have considered the scope of section 166. It is clearly established that the Tribunal’s powers are limited to procedural issues, rather than the merits or substantive outcome of a complaint. Some key decisions are:
Killock v Information Commissioner [2022] 1 WLR 2241, Upper Tribunal at paragraph 74 - "…It is plain from the statutory words that, on an application under section 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."
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...”.
Mostyn J’s decision in Delo was upheld by the Court of Appeal ([2023] EWCA Civ 1141) – “For the reasons I have given I would uphold the conclusion of the judge at [85] that the legislative scheme requires the Commissioner to receive and consider a complaint and then provides the Commissioner with a broad discretion as to whether to conduct a further investigation and, if so, to what extent. I would further hold, in agreement with the judge, that having done that much the Commissioner is entitled to conclude that it is unnecessary to determine whether there has been an infringement but sufficient to reach and express a view about the likelihood that this is so and to take no further action. By doing so the Commissioner discharges his duty to inform the complainant of the outcome of their complaint.” (paragraph 80, Warby LJ).
The recent decision of 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 the FTT under section 166 and the High Court on an application for judicial review.” (paragraph 33).
The Applicant made a complaint to the Commissioner the failure of the Data Protection Officer of the Football Pools to respond to a request for information, in connection with someone having fraudulently made an application in his name. The Commissioner sent a response to the Applicant on 18 July 2023. This explained that the Football Pools had not complied with their data protection obligations, and they had written to them to ask them to ensure they provide a response and that all data is processed securely.
The Applicant complained about this outcome, which was treated as a review of the decision. The reviewing officer informed the Applicant on 1 September 2023 that he was satisfied the original case officer had dealt with the complaint appropriately, and provided advice on the scope of data protection law. The email explained that the case review is the final stage of the case handling process and the complaint would not be considered further. In fact, there was some further correspondence between the Applicant and the reviewing officer which further explained the scope of the right of access to personal data.
The Applicant’s application sets out the detail of what happened with his personal data, and explains why he is dissatisfied with the response of the Football Pools and the Commissioner.
The Applicant is challenging the substantive outcome of the complaint to the Commissioner. The Tribunal does not have power under section 166 to consider the merits or substantive outcome of a complaint. Section 166 is limited to procedural issues. The Commissioner has taken steps to investigate and respond to the complaint, and provided both an outcome and a reviewed outcome. The Appellant does not agree with this outcome, but there is no basis for the Tribunal to make an order under section 166.
The Applicant provided a reply to the Commissioner’s strike-out application. He acknowledges the various caselaw decisions on the scope of section 166, but says he hopes that in his case the Tribunal finds a good reason to invoke other criteria. He questions how the normal rules can apply when his personal data was provided by a criminal.
I do understand that the Applicant is distressed about what happened with his personal data and feels his complaints have not been dealt with correctly. However, for the reasons explained above, this Tribunal has no power to reopen the Commissioner’s investigation or deal with the other background issues raised by the Appellant.
I therefore find that there is no reasonable prospect of the case, or any part of it, succeeding. The proceedings are struck out.
Signed: Judge Hazel Oliver
Date: 26 January 2024