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Judicial Summary

DATA PROTECTION (93.9)

The First-tier Tribunal (FtT) dismissed the appellant鈥檚 application for an order under section 166 of the Data Protection Act 2018 (DPA 2018) that the Information Commissioner should take further 鈥渁ppropriate steps鈥� to respond to his complaint that the ICO (i.e. the Information Commissioner in his capacity as data controller) had failed to comply with the UK General Data Protection Regulation (UK GDPR). The Upper Tribunal (UT) considers in detail the effect of the case law in section 166 cases and decides to dismiss the appeal, holding:-

(1) Insofar as they differ, the approach of the Upper Tribunal in Killock and Veale v Information Commissioner [2021] UKUT 299 (AAC), [2022] AACR 4 is to be preferred to that of the High Court in R (Delo) v Information Commissioner [2023] 1 WLR 1327. This is consistent with the Court of Appeal decision in Delo [2024] 1 WLR 263.

(2) Applying Killock and Veale, the FtT鈥檚 decision should have contained an explicit direction that it needed to consider for itself, applying an objective test, whether it was appropriate for the Commissioner to take further steps to respond to the appellant鈥檚 complaint. However, in practice that was the approach the FtT had taken and there was no material error of law.

(3) In applying that objective test, the FtT had rightly given weight to the view of the Commissioner who, as the expert regulator, is entitled to respect as to the nature and extent of the investigation (if any) that is appropriate in a particular case.

(4) In the absence of evidence of actual bias (or other improper conduct) by the Commissioner, the FtT should in principle afford the Commissioner the same respect in cases where the Commissioner is investigating his own actions as ICO as the FtT does when the Commissioner is investigating the actions of third party data controllers.

(5) The appellant鈥檚 argument that a different approach is required because the Commissioner may be 鈥榓pparently biased鈥� in such cases did not succeed.

(6) The FtT had not erred in law in concluding that there had been no actual bias or improper conduct by the Commissioner in this case.

(7) It was unnecessary to decide whether the duty of candour applied to the Commissioner when responding to a section 166 application as (whether it did or not) the FtT had not erred in proceeding without ordering further disclosure or witness statements.

(8) The FtT had not erred in concluding that the appellant had been properly informed of the outcome of his complaint.

(9) There had been no material unfairness as a result of any failure to comply with the overriding objective.

(10) The FtT had provided adequate reasons for its decision.

(11) It had emerged as a result of the appeal to the UT that there were shortcomings in the Commissioner鈥檚 handling of the appellant鈥檚 complaints about the ICO, in particular that one of the appellant鈥檚 emails had been overlooked. If the appellant had put his section 166 application differently, it would have been open to the First-tier Tribunal to make an order under section 166 that the Commissioner respond to that email. However, as it was, the appellant鈥檚 application focused on the merits of the Commissioner鈥檚 decision in the appellant鈥檚 case and thus should have been pursued by way of judicial review of the Commissioner鈥檚 decision. The shortcomings identified therefore had no material impact on the outcome of the present appeal.

(12) The Upper Tribunal directed that the decision be placed before the Commissioner personally to consider the Tribunal鈥檚 observations in relation to the shortcomings identified.