Dr Piers Shallow v The Information Commissioner

This appeal was stuck out on 18 November 2024 under Rule 8(3)(c) because there is no reasonable prospect of the Appellant’s appeal, or any part of it, succeeding. The strike out decision was set aside on 9 December 2024, as there had been a procedural irregularity, because the Appellant’s response to the Respondent’s application to strike out the appeal, was not before the deciding Judge, when they made the decision to strike out the appeal.

The appeal has now been referred to make a further decision on the strike out application. I have considered the Information Commissioner’s application and the representations made by the Appellant but for the following reasons I consider that the Appellant’s representations do not provide any additional reasons why the appeal should not be struck out. The Appellant has made a cross application to strike out the Respondent’s strike out application, which is refused.

This appeal is an application under Section 166(2) of the Data Protection Act 2018 (“DPA 2018”) for an order to progress the Appellant's complaint against the Skipton Building Society (“SBS”) to the Respondent dated 10 May 2024. The Respondent responded to the Appellant’s complaint on 9 August 2024 and stated that if there remained any residual concerns regarding SBS’s handling of the original subject access request, the Respondent would consider the matter further upon the provision of the additional information requested from the Appellant. The Appellant appealed on 6 September 2024.

On 10 May 2024, the Appellant wrote to the Respondent attaching 2 separate complaints about SBS with a concern about SBS’s handling of the Appellant’s subject access request about their own personal data, and the inappropriate disclosure of third-party data by SBS to the Appellant. In relation to the request regarding their own personal data, the Appellant requested that the Respondent use the powers under GDPR and the DPA 2018 to assess whether or not SBS actually holds the information they had requested and if so, determine if they are lawfully withholding information. The Appellant requested the Respondent “to order” SBS to comply with their requests by providing the detailed ID Check information that they asked for in their letters, and this includes, if necessary, SBS acquiring the requested detailed information from TransUnion. If not to provide justifiable reasons as to why the Respondent is satisfied that the restriction and refusal imposed by SBS was lawful.

The case was allocated case reference IC-306894-G6N4 and on 9 August 2024, the Respondent wrote to the Appellant and advised that SBS would not be obligated to provide the Appellant with information regarding any additional steps it took regarding its disclosure of third-party information to the Appellant, because the disclosure was not in relation to his personal data. However, the matter would be logged in order to build a picture of SBS’s information rights practices. The Respondent also advised the Appellant that whilst the Commissioner could not compel SBS to release the personal data and that the use of their powers must be proportionate to the circumstances of the particular case, they could assist the Appellant to the limited extent of asking SBS to confirm if it was withholding their personal data. The Appellant was advised to provide the Respondent with further information which was needed to consider the complaint further. The Appellant did not respond to that invitation.

The Appellant was not satisfied with the outcome of the complaint and appealed to the Tribunal on the basis that was response received no more than a “Next Step” or “guidance” response, absent of appropriate steps to investigate the complaint under Section 165(5) of the DPA 2018, without any attempt to contact SBS. Therefore, in the Appellant’s opinion the Respondent has failed to take appropriate steps to respond to the complaint or provide the complainant with information about progress on the complaint or provide an outcome of the complaint under Section 166 of the DPA 2018. The Respondent has also failed to take into consideration the nature and gravity of the infringement and the possibilities and the intentional or negligent character of the infringement under the GDPR.

The Respondent provided a response to the Tribunal and requested that the appeal be struck out as having no reasonable prospect of success. The Respondent noted that Section 166 DPA 2018 does not provide a mechanism by which an applicant can challenge the substantive outcome of a complaint. He went on to state that the relief available from the Tribunal on an application under section 166 only applies where it is satisfied that the Respondent has failed in some procedural respect to comply with the requirements of section 166(1) DPA 2018. He argued that that he has taken steps to investigate and provided the Applicant with an outcome on 9 August 2024. Accordingly, the outcomes sought by the Appellant are not outcomes which the Tribunal has power to grant because an order can only be made in relation to procedural failings.

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

fails to take appropriate steps to respond to the complaint,

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

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.

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.

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 Appellant also submits that the response received from the Respondent on 09 August 2024 was not a final response as ‘response’ and ‘outcome’ was not described stated or implied in the correspondence. Reference to guidance is not a satisfactory outcome response and has breached the Respondent’s obligation to provide established procedures and structures to handle complaints about infringements, which are transparent to the data subject. 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 Appellant’s complaint. It appears to me that there were no further appropriate procedural steps which the Respondent ought reasonably to have taken to progress the complaint. In accordance with the case law above, the Respondent has been given the very wide discretion 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.