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	First-tier Tribunal (General Regulatory Chamber)
You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> McGuinness v Information Commissioner [2025] UKFTT 489 (GRC) (07 May 2025) URL: https://www.bailii.org/uk/cases/UKFTT/GRC/2025/489.html Cite as: [2025] UKFTT 489 (GRC)

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First-tier Tribunal
(General Regulatory Chamber)
Information Rights

		Decided without a hearing
		Decision Given On: 7 May 2025

Decision: The appeal is struck out under Rule 8(2) as the Tribunal has no jurisdiction to deal with the application

REASONS
1. An application was submitted to the Tribunal by email on 16^th September 2024. Although not specifically stated in the submitted GRC1 form, it amounts to an application under section 166(2) of the Data Protection Act 2018 ("DPA 2018") for the Tribunal to order the Information Commissioner ("the Commissioner") to revisit the outcome of the investigation of the Applicant's complaint (ICO Case Reference: IC-299306-X9P0).
2. In response to the application, the Respondent submits that the Tribunal has no jurisdiction to consider the application and/or the application has no reasonable prospect of succeeding, and it should therefore be struck out under Rule 8(2) and/or Rule 8(3)(c) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. The Applicant opposes the strike out.
3. The Respondent asserts that the remedies sought by the Applicant are not outcomes that the Tribunal can provide under section 166 DPA 2018 against the Commissioner, and section 166 only permits a Tribunal to make an order if the Commissioner has failed in some procedural respect.

Tribunal's powers to strike out the proceedings for lack of jurisdiction

4. The Tribunal must strike out the proceedings where there is no jurisdiction to determine the matters before it. Rule 8(2) reads as follows:

"8(2) The Tribunal must strike out the whole or part of the proceedings if the Tribunal–

(a) Does not have jurisdiction in relation to the proceedings or that part of them; and

(b) Does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them."

Tribunal's power to strike out the proceedings where no reasonable prospect of success

5. The Tribunal may strike out the proceedings where the Tribunal considers there is no reasonable prospect of the case succeeding. Rule 8(3)(c) provides:

"8(3) The Tribunal may strike out the whole or part of the proceedings if–

…

(c) the Tribunal considers there is no reasonable prospect of the appellant's case, or part of it succeeding."

Applications under section 166 DPA 2018

6. Section 165 DPA 2018 stipulates that a data subject has a right to make a complaint to the Commissioner if they consider that the processing of personal data relating to them infringes the UK General Data Protection Regulations ("UKGDPR"), and/or Parts 3 or 4 of the Data Protection Act 2018. Sections 165(1) and (2) provide as follows:

"165(1) Articles 57(1)(f) and (2) and 77 of the UK GDPR (data subject's right to lodge a complaint) confer rights on data subjects to complain to the Commissioner if the data subject considers that, in connection with personal data relating to him or her, there is an infringement of the UK GDPR.

(2) A data subject may make a complaint to the Commissioner if the data subject considers that, in connection with personal data relating to him or her, there is an infringement of Part 3 or 4 of this Act."

7. Once it is established that an individual's complaint falls within either section 165(1) or 165(2), then sections 165(3)-(5) set out what action the Commissioner must take in terms of the administration of the complaints process.
8. Section 166 of the DPA 2018 deals specifically with failures on the part of the Commissioner to progress and respond to the complaint as required by section 165. A data subject may, in the particular circumstances detailed within section 166(1), apply to the Tribunal for an order requiring the Commissioner to take appropriate steps to respond to the complaint (s.166(2)(a)) or to inform the complainant of the progress of the complaint, or of the outcome of a complaint, within a period specified by the order.
9. Section 166 DPA 2018 reads as follows:

"166(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.

(3) An order under subsection (2)(a) may require the Commissioner–

(a) to take steps specified in the order;

(b) to conclude an investigation, or take a specified step, within a period specified in the order."

10. As is made clear from these provisions, the Tribunal may only exercise its powers under section 166(2) if one of the 3 conditions cited within section 166(1) exist. There have been a number of appeal decisions which have considered the scope of section 166, and it is well established that the Tribunal's powers are limited to procedural issues, rather than the merits or substantive outcome of a complaint. Some key decisions are as follows:
11. In Killock v Information Commissioner [2021] UKUT 299 (AAC), The Upper Tribunal stated at paragraph 74:

"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 s.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 s.166 towards a decision on the merits of the complaint must be firmly resisted by Tribunals."

12. In the High Court in R (Delo) v Information Commissioner [2022] EWHC 3046 (Asmin), Mostyn J, at paragraph 57, commented upon the handling of complaints by the Commissioner as follows:

"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."

13. Mostyn J's decision in Delo was upheld by the Court of Appeal ([2023] EWCA Civ 1141), with Warby LJ, commenting as follows at paragraph 80:

"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."

14. The decision of the Upper Tribunal in Cortes v Information Commissioner (UA-2023-001298-GDPA), which applied both Killock and Delo in confirming that the nature of section 166 is that of a limited procedural provision only. Judge Wikeley commented at paragraph 33 as follows:

"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). It will do so in the context of securing the progress of the complaint in question" (Killock and Veale, paragraph 87). 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."

15. The Applicant in the present matter made a Subject Access Request ("SAR") to the Scout Foundation Northern Ireland ("SFNI") on 16^th October 2023. On 19^th March 2024, SFNI responded to the SAR, stating that all of the data that had been requested had been provided and that there was no further documentation to be supplied. Holding the view that SFNI was withholding some of the requested data, the Applicant subsequently made a complaint to the Commissioner by post. That complaint and supporting material was received by the Commissioner on 3^rd April 2024.
16. On 8th July 2024, having reviewed all of the evidence provided by the Applicant and SFNI, the Commissioner contacted the Applicant by email to issue an outcome to the investigation of the complaint. The view taken by the Commissioner was that SNFI had complied with its data protection obligations and fulfilled the Applicant's request when they responded to the SAR and confirmed that there was no further documentation to be provided.
17. Unfortunately, that emailed outcome was not received by the Applicant due to an error in the typed email address, and the Applicant consequently contacted the Commissioner for an update in relation to their complaint on 23^rd July 2024 and 22^nd August 2024. The outcome was resent to the Applicant on 22^nd Augst 2024 together with an apology for having sent to it previously to an incorrect address.
18. In essence, the Applicant says that the Commissioner has failed to take appropriate steps to resolve his complaint, and he seeks a different outcome to the one he received. In his application to the Tribunal, he states that he wishes the Commissioner to be ordered "to take such steps so as to provide all the data requested…in relation to the original request for information.".
19. Whilst the Applicant may not agree with the decision of the Commissioner, he has nonetheless been provided with an outcome to his complaint. Section 166 DPA 2018 does not permit the Tribunal to interfere with such decisions, and the ambit of this section is confined to matters of a procedural nature, where an outcome has not already been provided. I therefore find that the Tribunal has no jurisdiction to deal with this application.
20. The proceedings are struck out under Rule 8(2).

Signed

Judge Armstrong-Holmes

Date: 1^st May 2025