Katherine Bishop v The 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 Liverpool Women’s NHS Foundation Trust (“the Trust”) regarding the alleged partial response to a subject access request (*SAR”) made in 2023. The complaint was submitted to the Information Commissioner (“IC”) on 17 January 2024 who, on 15 April 2024, assigned a case officer and allocated the reference IC-282633-Q2G4.

On the same day the assigned case officer wrote to the Applicant to issue an outcome on the complaint. Having reviewed the complaint the case officer noted that the Applicant had raised her concerns previously and that this had been dealt with under a separate case reference IC-245849-N2L7, to which the IC had already provided an outcome accountability letter on 31 July 2023. The case officer concluded that as the IC had previously addressed the complaint, there was no further action for the IC to take.

On 15 May 2024, the Applicant emailed the case officer outlining her concerns that her complaint was being misunderstood. The Applicant highlighted the unresolved issue in relation to the disclosure of ‘sensitive PENs information’ and provided an email thread as confirmation.

On 22 May 2024, the case officer acknowledged receipt of the Applicant’s email and noted that there was no indication that the Applicant had raised her concern with the Trust regarding the ‘sensitive PENs information’. The case officer provided guidance and advice on how to make a SAR. The case officer further advised that the case would be closed and included a link to the Commissioner’s service standards, through which the Applicant could request a service complaint and/or request for a case review. On the same day the Applicant expressed her concerns about the way the case officer had handled the complaint and attached a request for a service/case review of her complaint.

On 5 June 2024, a reviewing officer reviewed the Applicant’s concerns alongside the relevant case material. While acknowledging that the original case officers had clearly articulated their reasoning, the reviewing officer concluded that further examination was justified, particularly with regard to the ‘sensitive PENs note’ which the Applicant believed was being withheld. After this, the case officer emailed the Trust on 19 June 2024, advising that the Applicant had requested a copy of the ‘sensitive PENs note’ and not received a response. The case officer requested that they address any outstanding issues with the Applicant and that they should provide a response within 14 days and inform the IC when this had been completed. On the same day the case officer wrote to the Applicant to confirm these actions. On 20 June 2024, the Applicant expressed her dissatisfaction with the case officer’s decision to close the case. The Applicant contended that the Trust should either provide justification for withholding the information or release it for review by the IC.

The Applicant submitted a further complaint advising that on 24 January 2023, she submitted a FOI request to the Trust for personal data from July 2021 onwards. Among the disclosed records was an alleged internal email instructing the transfer of sensitive PENs data to counselling notes and deletion of two progress entries dated 20 July 2022. The Applicant said that she raised a formal complaint about the deletion, which she alleges was unauthorised and potentially criminal. The notes have not been disclosed, despite her SAR and complaint. The Applicant said that the Trust’s response dated 17 January 2024, cited the HFEA Code of Practice to justify the deletion, stating the data was moved to a secure counselling system. The Applicant alleges the notes were written by a nurse – not a counsellor – and should have remained in her clinical record and that the Trust had also failed to explain why non-PENs content from the deleted notes were not released.

The Trust replied to the IC on 4 July 2024, stating that the information in question had previously been addressed in the Applicant’s third formal complaint to the Trust. The complaint in question was independently investigated and the outcome communicated via the Trust’s standard complaints procedure. The outcome was that the complaint was not upheld. The Trust explained to the IC how the Applicant alleges that information was removed from the Trust’s PENs system and withheld. The Trust told the IC that the Applicant has been informed that the data was securely transferred to a restricted-access system to enhance confidentiality and comply with the HFEA Code of Practice. That transfer involved removing it from the original system. Although the Applicant was informed of the above in response to her third complaint to the Trust, the Trust have confirmed that the data was not withheld intentionally. The independent investigator found the complaint unsubstantiated and concluded that clinical staff acted appropriately to safeguard confidentiality

On 5 July 2025, the IC’s case officer acknowledged the Applicant’s further complaint dated 24 June 2024 and explained that the IC cannot accept repeated submissions under one complaint, as it affects fair assessment of the organisation. The case officer explained that under UK GDPR, organisations decide what personal data is relevant for disclosure. The Trust appropriately redacted third party data, applied valid exemptions, and confirmed in its letter to the Applicant dated 19 September 2023 that all personal data held about the Applicant had been provided. The Trust explained that data was moved from PENs to a more secure system to comply with the HFEA Code of Practice and that this transfer involved removing it from the original system. The case officer confirmed that the IC accepted the Trust’s assurances and would take no further action and that the matter was closed. The Applicant was reminded of her right to pursue independent legal action against the Trust, and of her right to complain to the Parliamentary and Health Service Ombudsman (PHSO) if she was dissatisfied with the service that she had received.

On 26 July 2024, the Applicant submitted a further complaint advising that her case was closed on 19 June, with the IC stating that the Trust had more work to do and that the Trust had not responded or provided the requested data and remained in breach of GDPR.

On 3 October 2024, the Applicant resubmitted the complaint originally submitted on 26 July 2024.

On 11 August 2025, the IC wrote again to the Applicant following a case review. Having reviewed the complaint and the outcome issued by the case officer, the case reviewing officer was satisfied that the case officer had dealt with the complaint appropriately and in line with the ICO’s case handing procedures. The case reviewing officer sincerely apologised for the service received during her case review request and that the Applicant’s request on 3 October 2024, was not referred due to human error. The Applicant’s service complaint was upheld and apologies were sent to the Applicant for the inconvenience caused. In relation to the Applicant’s concern about the Trust, the reviewing officer having reviewed the relevant information was satisfied that the case officer had handled the complaint in accordance with the IC’s guidelines. The Trust confirmed that all personal data that the Applicant was entitled to had been provided, and no further information was being withheld. The Applicant was reminded of her right to pursue independent legal action against the Trust, and of her right to complain to the Parliamentary and Health Service Ombudsman (PHSO) if she was dissatisfied with the service that she had received.

The Appellant applied to the Tribunal by way of form GRC1 on 19 June 2024. She stated that the outcome she was seeking was as follows:

The IC applied by way of form GRC5 dated 1 September 2025 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 “strike-out application”).

The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 23-24 and 39 to 41. In summary, these were as follows:

The Applicant provided a Reply which included a response to the strikeout application on 30 September 2025. She stated that “there have been a large number of significant procedural failings throughout my involvement with the Commissioner on this issue, and therefore the case is entirely within the jurisdiction of the Tribunal” and should not be struck out. In summary she made the following points:

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:

This section applies where, after a data subject makes a complaint under section 165 or Article 77 of the UK GDPR, the Commissioner -

The Tribunal may, on an application by the data subject, make an order requiring the Commissioner -

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:

If the Commissioner receives a complaint under subsection (2), the Commissioner must—

The reference in subsection (4)(a) to taking appropriate steps in response to a complaint includes—

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 IC provided the Applicant with a response to her complaint on 15 April 2024 with the decision upheld on 5 June 2024 and a further outcome provided on 5 July 2024. I consider that the response dated 15 April 2024 was in fact an outcome to the complaint.  I consider it to be an outcome, because the IC has no power to compel compliance by the Trust and it took the steps which it considered to be appropriate to resolve the matter at that time. However, even if I am wrong on this, I am satisfied that when taken together with the further responses dated 5 June 2024 and 5 July 2024, these 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.   

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 orders for compliance need to be sought through civil action. Accordingly, I find that the Tribunal does not have the power to grant the remedies 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 remedies sought by the Applicant are not ones 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.