Emmanuel Baran 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 Nottinghamshire Police regarding the handling of his personal data. The complaint was submitted to the Information Commissioner (“IC”) on 2 April 2025 and was dealt with under reference IC-374198-W8F2.

2. On 2 July 2025, the Applicant emailed the IC requesting expedition of his complaint due to ongoing legal proceedings and a court hearing scheduled for 15 July 2025. He asked for further details regarding the progression of his complaint.

3. On 5 July 2025, the Applicant emailed the IC with additional information to be considered as part of his complaint.

4. On 8 July 2025, the case officer allocated to the complaint emailed the Applicant requesting further information regarding his complaint. On the same day, the Applicant emailed the case officer and copied the Independent Office for Police Conduct (IOPC), raising concerns about Nottinghamshire Police’s misuse of his personal data and their failure to respond adequately to his SAR.

5. On 10 July 2025 and 12 July 2025, the Applicant emailed the case officer with further information.

6. On 18 July 2025, the case officer emailed the Applicant explaining that they could not consider multiple complaints concerning different organisations, and if the Applicant had any concerns regarding any data protection issues with those organisations, he was advised to raise a complaint with them in the first instance. In relation to the specific complaint concerning Nottinghamshire Police, the case officer further explained that due to the voluminous information provided by the Applicant, it was difficult to identify the precise scope of his complaint.

7. Between 18 July to 23 July 2025, the Applicant submitted additional evidence concerning his complaint to the case officer.

8. On 30 July 2025, the case officer emailed the Applicant acknowledging receipt of the further information provided by the Applicant and confirming that this was being reviewed. Between 30 July 2025 and 1 August 2025, the Applicant provided further information regarding his complaint.

9. On 8 August 2025, the case officer wrote to the Applicant. The case officer explained that an organisation does not necessarily require a person’s consent to process their personal data, that consent is only one lawful basis to process an individual’s personal data and that further action can be taken through the courts. The case officer stated that the IC did not consider further action was required at this time.

10. On the same day, the Applicant emailed the case officer requesting a review, together with additional information.

11. Between 9 and 15 August 2025, the Applicant provided further information to the case officer in connection with his request for a review.

12. On 15 August 2025, the case officer acknowledged receipt of the further information provided by the Applicant in connection with his review request, but noted that the complaints process had not been fully exhausted. Given this, the case officer suggested that the complaints process should be pursued in the first instance, and if the Applicant still remained dissatisfied with the outcome, he could then refer his concerns back to the case officer for further consideration, providing clear evidence as to how his concerns had been handled by Nottinghamshire Police.

13. Between 29 August 2025 and 16 September 2025, there was continued correspondence between the Applicant and the IC and call from the Applicant in connection with his request for a review.

14. On 26 September 2025, the IC’s reviewing officer notified the Applicant of the outcome of the review. The Reviewing Officer explained that consent was only one of the lawful bases that would justify the processing of an individual’s personal data and that consent would not have been suitable in a law enforcement context, and that Nottinghamshire Police had provided a detailed account as the use of the Applicant’s personal data. The Applicant wrote to the IC stating that the review outcome was incomplete as it did not address some of the issues he had raised.

15. On 17 October 2025, the IC’s case officer wrote to Nottingham Police for further clarification in light of the concerns which the Applicant had expressed.

16. On 24 October 2025, the case officer wrote to the Applicant and stated that having reviewed the response, the IC was satisfied that the organisation has provided a clear and appropriate explanation of the lawful basis it relied upon for its actions, in accordance with the relevant legislation. The Applicant submitted a further request for review on the same day.

17. The IC’s reviewing officer wrote to the Applicant on 31 October 2025 and concluded that they could not identify any infringement of the legislation that the IC oversees and would not take further action. They informed the Applicant of the right to complain to the Parliamentary and Health Service Ombudsman. The Applicant lodged a formal objection tot his outcome on the same day. The Application

18. The Applicant applied to the Tribunal by way of form GRC1 dated 24 October 2025. He stated that the outcome he was seeking was as follows: a. to overturn the IC’s decision dated 24 October 2025 and require the IC to reopen the investigation. b. For the IC to reassess the case based on the correct legal framework; and c. A finding that the processing of his personal data by Nottinghamshire Police was unlawful and disproportionate.

19. In his grounds for the Application, the Applicant explained that he considered that the IC wrongly accepted the Police’s use of the particular exemption relied upon under the Data Protection Act 2018 . He argued that the IC failed to consider proportionality, data minimisation, and relevance of his data to the proceedings. The strike-out application

20. The IC applied by way of form GRC5 dated 16 December 2025 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”).

21. The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 42 to 45. In summary, these were as follows: a. The remedies sought by the Applicant are not outcomes that the Tribunal can grant in a section 166 DPA18 application against the IC. An Application under section 166 DPA18 permits a Tribunal to make an order against the IC only if he has failed in some procedural respect. b. The IC has taken appropriate steps to investigate and respond to the Applicant’s complaint, providing them with an outcome on 8 August 2025 (as upheld on review on 26 September 2025 and 31 October 2025). Accordingly, the IC submits he has 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. c. It is clear that the Applicant disagrees with the outcome reached by the IC on their complaint. However, as set out above, section 166 of the DPA18 does not provide a mechanism by which Applicants can challenge the substantive outcome of a complaint. The relief available from the Tribunal on an application under section 166 of the 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) of the DPA18, limited solely to those orders that are set out in section 166(2) . d. If the Applicant wishes to seek an order of compliance against the controller for breach of their data rights, the correct route to do so is by way of separate civil proceedings in the County Court or High Court under section 167 of the DPA18.

22. The Applicant provided a Reply to the Response dated 26 December 2025, 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 main points made by the Applicant, in summary, were as follows: a. The IC’s handling of their subject access request was unlawful, procedurally unfair and irrational and does not demonstrate that the IC took “appropriate steps”. b. The IC did not independently determine the scope of disclosure and subsequently asserted that no documents had been withheld from disclosure. c. The IC failed to conduct an independent, lawful and meaningful investigation. It accepted explanations provided by Nottinghamshire Police without requiring documentary evidence, audit trails or contemporaneous justification. d. The IC failed to engage meaningfully with new substantive evidence provided by the Applicant. e. The IC failed to assess the necessity or proportionality of Nottinghamshire Police’s handling of the Applicant’s personal data. f. The IC applied the wrong legal test to the processing of data by Nottinghamshire Police, although the Applicant did not specify what the correct test would be. g. The IC’s complaint handling “demonstrates outcome-driven decision-making”. Legal framework

23. 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.”

24. 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.

25. 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.”

26. 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."

27. 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... ”.

28. 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).

29. 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 (paragraph 33). section 166 and the High Court on an application for judicial review.”

30. 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.”

31. 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

32. 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 8 August 2025 with further responses on 26 September, 24 October and 31 October 2025 following review. I consider that the response dated 8 August 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.

33. Even if I am wrong on this, I am satisfied that when taken together with the responses dated 26 September, 24 October and 31 October 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.

34. 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.

35. The outcome sought by the Applicant in the Application expressly seeks to overturn the IC’s decision dated 24 October 2025 and require the IC to reopen the investigation. 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 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. Its powers are limited to ordering the IC to progress its handling of the Applicant’s complaint.

36. 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.

37. 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.

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