David Van Vuuren 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 complaint against handling of a Subject Access Request (“SAR”) by Everyone Active (“EA”), which was submitted to the Respondent on 16 October 2024 (Reference IC-339843-W5R7).

The Application was made by the Applicant by form GRC3 dated 15 February 2025 and in it the Applicant stated that he sought an order “to get the ICO to take action on my complaint”.

The Respondent wrote to the Applicant on 24 March 2025. It provided the following response:

“We have reviewed the information provided in relation to your subject access request and are satisfied with the response which Everyone Active has provided to you. We understand that Everyone Active has stated that the meeting regarding your ban was not recorded therefore there was no documentation around this. We cannot compel an organisation to provide information as part of a subject access request if they do not hold this data. Further to this, we would not expect organisations to create new information to respond to a subject access request, they are only compelled to provide data which they already hold. If you have evidence that Everyone Active holds the information you are requesting, please provide this to the ICO so we can revisit this part of the complaint.

We understand you may have concerns that a formal record was not held in relation to your ban, however we cannot commend on an organisation’s processes when implementing a ban on gym members. If you have concerns about this, you should consult the organisation’s internal complaints policy.

Further to this, we understand you have concerns that details of your concerns were shared with other members of the gym. We have written to Everyone Active about this aspect of your complaint. We have requested they review your concerns and provide you with their findings in relation to this. If the organisation believes they have complied with the law, we expect them to clearly explain that to you. However, if something has gone wrong, we expect them to work with you to put things right and to learn from their experiences and improve their practices. We expect they will be in contact with you soon.”

On the same date the Respondent’s case officer wrote to EA and raised the Applicant’s concerns. EA wrote to the Respondent on 25 March 2025 and provided a copy of the email they sent to the Applicant. In that email, EA confirmed that they had investigated the matter and assured him that his personal data was not shared with other gym members.

The Respondent applied by way of form GRC5 dated 28 March 2025 to strike out the Application on the basis that he had now taken steps to comply with the procedural requirements set out in section 166(1) of the DPA 2018 and there therefore no basis for the Tribunal to make an order under section 166(2). The Respondent invited the Applicant to withdraw the Application, failing which he invited the Tribunal to strike out the Application because there was no reasonable prospect of the proceedings succeeding.

The Tribunal issued case management directions dated 12 June 2025 which gave the Applicant an opportunity to make representations about the proposed striking out of the Application by 27 June 2025. No response or further correspondence has been received by the Tribunal from the Applicant.

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 Respondent provided the Applicant with a response to his complaint on 25 March 2025. I am satisfied that this response both provided an outcome to the complaint and demonstrated that the Respondent 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 Respondent ought reasonably to have taken to progress the complaint.  In making this decision I have given significant weight to the view of the Respondent as the expert regulator that there were no further appropriate steps he should have taken.

I therefore find an outcome was provided to the Applicant’s complaint and the Respondent’s handling of that complaint has been concluded. Accordingly, there is no further order to progress the handling of the Applicant’s complaint which the Tribunal can make in response to the Application.

The proceedings are therefore struck out under Rule 8(3)(a) because there is no reasonable prospect of them succeeding.