Трибунал Великобритании: спор о доступе к данным нельзя пересмотреть через процедуру ст. 166

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 Remote Technology Services Limited (“RTS”) regarding the response to his Data Subject Access Request (“DSAR”). The complaint was submitted to the Information Commissioner (“IC”) on 20 June 2025 and was dealt with under reference IC-396541-H3J4.

2.On 21 July 2025 and 26 September 2025, the Applicant sent updates in relation to his complaint, advising that RTS remained non-compliant.

3.On 2 October 2025, the Applicant was informed that, due to the high volume of complaints received by the IC, his complaint was expected to be allocated within 11–13 weeks. The Applicant subsequently requested that the matter be expedited, which was agreed.

4.On 11 November 2025, the IC’s case officer wrote to the Applicant and concluded that RTS had complied with its obligations under the UK GDPR. It was found that there was no evidence to suggest that personal data had been unlawfully withheld or that exemptions had been applied in a blanket manner. The case officer also noted that aspects of the information requested by the Applicant were likely to fall within applicable exemptions, including those relating to management forecasting. It was confirmed that all concerns raised by the Applicant, including the use of exemptions and the application of a time extension had been reviewed and that, in the absence of evidence to the contrary, the organisation’s handling of the request was compliant. The case officer advised that the IC would not be taking any further action on the case, although the complaint was recorded for intelligence purposes. They also advised the Applicant of his right to seek a court order and to take independent legal advice.

5.On 11 December 2025, the Applicant requested clarification on the case officer’s evaluation of the complaint evidence and expressed their disagreement with the response provided by RTS.

6.On the same day, the case officer reviewed the Applicant’s further correspondence and wrote to the Applicant maintaining that RTS had complied with its legal obligations. It was clarified that the reference to the management forecasting exemption was non-exhaustive and that much of the requested information was either exempt, including under legal professional privilege, or had not been located. The case officer also noted that the request lacked a clear timeframe and that only reasonable and proportionate searches were required and confirmed that there is no obligation to provide an itemised list of withheld information or specify exemptions relied upon. An administrative error regarding the complaint date was corrected, and the case officer confirmed that no regulatory concerns had been identified, advising the Applicant of their right to seek a judicial remedy and request a review.

7.On 30 January 2026, the Applicant requested a case review and the request was acknowledged on 9 February 2026.

8.On 24 February 2026, the IC’s reviewing officer wrote to the Applicant. They concluded that the case officer had handled the complaint appropriately and in line with IC procedures. They found that RTS had carried out reasonable and proportionate searches and had disclosed the personal data to which the Applicant was entitled, while lawfully withholding certain information under applicable exemptions. The reviewing officer addressed the Applicant’s concerns regarding the scope and timeframe of the SAR, the application of exemptions, and comparisons with disclosures made by another organisation, confirming that no evidence had been provided to demonstrate non- compliance. Although minor administrative errors were identified in previous correspondence, these were not considered to have affected the substance of the outcome. The reviewing officer therefore upheld the original assessment, confirmed that no further regulatory action would be taken, and advised the Applicant of their right to seek a judicial remedy or pursue a complaint with the Ombudsman.

The Application

9.The Applicant applied to the Tribunal by way of form GRC3 dated 2 February 2026 supported by a large volume of documentation. He stated that the outcome he was seeking was as follows:

“The Appellant respectfully asks the Tribunal to:

(a)

admit this appeal as properly constituted on a protective basis, including by granting any necessary extension of time;

(b)

set aside the Information Commissioner’s position and reasoning, as communicated by correspondence;

(c)

stay or hold proceedings in abeyance pending the ICO’s internal review;

(d)

invite the Information Commissioner to confirm, within a reasonable period, the status of the internal review requested on 30 January 2026 and to indicate an anticipated timeframe for its conclusion; so as to avoid procedural prejudice arising from open-ended delay;

(e)

remit the matter to the Information Commissioner for reconsideration, in accordance with the Tribunal’s findings, applicable law, and proper evidential engagement;

(f)

permit amendment or particularisation of the grounds thereafter without prejudice, following completion of the internal review and/or the provision of further reasons; and (g)

grant such further or other relief as the Tribunal considers just.

10.The Appellant does not invite the Tribunal to determine the substantive lawfulness of the controller’s DSAR compliance at this stage but seeks only preservation of appeal rights and appropriate case management pending completion of the internal review .

11.In his grounds for the Application, the Applicant, in summary, identified the following errors by the IC:

a.

The IC failed to engage with concrete evidence of non-disclosure demonstrating that RTS failed to disclose personal data within Article 15 UKGDPR.

b.

The IC accepted that RTS conducted reasonable and proportionate searches without reconciling that conclusion with the extreme paucity of disclosed material and did not grapple with omissions and discrepancies.

c.

The IC proceeded on the basis that substantial categories of material were “likely exempt”, including by reference to legal professional privilege and management forecasting. This was legally flawed because the IC failed to explain how these exemptions applied and “ substituted speculative reasoning for an assessment of the controller’s actual compliance ”.

d.

The IC failed to assess whether the material withheld under the management information exemption was genuinely processed for forecasting and whether disclosure would prejudice RTS’s business. It also failed to assess whether the exemption was applied on a document-specific basis. The Applicant noted that “ The withheld material is retrospective and operational in nature and does not meet the statutory test ”.

e.

The IC failed to examine whether the statutory conditions for the negotiations exemption were met and failed to assess whether any negotiations were underway, imminent or realistically contemplated when the Applicant was not made aware of any such negotiations. The IC’s acceptance of RTS relying on this exemption was “ inadequately reasoned and legally unsafe ”.

f.

The IC failed to grapple with the fact that the DSAR had imposed no temporal restriction but RTS restricted its searches to a four month period.

g.

The IC’s reasoning was “ internally inconsistent ” because he:

“(a)

accepted that searches were reasonable while accepting disclosure of only six documents;

(b)

reconstructed and accepted multiple exemptions not invoked by the controller; notwithstanding that those exemptions had not been properly invoked, particularised, or evidenced by the controller within the statutory timeframe; and •

(c) concluded there was no blanket reliance on exemptions while accepting category-wide withholding.”

h.

The IC referred to a submission dated 11 November 2025, which does not exist, undermining confidence in the evidential basis of the reasoning.

i.

The IC’s approach “accepted the controller’s narrative without scrutiny, treated exemptions as applicable retrospectively, failed to assess known systems of record, proceeded on an incorrect chronology, discounted cross-controller contradictions; and asserted no further regulatory action was required. These errors materially undermine the integrity and safety of the reasoning process relied upon .”

j.

The IC failed to address the unlawful use of third-party personal data as a blanket basis for redaction and disclosure. In particular, he failed “ failed to assess whether less intrusive and proportionate measures—such as partial redaction, anonymisation, or summarisation—could have enabled disclosure, whether redactions were applied granularly and lawfully on a document-by-document basis, and whether the resulting disclosures remained intelligible and meaningful as required by Article 15(1). By endorsing a consent-based justification without scrutiny and/or evidence of a proper balancing exercise, the Commissioner materially misdirected himself in law and failed to apply the statutory test, rendering the integrity and safety of the reasoning process relied upon legally unsafe”.

k.

The IC failed to address the fact that RTS and another organisation disclosed different fragments of the same factual records. The Applicant stated “ the failure to engage with them constitutes a material investigative omission.”

The strike-out application

12.The IC applied by way of form GRC5 dated 16 June 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”).

13.The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 34 to 36. 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.

b.

The IC accepts that there was a delay in initially communicating with the Applicant in relation to their complaint. However, as the above summary demonstrates, the IC has taken appropriate steps to investigate and respond to the Applicant’s complaint, providing them with an outcome on 11 November 2025 and review outcome on 24 February 2026. Accordingly, it is respectfully submitted that the IC has taken steps to comply with the procedural requirements set out in section166(1) of the DPA18, and there is therefore no basis for the Tribunal to make an order under section 166(2) DPA18

14.On 22 June 2026, Judge Heald directed that the Applicant should provide representations in relation to the strike out application within 14 days under Rule 8(4)

15.The Applicant provided a Rule 24 Reply and response to the strike out application dated 26 June 2026 so I am satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4). The Applicant’s response was 51 pages long and appears to have been drafted with the assistance of AI. The key points made by the Applicant, in summary, appear to me to be as follows:

a.

The appeal concerns whether the IC arguably failed to take one or more “appropriate steps” within the meaning of section 166 before determining that no further action was required. The Applicant contends that identifiable procedural omissions and deficiencies arose during the IC’s investigation and subsequent Case Review, with the consequence that it is reasonably arguable that one or more "appropriate steps" required by sections 165 and 166 DPA 2018 were not taken before the Case Review was reached.

b.

The appeal is directed to the “ legality, integrity and procedural adequacy of the Commissioner's investigative and reasoning process .”

c.

The Applicant accepts that in the review response dated 24 February 2026 the IC “ had, for the first time, provided the final review reasoning upon which the present Rule 8 application now relies ”. The Applicant was not in a position to assess what had and had not been done until that point.

d.

The issue before the Tribunal is whether the appeal raises an arguable question as to the manner in which the IC exercised its statutory discretion to the extent appropriate and whether the exercise of that discretion was procedurally adequate for the purposes of sections 165 and 166 DPA 2018.

e.

The material omissions/procedural defects in question identified by the Applicant were as follows:

•

In light of parallel statutory disclosure processes concerning the handling of the Applicant’s data by RTS and another organisation (the subject of a separate application to the Tribunal which was subsequently struck out), the IC should have considered whether material evidence emerging from those parallel processes warrants further investigative evaluation before taking no further action on this complaint.

•

An original copy of the Applicant’s DSAR had not been provided to the IC. The IC summarised what it understood this to contain. The IC ought to have first established whether that document already formed part of its complaint file. This identifies an arguable gap in the IC’s reasoning process and suggests that appropriate procedural steps were omitted.

•

In its case review, the IC did not explain “ the evidential standard reflected in the expression "clear evidence", what the Commissioner meant by the "absence of clear evidence" in the circumstances of the complaint, how that standard was applied to the documentary material relied upon by the Applicant during the complaint and review process, why that material was considered incapable of displacing the controller's position, or what additional evidence or material would have been required before the Commissioner considered that further investigative steps were warranted.”

The Applicant describes this as questions

“concerning the transparency, intelligibility and procedural adequacy of the Commissioner's reasoning process

”.

•

The IC did not consider the evidence supplied by another organisation through a separate access request and complaint in evaluating this request. The Applicant states “ Where documentary material capable of bearing upon the complaint is already before the Commissioner, section 165 DPA 2018 requires a reasoned evaluation of that material before those assurances can properly be treated as determinative. The Case Review does not explain why the documentary material relied upon by the Applicant was considered incapable of displacing the controller’s position or qualify those assurances ”.

•

The IC’s reasoning that material was “ likely to be exempt ” did not explain how he independently evaluated the applicability of the claimed exemptions, what investigative steps were undertaken to verify the controller's reliance upon them, whether the withheld material itself was examined, or upon what evidential basis the IC concluded that those exemptions should be accepted f.

The Applicant argues that these deficiencies should be considered cumulatively in assessing whether appropriate steps were omitted.

g.

The summary disposal of the related application concerning another organisation (dealt with by the Tribunal under reference FT/EA/2026/0039/GDPR and struck out) should not be a substantive basis for striking out this application. Similarly the case law relied on by the IC described as outcomes from other litigation, is not determinative of this application. Accordingly the Applicant has not sought to address the case law raised in the Response.

Legal framework

16.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.”

17.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.

18.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.”

19.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."

20.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...

”.

21.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).

22.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).

23.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.”

24.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

25.I have decided to deal with this matter without a hearing, despite the fact that the Applicant stated in his GRC3 that they wished the matter to be dealt with at a hearing.

26.The reason why I have done so is that the issue I need to determine at this stage is a straightforward one, namely whether an outcome has been issued and whether the Tribunal has jurisdiction to hear the Applicant’s Application. The Applicant has already filed extensive written submissions and documentary evidence addressing the Tribunal on these points. I am not persuaded that additional oral evidence from the Applicant is required in order fairly to determine the issue of whether there was an outcome, whether appropriate steps were omitted or jurisdiction, or indeed would add anything substantive to the issues already ventilated. The IC has not at this stage provided any witness evidence, so cross-examination would be inappropriate. I have taken 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; ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; and using any special expertise of the Tribunal effectively. While I recognise that the fair determination of this case is very important to the Applicant, I do not consider it a proportionate use of resources to require an oral hearing to determine the issues raised in the strike-out application. I note also that Rule 32(4) permits the Tribunal to strike out a case under Rule 8 without an oral hearing.

27.Turning to the questions before the Tribunal, 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 11 November 2025 and a further response following review on 24 February 2026.

28.I am satisfied 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.

29.The steps identified as omitted by the Applicant in his Reply appear to take issue with the way in which the IC exercised his discretion as to how to deal with complaints. In my view, as contemplated in the extracts from Smith and Cortes above, challenges to the legality or adequacy of the investigation or the steps which the IC chose to take in exercising its discretion would be more properly dealt with by way of judicial review than by determination of a section 166 application.

30.It appears to me therefore that there are no further appropriate steps, individually or cumulatively, 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.

31.The only orders which can be made on a section 166 application are those set out in section 166(2) The outcome sought by the Applicant is, in effect, challenging the substantive outcome of the complaint to the IC by arguing that it should be remitted to the IC for reconsideration and “proper evidential engagement”. 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 note the IC 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 outcome sought.

32.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.

33.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.