Erwan Firdaus Bin Ab Razak v The Information Commissioner

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 the Information Commissioner (“IC”) regarding the handling of his Data Subject Access Request (“DSAR”) dated 2 October 2025 reference IC-466777-F1J1. The complaint (the “Complaint”) was submitted to the IC’s Public Advice and Data Protection Complaints Service (“PADPCS”) on 8 January 2026, stating that his DSAR had not yet been addressed and forwarding a copy. The Complaint was dealt with under reference IC-466151-L9S3.

On 12 January 2026, the IC’s Information Access Team (IAT) acknowledged the Applicant’s DSAR. In this email, the IAT stated that they did not appear to have received the original request which he had sent, but would proceed to consider the DSAR based on the information attached to his email dated 8 January 2026 and ensure his DSAR was dealt with promptly. It noted that under statutory timeframes the response was due by 3 November 2025 and apologised for the delay in responding to his request.

On 28 January 2026, an officer from IAT provided a response to the Applicant’s DSAR and attached information which fell within scope of that address, They also stated that they had redacted some information variously under the following parts of the DPA 2018:

The IAT officer also noted that some information had been withheld in accordance with Schedule 2 Part 4 paragraph 22 because disclosure of the requested information at the time could prejudice ongoing activities relating to management planning.

On 2 March 2026, the IC’s case officer wrote to the Applicant about his Complaint. He stated that it was likely, on balance, that the request was received on 2 October 2025. He therefore expressed the view that the IC had failed to comply with its data protection obligations in that it failed to respond to the DSAR within the prescribed one calendar month period. However, he noted that the IC had responded quickly once it was made aware of the issue and had provided a response to the DSAR on 28 January 2026. The case officer stated that it had informed the IC of his view, but did not consider further action was necessary other than keeping a record on file to help inform how the IC handles information rights requests.

The Applicant applied to the Tribunal by way of form GRC3 dated 20 January 2026, which gave the date and reference of the DSAR rather than the Complaint. He stated that the outcome he was seeking was as follows:

In his grounds for the Application, the Applicant stated:

The IC applied by way of form GRC5 dated 18 February 2026 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”).

The reasons which the IC gave for striking out the application were set out in its Response. In summary, these were as follows: 

On 4 March 2026, the Registrar directed that the Applicant should provide representations in relation to the strike out application by 18 March 2026 under Rule 8(4).

The Applicant provided a response to the strike-out application on 18 March 2026 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:

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: 

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. 

Section 165 deals with the complainant’s right to make a complaint and states that: 

Article 77 of GDPR provides as follows:

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."

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...”. 

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). 

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 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.” (paragraph 33). 

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.”

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.”

The Application as drafted is concerned with the fact that the IC did not comply with the DSAR within the statutory timeframe. An order to progress the handling of a complaint under section 166 of DPA 2018 is only available where (a) there has been a complaint under section 165 of DPA 2018 or under Article 77 of UK GDPR and (b) one or more of the conditions set out in s166(1) are met. I consider that the DSAR was not a complaint under either section 165 or under GDPR Article 77, because its purpose was to obtain information from the IC rather than to complain about either how the IC had handled a complaint or how processing of the Applicant’s data infringed UK GDPR. The statutory timeframe for responding to a DSAR is different from that for handling a complaint, which means that conditions (b) and (c) of section 166(1) do not apply. The third condition, in (a), namely the question of whether appropriate steps had been taken is not the test for whether or not the data controller has responded to the DSAR; this is a binary yes or no question. I therefore conclude that an order under section 166(2) is not available to the Applicant in respect of the DSAR and that the Tribunal does not have jurisdiction to deal with the Application as drafted.

Orders for compliance by a data controller need to be sought through civil action, not through this Tribunal. The IC has, in any event, now responded to the DSAR.

The Application is complicated by the fact it was pursued alongside a formal complaint under Article 77, which was the Complaint dated 8 January 2026. Strictly speaking, the Applicant has not included the Complaint in the Application, because he has not identified it by date or reference number and neither his grounds for the application nor the outcome sought make reference to the Complaint, other than stating that there was “a formal escalation concerning non-compliance” on 8 January 2026. In my view, this is not sufficient to bring the Complaint within the Application.

Even if I am wrong on this, the Applicant accepts in his response to the strike-out application that the IC has provided a regulatory outcome to the Complaint. I consider that the response dated 2 March 2026 was in fact an outcome to the Complaint, because 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.

It appears to me therefore that there are no further appropriate steps which the IC ought reasonably to take to progress the Complaint and so an order under section 166(2) DPA 2018 would have no practical effect.  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 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. 

The Applicant states in his response to the strike-out application that The Tribunal is required to determine whether the IC complied with its statutory obligations at the time those obligations arose. He argues that the existence of a subsequent outcome does not remove that requirement, nor does it extinguish the need for determination of the admitted breach. The Tribunal does not have the power under section 166 to determine whether or not there has been a breach of the UK GDPR; section 166 is a narrow procedural provision which can only be used to seek an order to progress the IC’s handling of a complaint. Accordingly, I find that the Tribunal does not have the power to grant the outcomes sought. 

I conclude that the Tribunal has no jurisdiction to consider the Application as drafted because compliance with a DSAR is not a complaint in respect of which the procedural remedy set out in section 166(2) is available. The Tribunal must, under Rule 8(2)(a), strike out the whole or a part of the proceedings if the Tribunal does not have jurisdiction in relation to the proceedings or that part of them

Further, or in the alternative, 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.

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