Carlos Garcia Giron 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 complaint against Ronald Fletcher & Co LLP (“Ronald Fletcher”) regarding the handling of his Subject Access Request (“SAR”) concerning call recording and history. The complaint was submitted to the Information Commissioner (“IC”) on 10 December 2024 and was dealt with under reference IC-352041-X6Q4.

2. On 16 April 2025, the Applicant sent an email to the IC requesting an update regarding the handling of his complaint.

3. On 30 April 2025, the IC’s case officer wrote to the Applicant and explained that he was unclear why Ronald Fletcher had not provided the Applicant with the information he had requested. The case officer advised the Applicant that he had written to Ronald Fletcher to request that they either provide the information he had requested, or explain the lawful reason they were not able to do so within 28 days.

4. On 29 May 2025, the Applicant sent the case officer an email to advise that he had not had a response from Ronald Fletcher and requested an update.

5. On 6 June 2025, the case officer sent a reminder email to Ronald Fletcher asking them to respond to the Applicant. On the same day an update was sent to the Applicant.

6. On 9 June 2025, Ronald Fletcher informed the case officer of some difficulties in accessing data related to the SAR. The SAR related to telephone records of a contractor who no longer worked with Ronald Fletcher. They had contacted the contractor requesting that he provide his personal mobile telephone records and the contractor was waiting for those records from the phone provider.

7. On 11 June 2025, the Applicant sent an email to the case officer explaining that he had received a response to his SAR from Ronald Fletcher but that he remained dissatisfied with the response as the response lacked clarity and failed to provide a detailed and lawful explanation.

8. On the same day, the IC’s caser officer acknowledged that he had also received an email from Ronald Fletcher confirming that they had now responded to the Applicant’s complaint and that the Applicant was dissatisfied with the response received. The case officer explained that he was of the opinion that Ronald Fletcher’s email to the Applicant appropriately explained their position, namely that it had advised the Applicant that neither the contractor nor his phone provider retained the information sought and they were therefore unable to provide it. The case officer assured the Applicant that steps had been taken to ensure Ronald Fletcher understood their SAR obligations, particularly regarding data on personal devices, and confirmed that no regulatory action would be taken. A link that the to the ICO’s Regulatory Action Policy was provided for further context.

9. On 17 June 2025, the Applicant sent an email to the ICO case officer requesting a case review.

10. On 8 July 2025, a case reviewing officer sent an email to the Applicant. Having reviewed the complaint and the outcome issued by the case officer, the case reviewing officer was satisfied that the case officer had dealt with the complaint appropriately and in line with the IC’s case handling procedures. The case reviewing officer upheld the original outcome. The Applicant was reminded of his right to pursue independent legal action against Ronald Fletcher, and of his right to complain to the Parliamentary and Health Service Ombudsman (PHSO) if he was dissatisfied with the service that he had received. The Application

11. The Applicant applied to the Tribunal by way of form GRC3 dated 24 April 2025. He stated that the outcome he was seeking was as follows: “To take appropriate steps to respond to my complaint”.

12. In his grounds for the Application, the Applicant stated: “ The ICO fails to take appropriate steps to respond to the complaint. The ICO fails to update me on the progress of the complaint. The ICO fails to provide an outcome within 3 months of when I complained. The ICO fails to conclude the complaint within 3 months.” The strike-out application

13. The IC applied by way of form GRC5 dated 23 July 2025 to strike out the Application on the basis that there is no reasonable prospect of it succeeding under Rule 8(3)(c) (the “strike-out application”).

14. The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 22 to 31. In summary, these were as follows: a. The application shows no discernible grounds that would warrant the Tribunal exercising its powers under section 166(2) of the DPA18, given that the IC has now provided an outcome on 30 April 2025, further clarification was also provided on 13 June 2025 and a case review outcome was provided on 8 July 2025. There is therefore no reasonable prospect of persuading the Tribunal to make any order pursuant to section 166(2) of the DPA18, as there are no longer any procedural issues that remain outstanding for the resolution of the complaint. b. The IC accepts that there was a delay in initially communicating with the Applicant in relation to their complaint. However, the IC has since provided the Applicant with an outcome on the complaint and an outcome to the requested case review in correspondence dated 30 April 2025 and 13 June 2025. c. Accordingly, it is respectfully submitted that the IC has now taken steps to comply with the procedural requirements set out in section 166(1) of the DPA18, and there is therefore no basis for the Tribunal to make an order under section 166(2) DPA18.

15. Judge Heald directed on 9 September 2025 that the Applicant should provide representations in relation to the strike out application by 29 September 2025 under Rule 8(4). No response has been received from the Applicant. Legal framework

16. 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.”

17. 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.

18. 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.”

19. 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."

20. 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... ”.

21. 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).

22. 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.”

23. 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.”

24. 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

25. 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 30 April 2025 with a further response on 8 July 2025 following a review. I consider that when taken together, 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.

26. 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.

27. 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.

28. 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 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.

29. The proceedings are therefore struck out under Rule 8(3)(a) because there is no reasonable prospect of them succeeding.