Jerry Ugochukwu Okoye v The Information Commissioner

1.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 Crown Prosecution Service (“CPS”) regarding the handling of his personal data and its response to the Applicant’s Data Subject Access Request (“DSAR”). The complaint was submitted to the Information Commissioner (“IC”) on 28 May 2025 and was dealt with under reference IC-393218-J0F3.

2.On 6 June 2025, the Applicant provided further information regarding his complaint against the CPS.

3.On 10 June 2025, the case officer wrote to the Applicant providing him with the case reference number.

4.On 13 June 2025, having reviewed the evidence provided, the IC’s case officer wrote to the Applicant. The case officer explained that this was not a matter the IC could assist the Applicant with. As the Applicant was requesting information from the courts in order to represent himself, this process fell outside of the IC’s remit. The case officer explained that CPS had responded to the Applicant’s complaint under the Disclosure of Prosecution Material under

Section 7

A

Criminal Procedure and Investigations Act 1996

(“CPIA”). This is not legislation that the IC regulates. The Applicant was informed that, should they wish to do so, they may seek independent legal advice on how to proceed.

5.On the same day, the Applicant responded expressed his dissatisfaction to the outcome provided by the case officer.

6.On 16 June 2025, the case officer reviewed the Applicant’s further correspondence and upheld their decision. The case officer re-iterated that this was not a data protection matter; even if the Applicant believed he had made a DSAR, the CPS has processed the request under the CPIA due to impending court proceedings. They noted again that the IC does not regulate the CPIA . The case officer also explained that, in the event that CPS had sent the requested information to the Applicant’s solicitor, this may be something the IC would look at, but this would depend on the knowledge of the CPS at the relevant time. The Applicant was advised to make a complaint to CPS directly. The Applicant was referred to the IC’s complaints procedure and informed again of their right to seek independent legal advice.

7.On the same day, the Applicant responded and expressed further dissatisfaction with the Case Officer’s decision. The Applicant requested a case review.

8.On 14 July 2025, the IC’s Reviewing Officer wrote to the Applicant. They concluded that whilst some of the Applicant’s requests to the CPS related to access to a full case file and did not constitute subject access requests, the Applicant had also made a DSAR on 12 May 2025, the status of which was unclear. The Reviewing Officer also identified a potential issue regarding the disclosure of personal data to the Applicant’s former legal representatives after the Applicant had indicated they were no longer representing him. The Reviewing Officer informed the Applicant that further enquiries would be made with the CPS in respect of the DSAR and disclosure to former solicitors, and the Applicant was informed that they would be updated in due course and that any additional concerns should first be raised with the CPS. The Reviewing Officer upheld the original case officer’s assessment regarding access to the full case file.

9.On 1 September 2025, the Reviewing Officer issued a revised outcome to the Applicant following receipt of information from the CPS. The Reviewing Officer explained that enquiries had been made regarding the Applicant’s request dated 12 May 2025 and the alleged disclosure of personal data to former legal representatives. They noted that the CPS had provided an account of how the requests had been processed under the DPA 2018, including delays attributed to administrative error, and indicated that the relevant request had ultimately been responded to on 2 July 2025. The Reviewing Officer further observed that there may have been confusion arising from multiple requests made by the Applicant under different legislative regimes. Whilst it remained unclear whether any improper disclosure had occurred, it was noted that, if established, this could amount to a breach of the UK GDPR and/or DPA 2018. The Reviewing Officer said that they would write to the CPS and remind them to ensure other deal with subject access requests appropriately. In light of the steps taken and the response provided, no further regulatory action was required at that stage. The Applicant was advised that section 165 of the DPA 2018 requires the IC to investigate complaints only to the extent appropriate, and that, as a regulator, the IC focuses on matters necessary to promote compliance rather than investigating and resolving every aspect of an individual complaint. It was further explained that the IC’s findings represent a view rather than a final determination. The Applicant was informed that, if dissatisfied, they may raise a complaint with the Parliamentary and Health Service Ombudsman. They were also advised that, should they wish to pursue the matter further, they may seek independent legal advice, noting that the IC does not have the powers to assist with such proceedings. On the same day, the Reviewing Officer provided an outcome to the CPS.

10.On 2 September 2025, the Applicant responded expressing dissatisfaction with the review outcome.

11.On 3 September 2025, the Reviewing Officer explaining that the review outcome was the final stage in the IC’s complaints handing process and that they were of the view that there were no outstanding data protection issues

The Application

12.The Applicant initially appealed to the Tribunal using form GRC1 dated 14 October 2025. He subsequently applied to the Tribunal by way of form GRC3 dated 25 November 2026. He stated that the outcome he was seeking was as follows:

“I respectfully ask the Tribunal to:

1.Quash the ICO’s decision in its entirety.

2.Order the ICO to conduct a fresh investigation applying the correct legal principles.

3.Direct the ICO to investigate every component of my complaint that was ignored or omitted.

4.Direct the ICO to issue clear, unambiguous findings, without speculative or qualified language.

5.Declare that the ICO failed to carry out a lawful, fair, rational inquiry as required under the DPA 2018.

6.Require a reconsideration based solely on:

o accurate factual chronology o verified evidence o proper interpretation of UK GDPR and DPA 2018 o full assessment of cumulative harm o proper separation of CPIA and SAR obligations

7.Require the ICO to address all breaches, including those relating to accuracy, lawfulness, misuse of private information, purpose limitation, and unlawful dissemination .”

13.In his grounds for the Application, the Applicant stated:

“I am making this application because the Information Commissioner’s Office failed to properly investigate or determine multiple substantive elements of my data-protection complaint against the Crown Prosecution Service. The ICO relied on incomplete information, accepted demonstrably inaccurate CPS representations at face value, omitted crucial components of my complaint, and failed to address significant updates I provided during the investigation. The ICO’s outcome is therefore incomplete, procedurally unfair, and materially flawed.”

The strike-out application

14.The IC applied by way of form GRC5 dated 18 May 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”).

15.The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 36 to 40. In summary, these were as follows:

a.

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 DPA18 permits a Tribunal to make an order against the IC only if he has failed in some procedural respect.

b.

The IC has taken appropriate steps to investigate and respond to the Applicant’s complaint and has provided an outcome on 13 June 2025, a case review outcome on 14 July 2025 and a final review outcome on 1 September 2025. 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.

c.

It is clear that the Applicant disagrees with the outcome provided on his complaint. However, 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) .

d.

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.

16.I directed on 26 June 2026 that the Applicant should provide representations in relation to the strike out application by 13 July 2026 under Rule 8(4). The Applicant did not respond, but I am satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4).

Legal framework

17.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.”

18.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.

19.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.”

20.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."

21.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...

”.

22.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).

23.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).

24.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.” I n 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.”

25.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

26.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 13 June 2025, a case review outcome on 14 July 2025 and a final review outcome on 1 September 2025 . I consider that, when taken together, 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.

27.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.

28.The outcome sought by the Applicant is also, in effect, challenging the substantive outcome of the complaint to the IC. 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 quash a decision, 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.

29.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.

30.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.