First-tier Tribunal (General Regulatory Chamber)

NCN: [2024] UKFTT 720 (GRC)

 

Case Reference: FT-EA-2024-0105-GDPR

 

First-tier Tribunal

(General Regulatory Chamber)

Information Rights

Before

 

JUDGE MOAN

 

Between

 

ADAM WOJTECKI

Applicant

and

 

THE INFORMATION COMMISSIONER

Respondent

Decision made on the papers.

 

Decision:  The Applicant's application received on 1^st July 2024 to strike out the application of the Applicant is granted.  The appeal is struck out under Rule 8(2)(a) as an application that cannot be made to this Tribunal and under Rule 8(3)(c) on the basis that there is jo prospect of the application in being successful.

 

 

REASONS

 

1.      The Appellant lodged a notice of appeal to the Tribunal received on 5^th March 2024.  The appeal form stated that the Appellant was appealing the decision of the Information Commissioner because they refused to intervene as far as investigating alleged breaches of data protection.

2.      The application was somewhat confused as it referred to a Freedom of Information request named the Royal Mail as a third party.  Royal Mail are not a public authority as they are not owned by the government and so are not subject to the provision of FOIA and furthermore no complaint could be made to the Respondent about the Royal Mails refusal to answer any FOIA request on that basis.  What was apparent from the application in part and then by the email chain, is that the Appellant was complaining about a suspected data breach. He wanted to know who had accessed his business details, why and to claim compensation.

 

3.      It appears that the Appellant had made a complaint to the Respondent that he was unable to obtain information from Royal Mail as to the owner of a business mail account from which he had been sent a Penalty Charge Notice.

 

4.      The Appellant contacted both the Council that issued the penalty charge and Royal Mail.  He also made a complaint to the Information Commissioner on 21^st July 2023.  On 2^nd October 2023 the Respondent replied stating that the Council had made extensive investigations and had replied to the Appellant; the Respondent would not require any further action from them.  The Appellant then asked the Respondent to require the Royal Mail to give them information.  The Respondent replied indicated that they had no power to do so and on 1^st November 2023 closed their case.

 

5.      The Respondent made their strike out application on 1^st July 2024 on the basis that:

 

(i)                 Business addresses were not personal data and so not within the scope of the processing regulations.  As such a complaint could not be investigated about how his business address was obtained and used; and/or

(ii)              The complaint had concluded.  The nature of an application to the Tribunal regarding data processing is to expedite a delayed complaint outcome.  In this case the investigation had concluded.

 

6.      The Appellant has not responded to the strike out application.

 

7.      The Appellant does have a right to make an application under s166 of the Data Protection Act 2028 as regards a complaint to the Information Commissioner. However, the scope of an application under section 166 of the Data Protection Act 2018 is to achieve some progress in a complaint that has not been progressed.  Once an outcome is received, there is nothing left to progress.  The Tribunal has no powers to investigate the investigation of the Respondent or supervise their investigation as is suggested in the notice of appeal.  The "investigation" has been competed and reviewed, if indeed it can be categorised as an investigation as per the Respondent's submissions.

 

8.      As highlighted by the notice of appeal and the subsequent response from the Appellant, he seeks to for the tribunal to review the complaint outcome which is not an outcome that can be achieved under a section 166 application, albeit the appeal has not in any way referred to the application being a section 166 application.

 

9.      I considered it appropriate to conduct the review on the papers and without a hearing noting the nature of the application made and that both parties have fully responded to the issues.

 

The legal framework and powers of the Tribunal

 

10.  The Data Protection Act 2018 confirms the jurisdiction of the Information Commissioner for upholding information rights and data privacy. The Act provides limited scope for appeals to the Tribunal, proceedings in the County and the prosecution of offences before the criminal courts.  The courts and tribunals can only deal with those issues that Parliament has intended it to do so as set out by the legislation. 

11.  As stated on the Information Commissioner's website - complaints about data protection outcomes can be reported for review to the ICO's office or referred to the Parliamentary and Health Service Ombudsman.   There is no right of appeal to the First Tier Tribunal from a data protection decision save in the very limited circumstances permitted by the Act for example under s162 as regards penalty notices etc This is distinct from Freedom of Information requests where decisions of the ICO can be appealed to the First Tier Tribunal.   There also exists the right to apply for judicial review albeit that would relate to the reasonableness of decision-making discretion of the ICO rather than a disagreement with the decision itself, and noting the judicial review is costly and time-consuming.

12.  Since the DPA 18 came into force a person can apply to this Tribunal for an "order to progress complaints" under section 166.  That section provides –

166 (1) This section applies where, after a data subject makes a complaint under section 165 or Article 77 of the 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.

 

13.  Under section 166 DPA18, a data subject has a right to make an application to the Tribunal if they consider that the Commissioner has failed to take action in relation to their complaint.  

14.  The scope of s166 has already been considered by more senior Judges on a number of occasions and as such their views on the ambit of s166 are binding on this Tribunal.

15.  The Tribunal is limited in its powers to those given by Parliament as interpreted by the Upper Tribunal. As stated in Killock & others v Information Commissioner [2022] 1 WLR 2241 by Mrs Justice Farbey-

74. The remedy in s.166 is limited to the mischiefs identified in s.166(1). We agree with Judge Wikeley's conclusion in Leighton (No 2) that those are all procedural failings.  They are (in broad summary) the failure to respond appropriately to a complaint, the failure to provide timely information in relation to a complaint and the failure to provide a timely complaint outcome.  We do not need to go further by characterising s.166 as a "remedy for inaction" which we regard as an unnecessary gloss on the statutory provision.  It is plain from the statutory words that, on an application under s.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.

16.  The appropriateness of any investigative steps taken is an objective matter which is within the jurisdiction of this Tribunal. However, as stated in paragraph 87 of Killock, s.166 is a forward-looking provision, concerned with remedying ongoing procedural defects that stand in the way of the timely resolution of a complaint. This Tribunal is tasked with specifying appropriate "steps to respond" and not with assessing the appropriateness of a response that has already been given. It will do so in the context of securing the progress of the complaint in question.   The Tribunal has not powers to alter the outcome or any enforcement steps thereafter.

17.  More recently in 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.

"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)

18.  As initially indicated, this Tribunal does not have an oversight function in relation to the Information Commissioner's Office and does not hold them to account for their internal processes.

 

Analysis and conclusions

19.  The Appellant has made a confused application but it appears that he is not satisfied with the decision of the information Commissioner. That is not a decision that this Tribunal can review.  Quite apart from the argument about the information about his business address is personal data, the tribunal cannot look into a concluded complaint and revisit it.

20.  The Tribunal has no power to do what the Applicant is asking for in his applications.

21.  Section 166 Data Protection Act 2018 does not provide a right of appeal against the substantive outcome of an investigation into a complaint under s.165 Data Protection Act 2018.  Furthermore, the Tribunal does not have any power to supervise or mandate the performance of the Commissioner's functions.   

22.  There is no realistic prospect of the application succeeded in the circumstances and it would be a gross misuse of the resources of the Tribunal and the parties to allow that application to continue further.   Time spent on a hopeless application reduces those resources available to consider other applications. 

 

District Judge Moan sitting as a First Tier Tribunal Judge

2^nd August 2024