Professor David Gordon 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 University of Bristol (the “University”) regarding the handling of the Applicant’s Data Subject Access Request (“DSAR”). The complaint was submitted to the Information Commissioner (“IC”) on 8 July 2025 in the form of a whistleblowing report and was dealt with under reference IC-410443-Y6B5.

On 5 November 2025, the IC’s case officer wrote to the Applicant and informed him that his whistleblowing report relates to his personal data and would best be dealt with as a personal data complaint as opposed to dealing with generic concerns. It was explained that the IC uses data protection complaints to assist in improving the current information rights practices of organisations, primarily by providing compliance and guidance advice. The IC is not able to reach personalised resolutions for individuals. The case officer requested the Applicant to provide further information should he wish to pursue the matter as a data protection complaint.

On 12 November 2025, the Applicant sent to the IC copies of correspondence with the University and further information pertaining to his complaint.

On 19 November 2025, having reviewed the evidence provided, the case officer wrote to the Applicant. The Applicant was informed that the IC's role is to assess data protection complaints to the extent considered appropriate and to use such concerns to inform broader regulatory work, rather than to provide personalised resolutions. While the Applicant made allegations about how the University had handled his DSAR and had acted contrary to its obligations under data protection legislation, the IC concluded that no further action would be taken in relation to his specific complaint. The case officer confirmed that the concerns would be logged as intelligence to contribute to the wider assessment of the University’s information rights practices. The Applicant was advised that if he wished to seek personal redress or compensation, he would need to pursue this directly through the courts, as the IC could not assist with that process

The Applicant disagreed with the IC's position and requested a case review on 20 November 2025. The request was acknowledged on 27 November 2025, and the Applicant was advised that a reviewing officer would be in contact within 30 days.

On 19 December 2025, the IC’s reviewing officer assessed the information provided, examined the handling of the complaint, and wrote to the Applicant with the outcome of his review. The reviewing officer concluded that the complaint had been dealt with appropriately by the original case officer and in line with the IC's case-handling procedures. They noted the Applicant’s belief that a criminal offence had occurred in the handling of the DSAR but explained that the relevant email had in fact been disclosed in response to the DSAR. As such, the IC had chosen to record the concerns for intelligence purposes rather than take specific action in this individual case. The reviewing officer confirmed that no further steps would be taken, reminded the Applicant that the IC’s role is to assess complaints to the extent appropriate, and use them to inform wider regulatory work, and advised that if he sought personal redress, he would need to pursue the matter independently through the courts

The Applicant applied to the Tribunal by way of form GRC1 dated 15 January 2026. He stated that the outcome he was seeking was as follows:

In his grounds for the Application, the Applicant outlined the history of his complaint and stated that he was appealing the IC’s decision to take no action beyond filing his complaint. He raised the following grounds:

The IC applied by way of form GRC5 dated 13 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, particularly at paragraphs 33 to 36. In summary, these were as follows: 

The Applicant provided comments on the Response and strike-out application dated 27 March 2026, which deals with the strike-out application as well as the substantive response, 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 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 to his complaint on 19 November 2025, with a further response after review on 19 December 2025. I consider that the response dated 19 November 2025 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.

Even if I am wrong on this, I am satisfied that when taken together with the response dated 19 December 2025, 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 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. 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. 

The Applicant’s representations take issue with the IC’s view that the appropriate mechanism to challenge a decision made on a complaint is by way of judicial review. He argues that the IC’s view is not shared by the UK Government which provides guidance on its ‘Information rights and data protection: appeal against the Information Commissioner’ website to the effect that a person can appeal a decision notice made by the IC on a freedom of information request or other information request or certain decisions made under the DPA 2018. The decision in question here is not one from which rights of appeal arise under section 57 of the Freedom of Information Act 2000 or under section 162 of the DPA 2018. To the extent that the Applicant disagrees with the outcome provided by the IC or with the way in which the IC went about reaching that outcome, I agree with the IC that this is a matter for the Administrative Court on judicial review.

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.