Eryk Jan Grzeszkowiak v The Information Commissioner
[2024] UKFTT 574 (GRC)
Gilbert Robertson v The Information Commissioner
19 July 2024
[2024] UKFTT 630 (GRC)
First-tier Tribunal
Someone complained to the Information Commissioner about not getting their data. The Commissioner investigated and gave a decision. The person didn't like the decision and tried to appeal it. The court said the appeal was about the wrong thing – you can only appeal if the Commissioner didn't follow the rules properly, not if you don't like the decision itself.
Key Facts
- •Gilbert Robertson appealed to the First-tier Tribunal (FTT) under section 166 of the Data Protection Act 2018 (DPA) after a complaint to the Information Commissioner Office (ICO) regarding access to his personnel data.
- •The ICO investigated and instructed the MOD to review the handling of Robertson's Subject Access Request (SAR).
- •The ICO informed Robertson that further complaints should be addressed to the MOD.
- •The Commissioner applied to strike out Robertson's appeal.
Legal Principles
A data subject can complain to the Commissioner about personal data processing infringing the GDPR or DPA.
Section 165(2) DPA
A data subject can apply to the Tribunal if the Commissioner fails to take certain procedural actions (failing to respond, failing to provide timely information about progress or outcome of the complaint).
Section 166 DPA
A section 166 DPA application does not concern the merits of the underlying complaint, only procedural failings. It's not a challenge to the substantive outcome of the Commissioner's investigation.
R (Delo) v Information Commissioner [2022] EWHC 3046 (Admin); Killock and Veale v ICO [2021] UKUT 299 (AAC)
The Tribunal can strike out an application with no reasonable prospect of success.
Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, rule 8(3)(c); Swain v Hillman & Another [1999] EWCA Civ 3053
The Tribunal lacks jurisdiction to consider the merits of a complaint or alter the Commissioner's conclusion; it only deals with procedural issues.
Section 166 DPA; Case law discussed in sections 3 and 4
Outcomes
The Respondent’s Strike Out Application was granted.
The appeal had no reasonable prospect of success because section 166 DPA only addresses procedural failures, not the merits of the underlying complaint. The Commissioner had already concluded their investigation and communicated the outcome to the Applicant.