Ian A Baldwin 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 complaints against the Home Office regarding the handling of his personal data in its response to his Subject Access Request (“SAR”). The complaint was submitted to the Information Commissioner (“IC”) on 23 January 2025 and was dealt with under reference IC-360338-Y6Z2.

On 15 July 2025, having reviewed the evidence provided, the IC’s Case Officer wrote to the Applicant. The Case Officer noted that the Applicant’s concerns related to alleged inappropriate data sharing by the Home Office. The Case Officer explained that organisations must be allowed one month to respond to a data protection complaint and, as such, the Applicant had contacted the IC prematurely. In any event, the matters raised had already been considered by the IC multiple times, as the Applicant had made various complaints in the preceding years to which outcomes had been provided. It therefore appeared that this was a reiteration of matters which the IC had already considered and no further action would be taken.

Between 15 July and 18 September 2025, the Applicant sent several further emails to the IC expressing his dissatisfaction with the response dated 15 July 2025. The Case Officer responded to each one maintaining that the complaint appeared to be a reiteration of issues already considered by the IC and, as such, they were not required to revisit the earlier outcome and no further action would be taken.

On 26 September 2025, the Applicant asked for his complaint to be reviewed. The Applicant explained that the IC had wrongly concluded that his complaint related to the application of LPP. It was in fact a complaint about the Home Office sharing the Applicant’s personal data with external legal counsel in 2022.

On 30 September 2025, the IC’s Reviewing Officer wrote to the Applicant. They noted that within the Applicant’s correspondence dated 26 September 2025, he had explained that he anticipated receiving a response from the Home Office in October 2025 in respect of his most recent complaint to the Home Office about the sharing of his personal data. The Reviewing Officer confirmed that having looked at the Applicant’s concerns again, their view was that the Applicant ought to allow the Home Office time to respond. This was particularly as it was unclear from the information held by the IC whether this was indeed a new issue and not one which the IC had already considered. In light of this, the Reviewing Officer confirmed that the IC’s file was closed. However, should the Applicant provide a copy of the Home Office’s response to his latest complaint, or if he remained dissatisfied, matters may be revisited.

On 21 October 2025, the Applicant wrote to the IC again reiterating that his complaint was a new one about a data protection breach. The Case Officer replied on the same day, noting that the instruction of external counsel appeared to have occurred following the Applicant having raised the prospect of a judicial review. In the circumstances, it was unlikely that seeking independent legal advice was an infringement of data protection law. The IC’s file remained closed.

Notwithstanding the above, the Case Officer made further enquiries with the Home Office asto whether this was an issue which the IC had already considered. The Home Office had a longer data retention period than the IC and could review older case files and check previous complaints.

Having carefully considered the Home Office’s response, the Case Officer concluded that this was a new issue. The Case Officer proceeded to make enquiries of the Home Office as to the lawful basis it relied upon when sharing the Applicant’s personal data with external counsel and how data sharing was communicated to the Applicant. The Case Officer did not allocate a new case reference number and these enquiries/the complaint was dealt with under case reference number IC-360338-Y6Z2.

The Case Officer updated the Applicant on 18 November 2025 to confirm that they had contacted the Home Office and a further response would be provided as soon as possible.

On 30 December 2025, the Home Office wrote to the Applicant stating that the lawful basis for sharing personal data with the Government Legal Department and thereafter counsel was “Public Task”. The letter also confirmed that the counsel in question was registered with the IC. It stated that the Home Office now considered the matter closed.

On 7 January 2026, the Case Officer wrote to the Applicant in relation to the Applicant’s complaint that his personal data had been shared with external counsel. The Case Officer’s view was that the Home Office sharing the Applicant’s data with external counsel was appropriate in the circumstances and did not rely on the basis of consent. The Case Officer stated that they considered sharing data with external counsel when legal claims are actual or potential is reasonable. Notwithstanding this, the Case Officer explained that they had taken the opportunity to provide advice to the Home Office with the aim of improving transparency by explicitly listing external counsel in its privacy notice. Further, the Case Officer had asked the Home Office to confirm retention periods directly to the Applicant. The Applicant responded on the same day stating that he did not accept the Case Officer’s reply and would appeal to the Tribunal.

On 17 January 2026, the Applicant requested a further case review and made a SAR to the IC. The Case Officer acknowledged the Applicant’s request for a review on 20 January 2026 and confirmed that the SAR had been referred to the Information Access team.

On 29 January 2026, the Reviewing Officer confirmed that they were satisfied that the Case Officer had dealt with the Applicant’s complaint appropriately and in line with the IC’s case handling procedures. The Reviewing Officer agreed with the previous outcome and was satisfied that the Home Office had shared the Applicant’s data appropriately. The Applicant was informed that he had exhausted the IC’s case review procedure and the issues would not be considered again. The Reviewing Officer also confirmed that the Applicant may be able to complain, via his MP, about the service received from the IC to the Parliamentary and Health Service Ombudsman (PHSO). Further, the Applicant could pursue the matter through the courts independently.

The Applicant applied to the Tribunal by way of form GRC3 dated 6 January 2026. He stated that the outcome he was seeking was as follows: “take appropriate steps to respond to complaint”.

In his supporting document for the Application, the Applicant explained the timeline of his complaints to the Home Office. He said that he had been told by his incoming MP in or after July 2024 that there was a data protection breach with papers going to external counsel. He stated that:

He stated that the Home Office had not replied within the time limit for doing so after he asked about the breach in January 2025 and complained that the IC had not taken this into account. He concluded “Therefore the ICO are turning a blind eye to these blatant breaches. It is my opinion the ICO Staff are doing all they can to frustrate this application.”

The IC applied by way of form GRC5 dated 12 March 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: 

The IC has already considered and responded to the Applicant’s complaints on several occasions and the IC does not consider that any further steps are required. As such, the remedy sought by the Applicant is not an outcome that the Tribunal can grant in a section 166 application against the IC. An Application under section 166 of the DPA18 permits a Tribunal to make an order against the Commissioner only if he has failed in some procedural respect; he has not.

The IC has taken appropriate steps to investigate and respond to the Applicant’s complaint providing him with an outcome on 15 July 2025, a review outcome on 30 September 2025, a further outcome on 7 January 2026 and a further review outcome on 29 January 2026. Accordingly, it is respectfully submitted that the IC has complied 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.

It is clear that the Applicant disagrees with the outcome reached by the IC on his complaint. However, as set out above, section 166 DPA18 does not provide a mechanism by which complainants can challenge the substantive outcome of a complaint. The relief available from the Tribunal on an application under section 166 DPA18 only applies where it is satisfied that the IC has failed in some procedural respect to comply with the requirements of section 166(1) DPA18, limited solely to those orders that are set out in section 166(2).

If the Applicant wishes to seek an order of compliance against the Home Office for any alleged breach of his data protection 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 DPA18.

The Applicant provided a response to the strike-out application on 23 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: 

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 first question is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response on 15 July 2025, a response following review on 30 September 2025, a further response on 7 January 2026 and a further response following review on 29 January 2026. I consider that each of the responses dated 15 July 2025 and 7 January 2026 was in fact an outcome to the complaint, because it 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.

Even if I am wrong on this, I am satisfied that when taken together with the responses following review dated 30 September 2025 and 29 January 2026, 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.

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.  

The outcome sought by the Applicant is, 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 progressing the IC’s handling of a complaint, Accordingly I find 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. 

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.