Lucian Todoran 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 Border Force regarding the handling of his personal data. The complaint was submitted to the Information Commissioner (“IC”) on 26 March 2025 and was dealt with under reference IC-376777-G7J1.

On 28 August 2025, following a review of the evidence provided, the IC’s case officer provided the Applicant with an update regarding his complaint. It was noted that the case officer had contacted Border Force to request further information about what had occurred and would update the Applicant upon receipt of a response. The Applicant was also asked to clarify certain aspects of his complaint within two weeks. However, as these matters related to the broader scope of the complaint rather than specific issues concerning the Home Office (on behalf of Border Force), the case officer would continue to review them in the interim.

On 29 August 2025, the Office of the Data Protection Officer at the Home Office acknowledged the case officer’s request for further information and advised it has been forwarded to Border Force for their action.

On 24 September 2025, the Home Office provided a response to the Case Officer’s request.

On the same day, the IC’s case officer further requested the Home Office’s views on the processing of the Applicant’s personal data by 29 September 2025. The Applicant was made aware that further enquiries were being made.

The Home Office did not provide a response until 24 October 2025.

On 4 December 2025, having reviewed the information provided, the IC’s case officer wrote to the Applicant. The case officer considered that the Home Office had infringed its data protection obligations as they had not progressed the Applicant’s subject access request (“SAR”) until prompted by the IC. In relation to data sharing, the IC’s case officer observed that the Home Officeand the employer operate within a controller–processor relationship, meaning some sharing is permissible within defined parameters. However,it was concluded that the Home Office had not adhered to the fairness principle under data protection law when forwarding emails concerning complaints about Border Force Officers to the employer, as this was unlikely to have been reasonably expected by the Applicant. Recommendations were provided to the Home Office to improve its information rights practices, and the IC closed its file

The Applicant responded on the same day and requested a case review.

The IC’s reviewing officer wrote to the Applicant on 18 December 2025. The reviewing officer confirmed their view that the case officer had dealt with the Applicant’s complaint appropriately and in line with the IC’s case handling procedures, including explaining the reasons for their view. The reviewing officer confirmed that the IC did not intend to take any further action as it was satisfied that there was no outstanding data protection for it to pursue with the Home Office.

The Applicant applied to the Tribunal by way of form GRC3 dated 19 August 2025. He stated that the outcome he was seeking was as follows: “Direct the ICO to take appropriate steps to respond to my complaint.”

In his grounds for the Application, the Applicant stated: “The ICO has not issued a response and has not informed me of having taken any steps towards reaching such a final response.”

The IC applied by way of form GRC5 dated x 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 under Rule 8(3)(c).  This application was refused by Judge Roper on 25 November 2025 because there was no response from the IC at the time of the application and it was still possible that there may be a procedural failing in accordance with section 166 such that an order could be made by the Tribunal under section 166(2). Judge Roper stated that for the avoidance of doubt, his decision did not preclude the Tribunal from striking out the Application at a later date should circumstances change and relevant further evidence be presented.

The IC applied by way of form GRC5 dated 17 December 2025 reconsideration of Judge Roper’s decision. There is no provision in the Tribunal’s rules for reconsideration of a decision made by a Judge as opposed to a Registrar and there was no request for permission to appeal to the Upper Tribunal, but the IC had stated in its letter dated 9 December 2025 that the Application should now be struck out as having no reasonable prospect of success. I exercised the Tribunal’s discretion to treat this as a fresh strike out application based on the previous application together with the additional facts and chronology set out in the letter from the IC dated 9 December 2025. In doing so, I took into account the overriding objective, particularly dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; avoiding unnecessary formality and seeking flexibility in the proceedings; and avoiding delay, so far as compatible with proper consideration of the issues. I made directions dated 18 December 2025 for the Applicant to make representations as to the proposed striking out under Rule 8(4).

The Applicant provided representations on 8 January 2026, so I am satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4). He made a number of requests, but these were not made as applications on the relevant form. The points made by the Applicant, in summary, were as follows:

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: 

“Orders to progress complaints

(1)

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 -

d.

to take appropriate steps to respond to the complaint, or

e.

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. 

Section 165 deals with the complainant’s right to make a complaint and states that: 

“(4)

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

(a)take appropriate steps to respond to the complaint,

(b)inform the complainant of the outcome of the complaint,

(c)inform the complainant of the rights under section 166, and

(d)if asked to do so by the complainant, provide the complainant with further information about how to pursue the complaint.

(5)

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

(a)investigating the subject matter of the complaint, to the extent appropriate, and

(b)informing the complainant about progress on the complaint, including about whether further investigation or co-ordination with  foreign designated authority is necessary.”

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.”

I deal briefly with the points raised in the Applicant’s submissions dated 8 January. I do not consider that there was any error of law in my decision to exercise the Tribunal’s case management discretion in relation to the renewed strike out application in my directions dated 18 December 2025. At that point there was new information and evidence before the Tribunal as a result of which it was reasonable and appropriate to consider whether there were sufficient grounds for striking out. I also do not agree with the suggestion that striking out should be treated as “res judicata” for this reason, as the new information meant that I was not simply considering the same material which Judge Roper had previously reviewed. Judge Roper’s decision dated 25 November 2025 explicitly envisaged that it may be appropriate for a future strike out application to be considered in the event that circumstances changed and new information became available.

Moving to the substantive issues in the Application, the first question is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response to his complaint on 4 December 2025 with a further response on 17 December 2025 following a review. I consider that the response dated 4 December 2025 was in fact an outcome to the complaint, because 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.

Even if I am wrong on this, I am satisfied that when taken together with the response dated 18 December 2025, 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 or wishes it to be enforced 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 outcome originally sought by the Applicant was that the IC provide a response to his complaint, which the Applicant accepts has been provided. In his recent representations, the Applicant has developed the outcome sought into a request for enforcement of the IC’s decision.

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. The IC is not a court or ombudsman and orders for compliance by a data controller need to be sought through civil action. Accordingly, I find that the Tribunal does not have the power to grant the outcomes 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 outcome now 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.