Mark Farr v 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 dated 17th April and 21 st May 2025. The complaints submitted to the Information Commissioner (“IC”) were dealt with under references RCKS-2025-G1B9 and RCKS-2025-C1B2. The Applications

2. The Applicant applied to the Tribunal by way of form GRC1 dated 23rd October 2025 (appeal no 0392).

3. The outcome he was seeking was as follows: a. For the Tribunal to substitute the notice (RCKS-2025-G1B9 of 3 rd October 2025) with one which ordered the Respondent to take steps in relation to his request for information; b. For the Commissioner to confirm whether the law firm DAC Beachcroft was a data processor or joint controller and whether Article 13 or 14 [ presumably of the UK General Data Protection Regulation (“UK GDPR”)] were applicable; c. For the Tribunal to make an order requiring the data controller to provide the Appellant with relevant privacy information required under Article 13(3) of the UK GDPR or for DAC Beachcroft to provide privacy information under Article 14 UK GDPR.

4. The Appellant provided grounds which ran to 23 pages. In those grounds he stated that he had received an outcome letter in respect of matter RCKS-2025-C1B2 on 26 th September 2025 and an outcome letter in respect of matter RCKS-2025-G1B9 on 3 rd October 2025.

5. He was dissatisfied with the outcome letters as the Respondent had failed “to take appropriate steps to respond to the complaint” pursuant to s166(1) (a) DPA 2018. It was his case that a procedural error was made by the Respondent in its investigation because it had not investigated every part of the complaint.

6. He stressed that this was not a merits-based application but an application for a finding that the Respondent had failed to take appropriate steps to respond to the complaint.

7. The Applicant then made a second appeal to the Tribunal by way of form GRC1 dated 27 th October 2025 (appeal no 0399). The application was near identical to the earlier one and is understood to be an attempt to perfect or complete the earlier application. The strike-out application

8. The IC applied, by way of an email dated 21 st November 2025, to strike out the Applications on the basis that the Tribunal has no jurisdiction to consider them under Rule 8(2)(a).

9. The reasons which the IC gave for striking out the application were as follows: a. The applications arise from the same set of facts as previous applications to the Tribunal. Five of those were struck out on jurisdictional grounds and the sixth was withdrawn. The applications before the Tribunal refer to matters for which the Applicant has received an outcome. b. The current applications fall outside the limited remit of s166 DPA 2018 and the Tribunal therefore lacks jurisdiction to consider them. c. The Tribunal is invited to refuse to issue the incomplete application FT/EA/2025/0399 and to strike out both applications without a hearing and without requiring any response from the Respondent.

10. The Applicant provided a response to the strike out application on 24 th November. He stated that the outcomes set out at paragraphs 3b and 3c above should be struck out but that: “ For the Tribunal's benefit, the appellant respectfully requests only such outcomes as will be required to progress complaints he believes have not been investigated to the appropriate extent by the Commissioner. These matters will be clarified in the following on correspondence .”

11. Given that further correspondence was alluded to, on 1 st December 2025 Judge Harris directed that the Appellant should provide representations in relation to the strike out application by 17 th December 2025 under Rule 8(4). He responded in order to confirm that he wished to consolidate the two applications and to make the following representations: a. The Tribunal has jurisdiction to consider the matter, as is supported by case law. b. He cited the case of Delo v Information Commissioner (no citation was given but I include the citation in the footnote) as authority for the point that “an appellant will always have the right to submit an application under [2023] 1 WLR 263 s.166 DPA18 and the Tribunal will always have the jurisdiction to consider the application”. c. He cited a paragraph from Smith v Information Commissioner (no citation was given but I include the citation in the footnote) as support for the contention that, just because a regulatory outcome had been received, that does not automatically mean that there is no jurisdiction for the Tribunal to consider whether all appropriate steps were taken: [2025] UKUT 74 (AAC) “I do not read Mostyn J’s judgment at [130]-[131] as saying that, just because the Commissioner has provided an ‘outcome’, there is no scope at all for an application to the First-tier Tribunal under section 166 . Rather, he is making the same point that the Upper Tribunal made in Killock and Veale, i.e. that the scope for finding that an “appropriate step” has been omitted once an ‘outcome’ has been produced is limited.” d. The Respondent has erred in progressing the complaint made on 17 th April 2025 rather than the one made on 21 st May 2025. There being key differences between the two, the Commissioner cannot have investigated all parts of the complaint. Legal framework

12. 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 - (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.”

13. 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.

14. 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.”

15. In the case of Killock and Veale v Information Commissioner [2021] UKUT 299 (AAC)/[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."

16. 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... ”.

17. 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).

18. The decision of the Upper Tribunal in Cortes v Information Commissioner (UA-2023-001298-GDPA) applied both Killock and Delo and 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 (paragraph 33). 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.”

19. 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.”

20. Paragraph 85 of Killock reads as follows: “ 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

21. The Applicant accepts that the Respondent has provided an outcome to his complaint. The Application relates to his dissatisfaction with the quality of that outcome. He states that the Respondent did not take his second complaint, dated 21 st May 2025, into consideration.

22. I have seen an undated letter from the Respondent to the Applicant which says: I understand that you subsequently wrote to the ICO on 21 May 2025 to raise a complaint about the outcome of this SAR. We are now writing to you in response to that complaint. … I have reviewed both your complaint and the response you received from the ICO dated 16 May 2025, in relation to RCSC-2025-T9G9. I am satisfied that the ICO has complied with data protection regulations and that your SAR has been appropriately fulfilled. You have suggested that the IA team misinterpreted your SAR. Having reviewed this, I am satisfied that your request was properly understood and fulfilled. I also note that you have amended your original request and annotated areas where you believe information has not been disclosed or addressed. To further respond to your complaint, please see our comments below. …

23. I am satisfied that this demonstrates that the Respondent has given clear consideration to the later complaint and, in doing so, it has considered whether any other appropriate steps should have been taken to progress the complaint.

24. It is my view that this is sufficient to demonstrate that the Respondent has complied with the requirements of section 165(4). It appears to me therefore that there are no further appropriate steps which the Respondent ought reasonably to take to progress the complaint.

25. Following the authorities set out above, and taking particular note of paragraph 85 of Killock , I am satisfied that the Respondent, as the expert regulator, was best placed to determine how the matter should be investigated and has done so. That the Applicant is unsatisfied with the quality of the investigation is not an issue over which this Tribunal has jurisdiction. As is observed in the Cortes case, there is an important distinction to be drawn between the narrow jurisdiction conferred on this Tribunal by s166 and the much wider jurisdiction conferred on the High Court under the provisions of judicial review.

26. The Tribunal has no power under The Tribunal does not have power under section 166 to direct the Respondent to amend its response. section 166 to consider the merits or substantive outcome of a complaint.

27. 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.

28. There having been an outcome, which determined the Applicant’s complaint, I find that the Tribunal has no jurisdiction to hear this matter in respect of ground (a). Grounds (b) and (c) are withdrawn on the basis that the Applicant accepts that they are outside the powers of this Tribunal. On that point I agree.

29. The proceedings are therefore struck out under Rule 8(2)(a) because the Tribunal does not have jurisdiction to deal with them.