Kathryn Fox 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 about the handling and inappropriate sharing of her personal information.

This Application has been dealt with without a hearing by consent of the parties and the Tribunal considered it fair and just to determine the case in this way.

The complaint was submitted to the Information Commissioner (“IC”) on 11 December 2024 and was dealt with under reference IC-352143-Y7L7.  The complaint form stated that it was about St Patrick’s Catholic Voluntary Academy (“the School”) and also stated that Sheffield Local Authority (the “LA”), Hallam Diocese (the “Diocese”) and St Clare Catholic Multi Academy Trust (“the Trust”) were involved in the complaint.

The complaint explained that a governor of the School had shared personal information about the Applicant with the LA rather than directing it to the School in breach of the School’s policies. The information was then shared among several people at the LA and then, in breach of LA policy, shared by the LA with the Diocese, who took steps to carry out an investigation. Following a decision that the School would join the Trust, personal information about the Applicant was also shared with senior management of the Trust. She stated that “I just want it recognised it hasn’t been dealt with properly according to policy and has resulted in my privacy and data being breached.”

On 3 April 2025, the IC’s case officer wrote to the Applicant. Following a review of the information provided by the Applicant, the case officer explained that the School appeared to have met its data protection obligations, supported by additional statutory duties that provide a lawful basis for sharing information with third parties. The case officer explained that, where justified, deviation from the standard complaints procedure is permissible.

The Applicant wrote back to the IC on the same day saying that this response did not quite address what the issue was. In summary she identified the following issues:

The IC’s case officer responded on 8 April 2025 stating that the IC would not be taking further action. They advised that if the Applicant remained concerned that the organisation was not complying with the requirements of data protection legislation she had the right to bring court proceedings to reach a personal resolution

The Applicant applied to the Tribunal by way of form GRC1 dated 22 April 2025. As there was no formal decision notice giving rise to a right to appeal, the Tribunal determined that this should proceed as an application under section 166 of the DPA 2018.

She stated that the outcome she was seeking was as follows: “For the ICO to look at my complaint correctly and address the different areas where I feel my data/privacy/confidentiality has been broken. I feel the ICO should have spoken to me for clarity around my complaint”.

In her grounds for the Application, the Applicant stated: 

“I am employed by [the School]

On 11 December 2024 I filed a complaint with the ICO regarding the following, which I believe involved multiple people/organisations breaching my data/privacy/confidentiality:

1.

A Governor/Director, independently and not on behalf of the School (my employer), shared [my personal data] with the Local Authority, who are not my employers. …

2.. The LA then shared [my personal data] with [the Diocese], who are not my employers. It should have been referred to school. The LA and Diocese then jointly commissioned an investigation…

3.

The school then shared [my personal data] with [the Trust]... The [Trust] are not my employers and there was no SLA in place with them.

As I had heard nothing from the ICO for 16 weeks I contacted them on 2 April 2025 for an update on when I would hear back. On 3 April 2025 I heard back and the decision was that the school had a lawful basis for acting outside of the complaints policy…. It was the LA that shared the information with the Diocese.

I do not feel the ICO addressed my complaint correctly, only addressed (wrongly) the issue with the school and not the individual Governor, LA, Diocese or [Trust].”

The IC’s Response

The IC filed a Response to the Application dated 22 October 2025 opposing the Application. In summary, it made the following points:

The IC also applied by form GRC5 on the same day for the Application to be struck out 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 27-31 and 34-37. These arguments are summarised above.

On 20 November 2025 I directed that the Applicant should provide representations in relation to the strike out application by 8 December 2025 under Rule 8(4). No response was provided by that date.

On 31 December 2025, Judge Buckley refused the strike-out application. She gave the following reasons: “There is a dispute between the parties as to whether the Commissioner failed to take any steps in relation to some part of the complaint raised by the appellant. For example, the appellant says that the Commissioner failed to take any steps in relation to her complaint about breaches of data protection legislation by (i) a Governor/director acting independently and (ii) by the local authority. These appear to be raised in the initial complaint, and the outcome letter appears to only deal with allegations against the school. On that basis it is at least arguable that no outcome has been issued in relation to some parts of the complaint and no steps have been taken.”

The Applicant sought to amend her grounds for the Application by an application first submitted by email on 18 February 2026 and subsequently by form GRC5 dated 6 March 2026. This application was refused by Judge Saward on 12 March 2026.

Following the Applicant issuing the Application, the IC contacted the Applicant on 24 October 2025 offering a case review and a telephone conversation to ensure that the IC had a correct understanding of the Applicant’s concerns. The IC’s record of the subsequent telephone call (bundle page 140) noted that further concerns had been raised subsequent to the original complaint and these had been set up as a new follow-up complaint (IC-441237-P5W5). The Applicant provided further documents in support of her position to the IC later that day and on 2 and 3 November 2025.

On 5 November 2025, the IC’s reviewing officer wrote to the Applicant stating that the Applicant’s concerns warranted further consideration and investigation of disclosure of the Applicant’s personal data between the a governor, the LA, the Diocese and the Trust. They stated that the IC would reallocate the Applicant’s complaints and carry out further work. The IC’s newly allocated case officer wrote to the Applicant on 7 November 2025 confirming their involvement and on 11 November 2025 seeking further information.

The Applicant provided further information to the IC by email dated 11 November 2025 and the IC acknowledged receipt of this on 14 November 2025.

On 25 November 2025, the IC’s case officer wrote to the Applicant. This letter summarised the complaints and concerns the Applicant had raised, including in relation to:

The IC’s case officer explained that only personal data can be obtained through an SAR. This letter also stated that the IC had contacted the School for further information, which it did on the same day.

The IC’s letter to the School dated 25 November 2025 observed that there may have been opportunities missed by the School to be clearer and more transparent with the Applicant regarding the processing and sharing of her personal data and why the processing was/is fair, lawful and necessary. It asked the School to review the Applicant’s concerns and provide further information to the IC.

On 9 January 2026, having received a response from the School, the IC’s case officer wrote to the Applicant. They noted that the School, the Trust and the Diocese work in partnership, but it does not immediately follow that it is appropriate for all personal data to be indiscriminately accessible to staff across the three organisations. However, in the IC’s view, it appeared likely that the School could justify the sharing of the Applicant’s personal data with the Trust and the Diocese and that this sharing was necessary and proportionate. They said that the School was actively reviewing its privacy notices with support from a newly appointed Data Protection Officer. The case officer recognised the confusion experienced by the Applicant around the sharing of her information with the Trust and was concerned that opportunities were missed by the School to provide more clarity around the handling of the Applicant’s personal data in this context. The IC informed the Applicant that they had on 9 January 2026 provided the School with guidance and asked them to carefully review and strengthen their data protection policies, procedures and staff training in relation to the right to be informed, but that the IC had not required the School to take any further action in relation to the Applicant’s complaint. Finally the IC said that it would keep the Applicant’s concerns on record and advised the Applicant of her right to pursue court action against the School.

On 22 January 2026, the IC’s case officer wrote again to the School to ask for further information about the Applicant’s concern that a governor received information about the Applicant in their governance role and inappropriately shared this independently and without authority directly with Ofsted and the LA outside of normal policies and procedures. On the same day, the IC’s case officer wrote to the Applicant to inform her that they had written to the School in relation to this concern. The Applicant provided further comments and information in response, including copies of the complaints made to Ofsted, on the same day.

On 18 February 2026, the IC’s case officer wrote to the Applicant, having received a response from the School. They stated that based on the information available, it appeared likely that the governor had received information and/or personal data about the Applicant in their governance role, which meant it is likely that the School was the data controller for the personal data when the governor shared information with Ofsted and the LA. They said that because of the wider context, it appeared reasonable that this information was included in the wider concerns reported to the LA and Ofsted. In the IC’’s view, it was therefore likely that the School could, in this specific context, justify the sharing of the Applicant’s personal data with Ofsted and the LA and they had an appropriate lawful basis and condition to do so. The IC remained concerned that the School had missed opportunities to be more transparent about their actions in relation to this and be accountable for their processing following concerns about these matters. It noted that the School has recognised that their justifications for processing personal data in this way were not always clear. The IC was, however, satisfied that it has taken and is taking steps to improve and strengthen their data protection practices and policies as well as governance procedures. In relation to the accuracy of the data shared, the IC concluded that it was reasonable that the information was shared and its accuracy could only be determined after investigation. Again, the IC said that it would keep the Applicant’s concerns on record and advised the Applicant of her right to pursue court action against the School.

Under a separate complaint (IC-440020-M2J3), the IC also considered the Applicant’s concerns in relation to the LA’s inappropriate sharing of the Applicant’s personal data with the Diocese outside normal procedures. The IC’s case officer wrote to the Applicant on 11 November 2025 asking for further information, which she provided the same day.

As the Applicant had confirmed she had not contacted the LA directly about her concerns the IC wrote to the Applicant on 13 November 2025 saying that it could write to the LA about this, providing them with guidance regarding their data protection obligations and asking them to review the handling of personal data in this context, as well as to provide the Applicant with a direct response. The Applicant confirmed that she was content with this on the same day.

On 20 November 2025, the IC wrote to the LA providing them with guidance regarding their data protection obligations and asking them to review the handling of personal data in this context, as well as to provide the Applicant with a direct response to be accountable to the Applicant for their processing and sharing of her personal data within 28 days. On the same day the IC’s case officer wrote to the Applicant informing her that this was the outcome of her complaint.

On 16 January 2026, the Applicant wrote to the IC to say that she had not yet had a response from the LA. The IC responded on 21 January 2026 to say that if she did not receive a response by the end of the month, she should contact the IC again. The IC chased the LA for a response on 3 February 2026 and advised the Applicant it had done so.

The IC also investigated concerns which the Applicant had about sharing and processing of her personal data by the Diocese under a separate complaint (IC-447110-M8Q2). The IC’s case officer wrote to the Applicant on 9 January 2026, having received a response from the Diocese. They noted that the School, the Trust and the Diocese work in partnership, but it does not immediately follow that it is appropriate for all personal data to be indiscriminately accessible to staff across the three organisations. However, in the IC’s view, it appeared likely in the specific context that the Diocese could justify the sharing and processing of the Applicant’s personal data and that this sharing was necessary and proportionate. As in the case of the School, the IC was concerned that opportunities were missed by the Diocese to be clearer and more transparent about the processing of the Applicant’s personal data in this context. The IC informed the Applicant that they had on 9 January 2026 provided the Diocese with guidance and asked them to carefully review and strengthen their data protection policies, procedures and staff training in relation to the right to be informed, but that the IC had not required the Diocese to take any further action in relation to the Applicant’s complaint. Finally the IC said that it would keep the Applicant’s concerns on record and advised the Applicant of her right to pursue court action against the Diocese.

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 -

a.

to take appropriate steps to respond to the complaint, or

b.

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.”

 As set out above, under section 166 (2), the Tribunal can only order the IC to take appropriate steps in relation to its handling of a complaint or that provide an outcome and/or update to the complaint by a specified point. In order to make such an order, the Tribunal must be satisfied that the IC has either:

In this Application, the key issue is whether the IC failed to take appropriate steps to respond to the Applicant’s complaint and address all the areas she had raised in her complaint, including the handling and/or sharing of her personal data by the School, its governor, the LA, the Diocese and the Trust. At the point of making the Application, I find that the IC had provided a response to the Applicant’s complaint on 3 April 2025, with a further response on 8 April 2025, but that these focused on the data protection obligations of the School only and did not deal with the wider context of information sharing by other parties. This was against the background that in her initial complaint the Applicant had made it clear the LA, Diocese and Trust were also involved. I therefore find that these responses were not an outcome to the Applicant’s complaints because they did not, even when taken together, provide an answer to all outstanding issues and demonstrate that the IC had given consideration to whether there were other appropriate steps which could be taken to progress the Applicant’s complaint.

However, following issue of this Application and an internal review by the IC, I find that the IC did consider these additional bodies and their handling or processing of the Applicant’s personal data and provided an outcome in relation to these aspects of the complaint as follows:

I am satisfied that, when taken together, these responses have provided an outcome to all the key elements of 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 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 therefore find that none of the conditions in section 166(1) of DPA 2018 are met, and thus the Application must fail, as the Tribunal cannot make any further procedural order to progress the IC’s handling of the complaint.

For all these reasons, I dismiss the Application.