James Kelsall v Information Commissioner

Mr Kelsall asks the Tribunal to order the Respondent to respond to his complaint of 3 January 2025.

A data subject has a right to make a complaint to the Commissioner if they consider that, in connection with the processing of personal data relating to them, there is an infringement of the [UK] General Data Protection Regulations [GDPR] (now the UKGDPR in effect since 31 December 2020), and/or Parts 3 or 4 of the DPA18: see Article 77 [UK]GDPR, and section 165 (1) & (2) DPA2018.

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 certain procedural actions in relation to their complaint.

Section 166 DPA18 as relevant states:

The powers of this Tribunal in determining an application under s.166 are limited to those set out in s.166(2). The jurisdiction to make an Order is limited to circumstances in which there has been a failure of the type set out in s.166(1) (a), (b) and (c). The Tribunal has no power to deal with the merits of the complaint to the Commissioner.

The Tribunal may consider whether a step is appropriate; the Information Commissioner’s view on this will not be determinative but should be taken into account by this Tribunal and accorded due weight given that the Commissioner is an expert regulator in the best position to decide what investigations should be undertaken into any particular issue and how that should be done. This Tribunal will not interfere with an exercise of regulatory judgement without good reason.

As the Upper Tribunal confirmed in Smith v ICO [2025] UKUT 74 (AAC) [at paragraph 60], “the scope for finding that an “appropriate step” has been omitted once an ‘outcome’ has been produced is limited … 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 his application to this Tribunal on 28 July 2025, Mr Kelsall complained that the Respondent had issued no further progress update or response since an update on 21 May 2025. In its response, the Respondent confirmed that on 3 June 2025 it wrote to Mr Kelsall to confirm that it would not be responding to his complaint, and why. A copy of that letter is annexed to the response. It is regrettable that Mr Kelsall was not full and frank in his application.

The Respondent has responded to Mr Kelsall’s complaint, albeit to say that it will not be providing a response, and giving reasons why. Mr Kelsall has his outcome. He does not like the outcome, but that is not something this Tribunal can consider. His application for the Respondent to take appropriate steps is in reality an application that this Tribunal reconsider the decision not to provide a response, something that we do not have the power to do.

For this reason, the application has no reasonable prospects of success.