Erwan Firdaus Bin Ab Razak v Information Commissioner

These proceedings concern an application (the “Application”) under section 166(2) of the Data Protection Act 2018 (“DPA 2018”) for an order to progress the Applicant’s complaints against Meta Platforms Inc (“MPI”) and Meta Platforms Ireland Ltd (“MPIL”) (together “Meta”) regarding the alleged wrongful deactivation of his business account and Meta’s alleged failure to comply with Articles 12, 13 and 15 of the UK GDPR. The first complaint, concerning MPI was submitted to the Information Commissioner (“IC”) on 17 March 2025 and the second concerning MPIL on 21 March 2025. The IC clarified by email dated 6 May 2025 that it had dealt with both complaints under Reference IC-372267-X6M7.

On 2 April 2025, the IC wrote to the Applicant and explained that the IC was unable to assist individuals with gaining access to their Meta accounts as this is distinctly different to requesting personal data held by an organisation. The IC advised the Applicant that the IC is unable to intervene where Meta has ‘locked’ or deactivated an account for any reason.

The Applicant responded to the IC on 3 April 2025 raising further concerns about Meta’s compliance with the UK GDPR and clarifying that the complaint was not a request for account reinstatement.

On 22 April 2025, the IC wrote to the Applicant stating “We think that Meta may want to look again at the issues that you have raised in regards to accessing your personal data, lack of transparency and automated decision-making. If something has gone wrong, we expect Meta to work with you to put things right and to learn from their experiences and improve their practices. We have allowed Meta 28 days to consider the data protection issues that you have raised and to consider next steps in your case. We expect they will be in contact with you in due course”. The IC considered that this was an outcome to the complaint.

On the same date, the Applicant wrote to the IC and raised concerns about the time given by the IC to Meta to respond to the issues he had raised.

On 6 May 2025, the IC’s case officer confirmed that the complaints had been dealt with together under the same reference number and reiterated that the IC is unable to assist with the recovery of deactivated Meta accounts. It was noted that the UK GDPR only applies to personal data and a request for data relating to a business account would not fall under this legislation.

The Applicant responded on 7 May 2025 and clarified their complaint and raised further concerns. On 21 May 2025, the case officer noted the Applicant’s concerns and stated that they expected Meta to respond within 28 days. The case officer reminded the Applicant that the IC is an independent regulator, and does not offer an ombudsman style service, and as such could not compel Meta to provide him with the information he was seeking.

On 21 May 2025, the Applicant informed the case officer that the account had been reinstated by Meta. However, he remained concerned with Meta and its compliance with the UK GDPR.

On 23 May 2025, the IC’s case officer contacted Meta to advise that the Applicant remained dissatisfied with his SAR response and to contact him directly regarding this, with a request that they copy the IC into communications with the Applicant. The Applicant was informed about this the same day.

The Applicant emailed the case officer on 27 May 2025 to raise further concerns about the IC’s handling of his complaint and requested a case review. On 3 June 2025, the case was re-allocated to a new case officer and the Applicant was asked whether he had received a response from Meta and if he wanted his case to be passed to a reviewing officer prior to receiving a response. It does not appear the Applicant replied to that email.

On 13 June 2025, Meta contacted the case officer and provided a copy of the response sent to the Applicant on that day. The case officer emailed Meta on 19 June 2025 to advise that she was satisfied with Meta’s response to the Applicant’s concerns and that the complaint had been closed.

On 13 August 2025, the IC’s case officer contacted the Applicant to advise his case review request had been raised with a reviewing officer and apologised for the delay in actioning the request. Having considered the complaint and the information provided, the reviewing officer issued a review outcome on 15 August 2025. The reviewing officer was of the view that the original case officer handled the complaint correctly and the outcome reached was appropriate. However, it was advised that the Applicant’s case review request was not actioned within the appropriate timeframe and apologised for this

On 21 August 2025, following a further review of the complaint and to ensure the IC had taken the appropriate steps to address all elements of the Applicant’s complaint, the reviewing officer provided a detailed response to his concerns raised in his email of 21 May 2025.

On 23 May 2025, the Appellant applied to the Tribunal by way of form GRC3. He stated that the outcome he was seeking was as follows:

“I ask the Tribunal to make an order under section 166(2) of the Data Protection Act 2018, requiring the Information Commissioner to take appropriate steps in response to my complaint.

Specifically, I ask the Tribunal to direct the Commissioner to:

i.

Properly investigate Meta Platforms Ireland Ltd’s failure to comply with my Subject Access Requests;

ii.

Make a determination on Meta’s non-compliance with Article 15 of the UK GDPR;

iii.

Take enforcement action as appropriate under the Commissioner’s powers — including the issuance of an enforcement notice or penalty — to secure Meta’s compliance;

iv.

Confirm that the Commissioner’s prior failure to act was unlawful or insufficient under section 165(2) of the DPA 2018.”

In his grounds for the Application, the Applicant gave the following reasons:

“Despite clear evidence, the ICO has not issued a decision notice, compelled compliance, or indicated that any formal investigation is underway. It merely asked Meta to respond and took no further action, even after I followed up twice.

The ICO’s inaction stems from Meta’s refusal to respond to two SARs submitted after it deactivated my Instagram account on 1 November 2024 without warning or justification. Meta alleged copyright and counterfeit violations but offered no evidence. The Letter Before Action was sent to Meta on 15 November 2024 by both email and recorded post, with proof of delivery retained. Meta never acknowledged receipt and did not respond.

I submitted detailed rebuttals — including invoices, financial records, and a written challenge to Meta’s position. Meta failed to acknowledge the material, respond, or allow an appeal. The account was suspended for over six months. When reinstated on 13 May 2025, Meta gave no explanation, apology, or acknowledgement of fault. The resulting harm to access and data rights remains unresolved.

The impact has been severe. This account was my primary marketing and communication platform for a luxury retail business. Suspension during peak periods led to lost revenue, reputational damage, and wasted internal effort. These consequences could have been avoided had Meta disclosed my data or properly reviewed its enforcement decision when challenged.

I submitted the first SAR on 3 March 2025 and the second on 26 March, after Meta wrongly referred me to Meta Platforms Inc. in the US — despite Meta Ireland being the declared controller for UK users under its own privacy policy. The SARs requested all account-related data: login and access records, moderation and enforcement history, internal flags, and any profiling or automated decision logic under Article 15(1)(h). Meta disclosed none of this.

Following ICO contact, Meta merely pointed me to a self-service download — a copy of publicly visible posts. This is not a lawful Article 15 response. It excluded internal notes, moderation data, enforcement rationale, and profiling information — the very material requested.

I lodged my complaint with the ICO on 21 March 2025 and followed up on 22 April and 21 May. I clearly requested enforcement, not facilitation. I also flagged the ICO’s mistaken acceptance of Meta’s US jurisdiction claim — a legal and factual error it has not corrected.

To date, the ICO has failed to act. The data remains withheld. Meta remains non-compliant. This application arises from the ICO’s failure to fulfil its duties under sections 165 and 166 of the DPA 2018.”

On 25 August 2025, the Applicant provided a 39-page updated statement with supporting documentation summarising his position. At Section D, the Applicant went through the relevant chronology and made a number of submissions about the failings of the IC. In summary, the key points are as follows:

The IC applied by way of form GRC5 dated 4 June 2025 to strikeout the Application on the basis that the Tribunal has no jurisdiction to consider it under Rule 8(2)(a) and/or that there is no reasonable prospect of it succeeding (the “strike-out application”).

The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 21 to 24 and 44 to 46. In summary, these were as follows:

I directed on 26 August 2025 that the Applicant should provide any submissions in response to the strike-out application by 8 September 2025. Before that direction had been sent out, the Applicant filed a 17-page rebuttal to the IC’s application for extension of time for serving the Response and the strike-out application with the Tribunal on 27 August 2025.

The application for extension of time was dismissed because I found that the IC had filed its Response on time. I am, however, satisfied that taking the Applicant’s rebuttal together with his statement dated 25 August 2025, it is now appropriate to proceed to consider the strike-out application as the Applicant has filed detailed submissions opposing it which fulfil the requirement for the Tribunal to give an opportunity for representations under rule 8(4). The Appellant confirmed in an email dated 28 August 2025 that his rebuttal should stand as one of his formal responses to the strike-out application, but that he intended to file an addendum to it in the coming days.

On 5 September 2025, the Applicant filed a further submission, which he described as his “Keystone” submission, consolidating and building on his previous statement and rebuttal. On the same date he requested a direction from the Tribunal as to the standard to be adopted by the IC in any further action ordered by the Tribunal.

The reasons which the Applicant gives for opposing the strike-out application, in summary, are as follows:

In his Keystone submission dated 5 September 2025, the Applicant additionally included a summary of his understanding of section 165(4). He argues that section 165(4) imposes a binary duty to either determine that the controller has complied or determine that the controller has not and state what action will follow. He states that silence, referral back to the controller or descriptive correspondence does not amount to an outcome.

The Applicant stated that a lawful outcome must:

He relies on the authorities of Durant v FSA [2003], Scott v IC [2016] and Edem v IC [2014] in support of his position. He further argues that the IC has misunderstood and misrepresented his complaint on several occasions.

Section 165 DPA 2018 sets out the right of data subjects to complain to the IC about infringement of their rights under the data protection legislation. Under section 166 DPA 2018 a data subject can make an application to this Tribunal for an order as follows:

“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.”

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.

Section 165 deals with the complainant’s right to make a complaint and states that:

“(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,

(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 foreign designated authority is necessary.”

In the case of Killock v Information Commissioner [2022] 1 WLR 2241, the Upper Tribunal at paragraph 74 stated - "…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 decision of the Upper Tribunal in Cortes v Information Commissioner (UA-2023-001298-GDPA) which applied both Killock and Delo confirmed 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 case of Dr Michael Guy Smith v Information Commissioner [2025] UKUT 74 (AAC), noted at paragraph 60 that “it is for the Tribunal to decide, applying an objective test, if an “appropriate step” has been omitted, but observe that, in practice, that is unlikely to be the case where an ‘outcome’ has been produced. That is for two main reasons: first, because section 166 is a procedural provision and, as the principal mechanisms for enforcing rights or challenging the Commissioner are either claims against the data controller or judicial review of the Commissioner, section 166 should not be used to obtain ‘by the back door’ a remedy normally only available in those proceedings; secondly, because, if the Commissioner has already produced an outcome then, given the very wide discretion that the Commissioner has, both as to what and how to investigate and as to outcome, the scope for the Tribunal to say that an appropriate step has been omitted is limited.” In considering this the Tribunal must, as set out in paragraph 85 of Killick “when deciding objectively whether any (further) appropriate step needs to be taken by the Commissioner, take into account and give weight to the views of the Commissioner as an expert regulator.”

Paragraph 85 of Killick reads as follows: “However, in considering appropriateness, the Tribunal will be bound to take into consideration and give weight to the views of the Commissioner as an expert regulator. The GRC is a specialist tribunal and may deploy (as in Platts) its non-legal members appointed to the Tribunal for their expertise. It is nevertheless our view that, in the sphere of complaints, the Commissioner has the institutional competence and is in the best position to decide what investigations she should undertake into any particular issue, and how she should conduct those investigations. As Mr Milford emphasised, her decisions about these matters will be informed not only by the nature of the complaint itself but also by a range of other factors such as her own regulatory priorities, other investigations in the same subject area and her judgment on how to deploy her limited resources most effectively. Any decision of a Tribunal which fails to recognise the wider regulatory context of a complaint and to demonstrate respect for the special position of the Commissioner may be susceptible to appeal in this Chamber.”

The first question is whether the IC provided an outcome to the Applicant’s complaint. As a preliminary point, I do not accept the Applicant’s analysis of what an outcome must contain in order to be lawful. The Applicant’s Keystone submission in my view misquotes wording of section 165(4), which requires only that the IC take appropriate steps to respond, inform the complainant of the outcome and provide them with information about how to pursue the matter further. There is no statutory requirement to make a substantive determination or provide reasons capable of review and I do not consider that the case law on which the Applicant seeks to rely is sufficient to import these requirements.

The IC’s position is that he did provide an outcome, but this is disputed by the Applicant. In support of his position, the Applicant seeks to rely on emails from the IC from August 2025. In particular he says the IC admitted that “no review had been actioned” and “the case officer did not formally provide you with an outcome”.

I have reviewed in detail the recent correspondence between the parties in relation to this issue, and in particular emails dated 13, 15 and 21 August 2025. In my view, the position is not as clear as the Applicant suggests. The relevant chronology is as follows:

The IC provided the Applicant with a response to his complaint on 22 April 2025, a further clarification on 23 May and a response dealing with all outstanding points on 21 August 2025. I consider that the response dated 22 April was in fact an outcome to the complaint and it was referred to as such by the IC in its email dated 21 August 2025. I consider it to be an outcome, because the IC has no power to compel compliance by Meta and it took the steps which it considered to be appropriate to resolve the matter at that time. Further, I consider that the reference to an outcome not being provided was in relation to the further concerns raised about Meta and its compliance with the UK GDPR by the Applicant on 21 May 2025, not in relation to his original complaint. However, even if I am wrong on this, looking at the wider picture I am satisfied that when taken together these three responses have provided an outcome to the Applicant’s complaint, provided an answer to all outstanding issues and demonstrated that the IC had given consideration to whether there were other appropriate steps which could be taken to progress the Applicant’s complaint. This is sufficient in my view to demonstrate that the IC has complied with the requirements of section 165(4). The fact that the Applicant does not agree with the outcome does not render it wrong in law.

It appears to me therefore that there are no further appropriate steps which the IC ought reasonably to take to progress the complaint.  In making this decision I have given significant weight to the view of the IC as the expert regulator that there are no further appropriate steps he should have taken.

I disagree with the Applicant’s assertion that it is improper for the IC to continue to deal with the Applicant in relation to the complaint while the Tribunal process is ongoing. The nature of an application under section 166 is that it seeks an order to progress an investigation by the IC, which implies that that investigation is ongoing at the same time as the Tribunal is considering the application as to whether it needs to be progressed. However, a decision on whether the acts or omissions of the IC are unlawful in the context of this case is a matter for the Administrative court, not this Tribunal.

The outcome sought by the Applicant is for the IC to:

The Applicant’s proposed outcomes are, in effect, challenging the substantive outcome of the complaint to the IC. The Tribunal does not have power under section 166 to consider the merits or substantive outcome of a complaint. Section 166 is limited to narrow procedural issues and there is no further procedural failing in respect of which the Tribunal can make a decision.   In an application under section 166, the Tribunal has no power to direct the IC to investigate, in a particular way or at all, to take enforcement action to secure compliance with a request or determine whether or not there has been a breach of the UK GDPR. I also agree with the IC’s position that it is not a court or ombudsman and that orders for compliance need to be sought through civil action. Accordingly, I find that the Tribunal does not have the power to grant the outcomes sought.

Because I consider that there was an outcome determining the complaint and that there were no further appropriate steps which should be taken, I find the complaint has already been determined and therefore the Tribunal has no jurisdiction over it. I am also satisfied that there is no reasonable prospect of the case, or any part of it, succeeding because the outcome sought by the Applicant is not something which is within the Tribunal’s power to grant.

The proceedings are therefore struck out under Rule 8(2)(a) because the Tribunal does not have jurisdiction to deal with them and under Rule 8(3)(a) because there is no reasonable prospect of them succeeding.

The Applicant’s request for a direction in relation to future conduct of the IC, which was not made by way of a formal application, has been dismissed because the Tribunal has not ordered the IC to take any further steps in relation to the Applicant’s complaint and has struck out the proceedings.