Case Reference: FT/EA/2026/0080/GDPR
Information Rights
Decided without a hearing
Before
JUDGE HARRIS
Between
MOHAMMED IQBAL NASSER BHATTI
Applicant
and
THE INFORMATION COMMISSIONER
Respondent
Decision: The Application is struck out under Rule 8(2)(a) because the Tribunal does not have jurisdiction to deal with it and under Rule 8(3)(c) because there is no reasonable prospect of it succeeding.
REASONS
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 TransUnion International UK Limited (“TransUnion”) regarding the handling of his personal data. The complaint was submitted to the Information Commissioner (“IC”) on 17 August 2025 and was dealt with under reference IC-414739- N5W1.
On 12 December 2025, the case officer wrote to the Applicant querying whether the Applicant’s complaint had been since been resolved and requesting confirmation as to whether the Applicant had received any further correspondence from TransUnion.
On 15 December 2025, the Applicant responded to the case officer confirming that his complaint had not been resolved and providing further information in relation to his complaint.
On 26 January 2026, the IC’s case officer wrote to the Applicant. The case officer explained that she was of the view that TransUnion had provided a reasonable response to the Applicant. The case officer explained that when submitting a subject access request, individuals are only entitled to received copies of their own personal data and that much of the data that the Applicant had requested from TransUnion was not his own personal data.
On the same day, the Applicant responded explaining that he was of the view that his complaint had not been resolved and re-iterated his complaint. Later the same day, the case officer responded to the Applicant explaining the IC’s role and noting that the IC had provided an outcome to the Applicant’s complaint earlier that day. The case officer confirmed that, having provided an outcome, they did not intend to take any further action. Finally, the case officer explained that, should the Applicant remain dissatisfied with how his complaint had been handled, he could raise a complaint.
The Applicant responded later the same day acknowledging the case officer’s letter and expressing dissatisfaction. The Applicant requested that the matter be re-opened and escalated to a senior case officer or the Regulatory Action Team.
On 27 January 2026, the case officer responded to the Applicant, acknowledging his request for a case review.
On 12 February 2026, the IC’s reviewing officer wrote to the Applicant following a review. The reviewing officer upheld the case officer’s determination and confirmed he was satisfied that the case officer had followed the IC’s complaint process correctly and provided the correct outcome. The reviewing officer confirmed that no further regulatory action would be taken.
The Application
The Applicant applied to the Tribunal by way of form GRC3 dated 24 February 2026. He stated that the outcome he was seeking, in summary, was an order that the IC be directed as follows:
to take such further steps as are necessary to ensure that the response to the complaint is supported by sufficient inquiry and evidence in accordance with the statutory duty under s.165(5) DPA 2018.
to reconsider the complaint and provide a reasoned, evaluative explanation addressing procedural issues in its response to the complaint and subsequent review, including:
“The decision to conclude compliance with Article 15(1)(c) without verifying the feasibility of identifying specific recipients through internal disclosure logs;
The decision to conclude compliance with Article 5(1)(d) (Accuracy) without inquiry into the operational thresholds and metadata relating to the probabilistic matching event;
The procedural rationale for declining to exercise Article 58(1) investigatory powers in circumstances where primary evidence of the processing logic was unavailable to the Applicant, following the controller’s final refusal. “
to inform the Applicant and the Tribunal of the progress of this reconsideration within such reasonable period as the Tribunal deems appropriate under s.166(2)(c).
In his grounds for the Application, the Applicant identified the following list of issues:
Whether the IC took appropriate procedural steps to gather and evaluate evidence necessary to assess the complaint, in light of the IC’s statutory discretion and investigatory duties.
Whether the IC’s decision not to examine specific internal metadata or technical audit logs constitutes a procedural omission or irrational limitation in the scope of the inquiry, as measured against the standards in Gourlay v Information Commissioner [2021] UKUT 48 (AAC) and Irvine v Information Commissioner [2021] UKUT 28 (AAC).
Whether the IC’s written rationale provided a transparent and intelligible account of how investigatory findings led to the decision to decline further inquiry, consistent with the public law duty recognized in R (Delo) v Information Commissioner [2023] EWCA Civ 1141.
Whether the IC met the requirement of procedural fairness by providing the Applicant a reasonable opportunity to understand and respond to the reasoning relied on in deciding not to take further investigatory action regarding the identified technical deadlock.
Whether any identified procedural inadequacy warrants a direction under s.166(2) DPA 2018 requiring the IC to reconsider the complaint or take further procedural steps, without the Tribunal determining the underlying merits of the data accuracy claim.
The Applicant clarified in his reasons for the Application that he was not seeking a determination of infringement or enforcement against the data controller, but rather whether the IC took appropriate steps in response to the complaint. He explained that the complaint concerned the adequacy of TransUnion’s response to a Subject Access Request (“SAR”) and concerns about the accuracy and traceability of personal data processed through probabilistic matching.
He identified the following procedural defects in the IC’s handling of his complaint:
The IC did not identify any independent investigative steps in its outcome letter and review letter.
The IC relied exclusively on the controller’s representations and its publicly available Privacy Notice. Reliance solely on a publicly available Privacy Notice does not constitute "appropriate steps" to investigate a complaint regarding undisclosed internal records.
The IC did not provide a reasoned assessment as to why no further inquiry was warranted, resulting in a non-evaluative decision.
The review decision dated 12 February 2026 failed to demonstrate that the IC considered or obtained evidence relevant to:
The existence or contents of disclosure logs identifying actual recipients;
Whether those recipients were capable of identification;
Whether technical material (e.g., system logs or probabilistic matching logic) was reviewed;
Whether the potential exercise of powers under Article 58(1) UK GDPR was warranted given the controller’s final refusal to disclose logs
The IC did not take the necessary procedural steps to assess the complaint in an evidentially informed manner.
The strike-out application
The IC applied by way of form GRC5 dated 20 March 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. In summary, these were as follows:
The remedies sought by the Applicant in relation to this matter are not within those available to the Tribunal under section 166 DPA18. An application under section 166 permits a Tribunal to make an order against the IC only if he has failed in some procedural respect.
The IC has taken appropriate steps to investigate and respond to the Applicant’s complaint and has provided an outcome to him. Accordingly, it is respectfully submitted that the IC has complied with the procedural requirements set out in section 166(1) of the DPA18, and there is therefore no basis for the Tribunal to make an order under section 166(2) DPA18.
It is clear that the Applicant disagrees with the outcome provided on his complaint. However, as set out above, section 166 DPA18 does not provide a mechanism by which complainants can challenge the substantive outcome of a complaint. The relief available from the Tribunal on an application under section 166 DPA18 only applies where it is satisfied that the IC has failed in some procedural respect to comply with the requirements of section 166(1) DPA18, limited solely to those orders that are set out in section 166(2).
If the Applicant wishes to seek an order of compliance against the controller for any alleged breach of his data protection rights, the correct route for him to do so is by way of separate civil proceedings in the County Court or High Court under section 167 of the DPA18.
I directed that the Applicant should provide representations in relation to the strike out application by 13 April 2026 under Rule 8(4)
The Applicant provided a Reply to the Response dated 1 April 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:
The Application is concerned with whether, objectively, the IC failed to take appropriate steps to respond to the complaint and whether identifiable investigative steps, objectively required to resolve the complaint were omitted. The appeal is “about failure of inquiry, not re-litigation of the underlying merits”.
The issue is not whether the IC reached a defensible conclusion on the material he chose to consider, but whether he failed to obtain material evidence that a lawful investigation required.
A decision-maker must make reasonable inquiries where material facts are unresolved. Where the complaint turned on disputed central facts, the IC could not properly resolve it by accepting untested assertions without first considering whether primary evidence was required.
The IC is legally incorrect to submit that because an outcome was issued the Tribunal lacks jurisdiction, relying on Smith (see below).
The statutory question is “whether the investigation was sufficiently informed before the outcome was issued…the issue is whether the inquiry that produced it was legally sufficient."
The IC did not obtain or inspect the underlying technical material necessary to understand how the processing complained of operated, which was material to whether the information sought was personal data or data relating to the Applicant. Without examining this technical material, the IC lacked the evidential basis to determine whether the complaint was correctly assessed.
The IC did not obtain disclosure log or equivalent records identifying actual recipients, which were materially relevant to assessing compliance by the data controller. Without this the IC could not lawfully determine whether the Article 15 issue had been adequately addressed and there was a failure to resolve a central factual issue.
The IC accepted the controller’s characterisation of its systems and responses without independent verification of the material facts. The complaint was therefore resolved on the basis of summaries and assertions rather than primary evidence.
The IC failed to consider whether the use of its Article 58 powers was necessary in this instance.
The Applicant also made a second application for anonymity in his Reply, but this was not made on the appropriate form so was incomplete. The Tribunal is satisfied that this decision as drafted does not raise matters which infringe the Applicant’s article 8 rights or disclose any sensitive information about the Applicant.
Legal framework
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.”
Discussion and conclusions
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 26 January 2026, with a further response after review on 12 February 2026. I consider that the response dated 26 January 2026 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 12 February 2026, 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 outcome sought by the Applicant is also, in effect, challenging the substantive outcome of the complaint to the IC because, as argued in the Reply, the Applicant considers that the IC’s investigation was insufficient or inadequate, the implication of which is that had the IC investigated as the Applicant wished, a different outcome may have been reached. 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. As set out above, the IC has a broad discretion as to whether to investigate and if so to what extent, an approach which was confirmed by the Court of Appeal in Delo. It is a matter for the IC as to what evidence it reasonably considers that it requires in order to deal with a complaint and challenges to the way in which the IC has conducted a concluded investigation are matters for judicial review, not for an application under section 166.
I also agree with the IC’s position that it is not a court or ombudsman and that orders for compliance against a 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 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.
Signed: Judge Harris Date: 2 June 2026