Raymond A Nash v The 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 against the Royal Institution of Chartered Surveyors (“RICS”) regarding the use by RICS of the Legal Professional Privilege (“LPP”) exemption in refusing the Appellant’s Subject Access Request (“SAR”) dated 29 August 2024. The complaint, was submitted to the Information Commissioner (“IC”) on 2 January 2025 and was dealt with under reference IC-2559130-J0K7.

2. On 22 May 2025, the IC’s case officer wrote to the Applicant and advised him that the IC’s view, having considered the information available, was that RICS had complied with its data protection obligations and provided a full and timely justification for their use of the LPP exemption.

3. On 8 June 2025, the Applicant emailed the IC asking it to deal with his representative, which the IC acknowledged the following day. The IC and the Applicant’s representative engaged in correspondence in June 2025 about the exemption used by RICS as the Applicant’s representative maintained that litigation privilege is not available, and the IC that RICS relied on LPP, not litigation privilege.

4. On 23 June 2025, the IC advised the Appellant’s representative that he could apply for a case review, which he did the same day.

5. On 22 July 2025, the IC wrote again following the case review. The reviewing officer stated that they were satisfied that the case officer had dealt with the complaint appropriately. The reviewing officer explained that LPP encompasses both litigation privilege and legal advice privilege. They confirmed that in this case legal advice privilege applies, protecting confidential communications between client and qualified legal adviser for the purposes of obtaining legal advice, which does not require the existence or contemplation of legal proceedings. The reviewing officer reminded the Applicant’s representative of the right to take legal action under data protection legislation and complain to the Parliamentary and Health Service Ombudsman (“PHSO”). The Application

6. The Applicant’s representative applied to the Tribunal by way of form GRC1 dated 10 June 2025 appealing the IC’s letter dated 22 May 2025. He stated that the outcome he was seeking was as follows: “ that RICS provide the documents it used to remove Mr Nash from post. They are not privileged and they are expressly to be released under their own rules.”

7. In his grounds for the Application, the Applicant’s representative stated: “The Regulator said: Also, as with your previous request, there are exemptions to the right of access and following a careful review of the documentation for your latest request, the following exemptions under the Data Protection Act 2018 have been applied: • Schedule 2, Paragraph 7, which states that personal information is exempt from the right of subject access when the disclosure of the information would prejudice a regulatory function performed in the public interest • Schedule 2, Paragraph 16, which states that personal information is exempt from the right of access where there is a duty of confidentiality, or if sharing such information would compromise the right of privacy of a third party. • Schedule 2, Paragraph 19 of the Data Protection Act 2018 exempts disclosure of the personal information of legal profession privilege • Schedule 2, Paragraph 7 There is no such provision in Schedule 2 Paragraph 7 • Schedule 2, Paragraph 16 There is no third party that has not openly been identified by the RICS/DRS • Schedule 2, Paragraph 19 there is no legal professional privilege. These are disciplinary proceedings and not litigation or in contemplation of litigation. See the attached paper from Pinsent Masons.” The strike-out application

8. The IC applied by way of form GRC5 dated 3 September 2025 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”).

9. The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 25 to 29 and 44 to 46. In summary, these were as follows: a. the Tribunal has no jurisdiction to determine the present application, as the IC has already determined the Applicant’s complaint when he sent an outcome to the Applicant on 22 May 2025. The IC has taken steps to comply with the procedural requirements set out in section 166(1) of the DPA 2018, and there is therefore no basis for the Tribunal to make an order under section 166(2) DPA 2018. b. The present application shows no discernible grounds that would warrant the Tribunal exercising its powers under section 166(2) of the DPA 2018, given that the IC took appropriate steps and provided an outcome to the Applicant’s complaint on 22 May 2025, with the decision upheld on 22 July 2025. There is therefore no reasonable prospect of persuading the Tribunal to make any form of order pursuant to section 166(2) of the DPA 2018. c. The IC takes the view that all appropriate steps have been taken and that the limited circumstances for the Tribunal to make an order in this regard have not been met and asks the Tribunal, in striking out the application, to direct itself as per the principles outlined in Smith. d. It is clear from the grounds in support of the application that the Applicant does not agree with the outcome of their complaint, however, as the Tribunal has already established, section 166 DPA 2018 does not provide a mechanism by which Applicants can challenge the substantive outcome of a complaint. The relief available from the Tribunal on an application under section 166 only applies where it is satisfied that the IC has failed in some procedural respect to comply with the requirements of section 166(1) , limited solely to those orders that are set out in section 166(2) . e. If the Applicant wishes to seek an order of compliance against the controller for breach of his data rights, the correct route for him to do so is by way of separate civil proceedings in the County Court or High Court under section 167 of the DPA 2018.

10. The Applicant provided a Reply to the Response dated 10 September 2025, which deals with the strike-out application as well as the substantive response, so I am satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4). The points made by the Applicant, in summary, were as follows: a. The appropriate steps, applying the correct rules and matching the facts to those was not done. b. The outcome published by the IC lacks substance because plainly the IC did not follow the rules that it had identified. c. The IC’s principal obligations are to address and deal with every complaint by arriving at and informing the complainant of some form of “outcome”, having first investigated the subject matter “to the extent appropriate” in the circumstances. The IC did identify the criteria required and then failed to apply the facts to the criteria. An appropriate extent of dealing with this issue was to simply ask the RICS to prove litigation was in contemplation. The IC ignored the obligation of the RICS to prove that it is entitled to rely on LPP. d. There was no conclusive determination or ruling on the merits that brought an end to the complaint. The IC never properly concluded the matter. This is simply a matter of seeking the documents on which the RICS relied. Legal framework

11. 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.”

12. 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.

13. 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.”

14. 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."

15. 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... ”.

16. 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).

17. 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 (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.”

18. 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.” In 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.”

19. 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

20. 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 22 May 2025 with a further response on 22 July 2025 following a review. I consider that the response dated 22 May 2025 was in fact an outcome to the complaint, because the IC has no power to compel compliance by RICS and it took the steps which it considered to be appropriate to resolve the matter at that time. It also explained the difference between the LPP exemption relied upon by RICS and legal professional privilege. The IC concluded that RICS had explained and fully justified their use of the LPP exemption in a full and timely way and had applied it correctly. The Applicant appears to me to have misunderstood the legal distinction between legal advice privilege and litigation privilege, both of which fall under the umbrella of LPP, and conflated the two. The legal argument provided in support of the Applicant’s position appears to be a generic document produced by a firm of solicitors, rather than a legal argument which deals with the application of privilege in these particular circumstances.

21. Even if I am wrong on this, I am satisfied that when taken together with the response dated 22 July 2025, 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.

22. It appears to me therefore that there are no further appropriate steps 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.

23. The outcome sought by the Applicant in the Application is disclosure by RICS of the documents it has withheld. The Tribunal has no power under section 166 to direct RICS to make disclosure to the Applicant. Its powers are limited to ordering the IC to progress its handling of the Applicant’s complaint.

24. The outcome sought by the Applicant is also, in effect, challenging the substantive outcome of the complaint to the IC. 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 agree with the IC’s position that it 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 outcomes sought.

25. 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.

26. 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)(a) because there is no reasonable prospect of them succeeding.