Paul Gerard Leaney v Information Commissioner

These proceedings concern an application under section 166(2) of the Data Protection Act 2018 (“DPA 2018”) for an order to progress the Applicant’s data protection complaint dated 11 July 2024 (the “Second Complaint”, reference IC-320307-T1W5) concerning a Subject Access Request (the “SAR”) made to the Information Commissioner (“IC”) on 27 January 2024 (reference IC-28609-W6L8). This SAR was about an earlier data protection complaint the Applicant made to the IC in August 2023 concerning inappropriate disclosure of his personal information by Loughborough University Medical Centre (“LUMC”) (the “First Complaint”, reference IC-248770-J3D7).

The Applicant has confirmed that the application is in relation to the Second Complaint only.

In August 2023 the Applicant made the First Complaint to the IC that LUMC had inappropriately disclosed his personal information to Loughborough University (“LU”). On 3 August 2023, an IC case officer informed Dr Leaney that they were writing to the data controller, LU On 2 January 2024 the case officer again wrote to the Applicant. He explained that in his view the LUMC had complied with its data protection obligations, and had a legal basis to share the information directly with LU. There was a concern about how the information was shared and this part was noted.

On 27 January 2024, the Applicant made a SAR to the ICO, in its role as a controller, for information it had obtained in the course of the First Complaint. This request was acknowledged on 2 February 2024 and given the reference number IC-286091- W6L8. The Applicant was informed the case would be allocated to an Information Access Officer and that the response was due by 27 February 2024.

On 8 April 2024, the Applicant emailed the IC’s case officer expressing dissatisfaction with the response to the First Complaint and asking for a case review. On 24 April 2024, the case officer informed the Applicant that the review request had been received and that he would be contacted separately by a Reviewing Officer. On 22 May 2024, the IC’s Reviewing Officer wrote to the Applicant upholding the original decision on the First Complaint confirming that it had been dealt with appropriately by the case officer.

36. On 26 February 2024, the IC’s Information Access Officer responded to the Applicant’s SAR stating that the information requested was being withheld under paragraph 11 of Schedule 2 of the DPA 2018 on the basis it would likely to prejudice the IC’s function as a regulator. Consent to its disclosure had been sought but this was not forthcoming. Further, it was explained that section 132 of the DPA 2018 made it a criminal offence to disclose information provided to the IC for the purpose of carrying out its regulatory functions unless there is some lawful authority for doing so. Following further exchanges of correspondence with the Applicant, and additional enquiries being made, the case officer wrote to the Applicant on 3 May 2024 confirming that he was fully satisfied that the Integrated Care Board covering Leicester, Leicestershire and Rutland (“LLR ICB”) had not provided the IC with consent. The Applicant was informed that if he remained dissatisfied he could make a complaint to the IC, in its capacity as data protection regulator.

On 11 July 2024, the Applicant made the Second Complaint to the IC, in its role as the regulator under the DPA 2018, regarding the SAR that he had made. On 2 September 2024, the Applicant chased the matter stating he had not received a response and asking that his local MP, Mr James Naish MP, be copied into correspondence. On 16 September 2024, the Second Complaint was acknowledged.

On 4 November 2024, an IC case officer wrote to the Applicant confirming that she had been allocated the case and would inform him once work starts on his case. On 10 December 2024, following the Applicant’s MP contacting the ICO, he was informed that work will begin on the case that week.

On 13 December 2024, the IC’s case officer responded to the Applicant on the Second Complaint. The case officer explained that she was of the view that the IC had handled the Applicant’s appropriately, was satisfied with the IC’s decision to withhold the information requested, and that no further action would be taken. The IC considered that this provided an outcome to the Second Complaint.

On 19 January 2025, the Applicant provided further information regarding his views on why the complaint outcome should be reconsidered.

On 30 January 2025, the IC’s case officer again wrote to the Applicant apologising for the lack of direct response but that his elected representative had been informed along with his right to make a complaint in this regard. She reminded the Applicant that if he was unhappy with the outcome then a review can be requested. She reiterated that the concerns appeared to be in relation to the First Complaint, where an outcome was provided on 22 May 2024 following review.

The Applicant applied to the Tribunal by way of form GRC1 dated 26 February 2025 (the “Application”) seeking the following outcome:

“Allow the appeal and substitute a notice that orders the ICO to take steps in relation to the request for information and to subsequently review prior cases, relevant to the situation of this appeal, which were decided on the basis of any false information provided to the ICO by any organisation under investigation by the ICO. In particular review [the First Complaint] in light of the facts so far ignored by ICO.”

The Respondent applied by way of form GRC5 dated 13 August 2025 to strike out the Application (the “strike-out application”) to strike out 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 Applicant’s case set out in his form GRC1 identifies the following alleged failings by the Respondent in relation to the Second Complaint:

Following directions made by Judge Heald on 22 August 2025, the Applicant provided the following clarification about his case by email dated 28 August 2025.

“[The Second Complaint] is a complaint about how my ‘request for information’ (i.e. [the SAR]) was dealt with by the ICO concerning the information used to determine the outcome of a complaint I had previously made to the ICO (ie [the First Complaint]) and that as a data subject I had a right to see. The ICO refused to provide me with this information because they stated it had been supplied by a local authority ‘Leicester, Leicestershire and Rutland – Integrated Care Board’ which is an NHS organisation. The ICO has no basis for saying that the so called ‘statement’ came from the ‘local authority’ or that it came from the ‘LLR-ICB’. The LLR-ICB have made it clear to me through documentation that they did not supply this information to the ICO and had asked the ICO to change its record on this matter - which the ICO has never done. The ‘statement’ had, in fact, come directly from the organisation being investigated by the ICO (i.e. Campus View Medical Centre) and contained verifiably false and defamatory information. Once the ICO were made aware by both myself and the LLR-ICB of the situation they should have addressed the matter in an open, honest, fair and transparent way – but this did not happen. The result is that the ICO have come to a conclusion which has serious implications for the general public.

So the particular complaint in front of the Tribunal from me is [the Second Complaint] which is a complaint I submitted to the ICO on 11Jul24. Please note the small mistake in Respondent Response dated 31Jul25 paragraph 52 which mistaken states the date as 24Nov24 and not as 11Jul24 as it should be.

My GRC1 Section 8 requests a tribunal outcome that the ICO take (appropriate) steps (by the ICO) in relation to meeting my ‘request for information’ that is not misleading or false. Section 8 of GRC1 I made an additional request that previous cases (like IC-248770-J3D7) might then be possibly reviewed in light of the corrected information being openly acknowledged. I recognise this additional request might be outside the remit of the current Tribunal. This is why I also requested that I be allowed to take my broader case, with further evidence, to be considered by the Upper Tribunal. These ‘additional’ requests are maybe requests I am not allowed to make. If I am not allowed to make these additional requests then I withdraw them.”

The reasons given for the strike-out application in paragraphs 53-59 of the Response are as follows:

Section 165 DPA 2018 sets out the right of data subjects to complain to the Information Commissioner (here the Respondent) 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  

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.   

The case of Killock v Information Commissioner [2022] 1 WLR 2241, 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 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 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 IC provided the Applicant with a response to the Second Complaint on 13 December 2024 followed by a further letter on 30 January 2025 in response to the Applicant’s request for the Second Complaint to be reconsidered.

I am satisfied that when taken together these responses both provided an outcome to the complaint 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. It appears to me therefore that there were no further appropriate steps which the IC ought reasonably to have taken 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 were no further appropriate steps he should have taken.

The Tribunal’s power to order progression of a complaint under section 166 is limited to ordering the Respondent to take appropriate steps to respond to a complaint, or to inform the complainant of progress or an outcome within a specified period. The Tribunal has no power, as sought by the Applicant, to order the IC to “review prior cases, relevant to the situation of this appeal, which were decided on the basis of any false information provided to the ICO by any organisation under investigation by the ICO.”

The Applicant’s remaining points, including taking issue with the IC’s refusal to provide information in response to the SAR, are concerned with the substance of its response to the Second Complaint. 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.   

I also find that the IC is correct that the Tribunal has no jurisdiction to deal with the IC’s handling of a SAR in relation to a situation where the IC is the data controller concerned.

I therefore find an outcome was provided to the Applicant’s complaint which means that the Tribunal has no jurisdiction to reopen the complaint or to order that it be reinvestigated or investigated in a particular way. 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.