Lee Stratford Parson 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 the Information Commissioner (“IC”) in relation to his Data Subject Access Request (“DSAR”). The complaint was submitted to the IC on 15 May 2025 and was dealt with under reference IC-395589-W0X5.

The DSAR in question concerned an earlier complaint made to the IC by the Applicant against Hampshire Police (IC reference IC-336340-J2B7). (I note that the Applicant also referred this earlier complaint to the Tribunal and it was struck out on 30 January 2026 under Rule 8(2)(a) because the Tribunal did not have jurisdiction to deal with it and under Rule 8(3)(a) because there was no reasonable prospect of it succeeding.)

The IC responded to this DSAR on 3 April 2025 (IC reference IC-368735-C2Q2) and confirmed to the Applicant that he had contacted Hampshire Police on 7 February 2025 and received a response. However, the Applicant says that the IC withheld the full content of the response from Hampshire Police despite it potentially containing personal data central to the Applicant’s complaint and the IC offered no lawful justification for doing so under UK GDPR or the DPA 2018.

The Applicant complained to the IC’s Public Advice and Data Protection Complaints Service on 15 May 2025. The Applicant says the complaint challenged the IC’s continued reliance on statutory exemptions and raised concerns as to whether those exemptions had been lawfully applied and whether supervisory consideration was required.

On 28 May 2025, the IC responded to the Applicant acknowledging theconcerns raised and stating that it regulates its responses to informationrequests. In that correspondence, the IC indicated that, if the Applicantwished, the concerns could be forwarded to the regulatory side of the IC for formal consideration, rather than being addressed through itsinformation-access procedures.

On 30 May 2025, the Applicant replied to the IC’s correspondence of 28May 2025, setting out in detail his objections to the continued reliance onParagraph 11 of Schedule 2 DPA 2018 and disputing the assertion thatdisclosure would prejudice the IC’s regulatory function. In thatcorrespondence, the Applicant emphasised the ICO’s statutoryenforcement powers under the Data Protection Act 2018, raised concernsabout transparency and accountability in the handling of his personaldata, and expressly requested that the matter be escalated to theregulatory side of the ICO for formal consideration.

On 7 October 2025, having reviewed the information provided, the IC’s case officer wrote to the Applicant concluding that the IC had complied with data protection regulations and that the DSAR had been appropriately responded to. The case officer confirmed that the information withheld was in line with the exemption under paragraph 11 of Schedule 2 of the Data Protection Act 2018 (DPA) concerning the IC’s exercise of its regulatory functions, and that the reasons for applying the exemption had been clearly outlined in the response letter provided to the DSAR dated 3 April 2025 (case reference IC-368735-C2Q2). The case officer advised that no further action would be taken at this stage, but a record of the complaint would be retained. They explained that information gathered from complaints may inform future action to ensure compliance with information rights obligations. I note that the Appellant refers to this correspondence in his Statement of Case as “an outcome”.

On 17 October 2025, the Applicant responded to the letter dated 7 October 2025 and expressed his dissatisfaction with the outcome and provided further information for review. The Applicant states that he sought clarification of key issues including whether any investigation had been conducted, why partial disclosure or redaction had not been considered and queries about the basis on which the exemptions on which the IC relied had been upheld.

On 31 October 2025, the case officer responded to the Applicant’s correspondence, acknowledging his dissatisfaction, but upholding the outcome that had been sent, and deeming the matter closed, with further information provided on how to raise any concerns about service.

On 9 November 2025, the Applicant requested a case review by a reviewing officer. The Applicant states that the areas of concern he identified included failure to investigate, failure to apply the statutory tests under Paragraph 11 of Schedule 2 DPA 2018 and Article 23(1) GDPR and provide adequate reasoning or signposting.

On 12 November 2025, the IC’s case officer acknowledged the Applicant’s request and advised that a reviewing officer will issue a response within one calendar month.

On 27 November 2025, having reviewed the evidence provided and the Case Officer’s handling of the complaint, the Reviewing Officer wrote to the Applicant. The reviewing officer was satisfied that the case officer had dealt with the Applicant’s complaint appropriately and confirmed that no further action would be taken. The Applicant was informed of his rights to escalate his complaint to the Parliamentary and Health Service Ombudsman, and should he wish to pursue legal action, it was recommended that he seek independent legal advice. The Applicant says that this correspondence failed to identify a right to apply to the Tribunal under section 165 DPA 2018

The Applicant applied to the Tribunal by way of form GRC3 dated 17 December 2025. He stated that the outcome he was seeking was an order under Section 166(2) of the DPA 2018 requiring the IC to take appropriate steps in response to the Applicant’s complaint under Section 165 of that Act. At section C of the Applicant’s Statement of Case filed in support of the Application, he sought the following relief:

In his statement of case, the Applicant, in summary, identified the following grounds:

The IC applied by way of form GRC5 dated 13 January 2026 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) (the “strike-out application”).

The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 33 to 36. In summary, these were as follows: 

The Applicant provided a Reply to the Response dated 14 January 2026, which deals with the strike-out application as well as the substantive response, so I am satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4). 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.”

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 7 October 2025, with a further response on 31 October 2025 and a further response on 27 November 2025 following a review. I consider that the response dated 7 October 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 responses dated 31 October 2025 and 27 November 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 does not render it wrong in law and it is not within this Tribunal’s jurisdiction to determine the lawfulness of the process by which the IC reached a decision as that is a matter for the Administrative Court on judicial review.

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 sought by the Applicant is also, in effect, challenging the substantive outcome of the complaint to the IC and he states expressly in his Statement of Cast that he seeks an order that the IC reconsider his complaint afresh and provide him with a lawful outcome notice. 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 it is not a court or ombudsman and 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 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. The IC was, in my view, correct not to indicate to the Applicant the availability of a remedy under section 166 because no such remedy is available once the complaint has been determined.  I am also satisfied that there is no reasonable prospect of the case, or any part of it, succeeding because the outcome 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)(c) because there is no reasonable prospect of them succeeding.