First-tier Tribunal (General Regulatory Chamber)

 

 

Neutral citation number: [2025] UKFTT 289 (GRC)

Case Reference: FT-EA-2024-0456-GDPR

Decision given on: 10 March 2025

 

First-tier Tribunal

(General Regulatory Chamber)

Information Rights

Before

 

JUDGE MOAN

 

Between

 

PETER WOOD

Applicant

And

 

THE INFORMATION COMMISSIONER

Respondent

Decision made on the papers.

 

Decision:  

The Respondent's application to strike out the application of the Applicant under Rule 8(2)(a) is refused.

The Respondent's application to strike out the application of the Applicant under Rule 8(3)(c) is granted.

 

 

REASONS

 

1.      The Applicant lodged an application notice to the Tribunal dated 21^st September 2024 but received on 10^th December 2024.  The form stated that the Applicant was unhappy with a decision of the Information Commissioner as regards a data complaint by not to exercising his powers of enforcement.  No copy of the complaint was enclosed with the application or indeed details of when the complaint was made or any action by the Commissioner.

 

2.      It transpired from the Respondent's response that the Applicant had made three complaints to the Commissioner.

 

3.      The first complaint was submitted on 19^th September 2022; an outcome was provided on 28^th November 2022 where the Commissioner did not consider that there had been an infringement of data processing legislation.

 

4.      The second complaint was made on 17^th July 2023; the Commissioner originally submitted that he did not receive that letter and a copy has not been provided to the Tribunal by the Applicant.    The Applicant then sent a follow up letter on 18^th October 2023 highlighting his dissatisfaction at receiving no response to his letter dated 17^th July 2023. 

 

5.      On 27^th October 2023, the Commissioner advised the Appellant to raise his data handling concerns in the first instance with the data handler and then return to the Commissioner when he had done so providing the supporting documentation.   There appeared to be no substantive response by the Applicant to this letter.

 

6.      The Appellant then raised a third complaint on 18^th November 2023 about how his previous complaints had been dealt with.  A response was provided on 30^th April 2024 to the effect that the Commissioner had replied within the appropriate timeframes.

 

7.      The Commissioner reviewed his previous decisions on 18^th June 2024 and wrote to the Applicant accordingly.

 

8.      Thereafter, it transpired that the letter dated 17^th July 2024 was found.  In December 2024, the Commissioner wrote to the Applicant and required copies of the correspondence between the Applicant and the data controller, indicating that the complaint could not be progressed without these documents.  The Appellant has not indicated whether he has provided those documents.

 

9.      The misfiling of the 17^th July 2023 letter started an unfortunate chain.  It was clear that very little (if any) investigation had taken place about the second complaint. The purported outcome letter dated 30^th April 2024 simply reiterated that responses had been made within time.  It was not an outcome to the complaint because the Commissioner had not received details of that complaint at that stage. 

 

10.  The real issue was the loss of the letter dated 17^th July 2023.  Had the Commissioner asked for another copy of that letter or the Applicant sent a copy to the Commissioner when the Commissioner indicated he did not have it, unnecessary delay and correspondence might have been avoided.  The Commissioner usually accepts complaints through his website and correspondence by email which provides an audit trail of recoverable correspondence.  It appears that the submission of handwritten letters may have contributed to the problem in a way that electronic correspondence may not.  However, not all applicants have the ability to complain by electronic means.

 

11.  Matters have moved on since the application was made. The Commissioner has re-reviewed the situation and written to the Appellant requesting information from the Appellant about his complaint.  That, in my judgment, is the correct resolution.  The ball is now firmly in the Applicant's court to provide information to the Commissioner, without which, no investigation can take place.  If he can get assistance to provide it electronically, that may assist; otherwise, he may be advised to send his correspondence in a tracked way through the Post Office.

 

12.  The Respondent has made an application to strike out the application on the basis that the Tribunal does not have jurisdiction to deal with the application.  That application is not appropriate in these circumstances as there is an ongoing investigation.  No doubt the application has prompted another review by the Commissioner which is when the missing complaint was found.

 

13.  The Respondent has also requested a strike out of the application on the basis that it has no realistic prospects of success.  The Applicant has responded to that application in a letter dated 19^th January 2025.  He catalogues what he perceives to be poor practice and errors on the part of the Commissioner and submits that they have made procedural failings.  He had made a serious of complaints to the Commissioner and was unhappy about the outcomes provided.  He said that the case should not be struck out because the application had been accepted by the Tribunal, the failures in the Commissioner's procedure and Charter, the Commissioner's missed opportunities to engage with him and that the Commissioner had not looked at the merits of his case.

 

14.  The Applicant misunderstands the remit the application that he has made and the powers of the Tribunal under section 166 of the Data Protection Act 2018.  The application he has made can only be made with regard to an ongoing complaint where the Commissioner has not responded within three months. The very limited order that the Tribunal can make is to direct the Commissioner to take steps to respond to it.  The Tribunal cannot consider any complaints about the Commissioner's practices, the steps taken or dissatisfaction with outcomes provided.  The Commissioner has himself now progressed the investigation and the Applicant must provide the necessary information about the complaint dated 17^th July 2023.  There is nothing for the Tribunal to do as the complaint has been progressed.  The Tribunal has no supervisory or appellate jurisdiction over the Commissioner.

 

15.  The Tribunal accepting the initial application is not a bar to striking out an application.  As already indicated, the Applicant did not provide the information required to consider the application properly and it was only when the Tribunal received the response of the Commissioner that the chronology became clear and helpfully, the revised position of the Commissioner to the complaint.

 

16.  Therefore, the Tribunal considers that there is no reasonable prospect of an order to progress being made now that the Commissioner has accepted and acted upon the 17^th July 2023 complaint.  The next step is dependant on the Applicant and not the Commissioner.  The first complaint had an outcome following an investigation and cannot be reviewed in any event.

 

17.  Continuing the application would be a waste of valuable resources, in circumstances where the need for an order has been removed.  The Applicant is urged to provide the information requested by the Commissioner.

 

18.  The application is struck out under Rule 8(3)(c) of the Rules.

 

 

District Judge Moan sitting as a First Tier Tribunal Judge

6^th March 2025