Kieran Caldwell 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 complaints against Staffordshire Police (the “Police”) regarding its response to his Subject Access Request (“SAR”). The complaint was submitted to the Information Commissioner (“IC”) initially on 28 January 2025, although it was not received until 28 February 2025, and was dealt with under reference IC-360041-L8Z2.

2. On 22 July 2025, the IC’s case officer reviewed the evidence provided and concluded that there was no further input required at this stage, beyond what had already been set out in the letter issued by the Police. The case was closed on the basis that the Police had complied with their data protection obligations. The Case Officer clarified that while the Applicant may continue to seek access to additional material, such material does not constitute personal data and therefore falls outside the scope of data protection legislation. The Applicant was advised that any further disclosure would need to be pursued through the courts, and that such matters are outside the ICO’s jurisdiction. Guidance on personal data and third-party information was also provided. The Application

3. The Applicant initially applied to the Tribunal by way of form GRC1 dated 21 August 2025. This application was incomplete because it did not provide the appropriate contact details at section 6 of the form. The Applicant subsequently submitted a further completed form GRC1 dated 19 September 2026. He stated that the outcome he was seeking was as follows: “I ask the Tribunal to allow the appeal, set aside the ICO’s decision, and order disclosure of my personal data held by Staffordshire Police relating to incident [number] namely: • The full 36-minute BWV from [police officer 1] (with only strictly necessary third-party redactions) and the audit trail for edits made. • Any retrievable BWV from [police officer 2] or a formal acknowledgment of its loss with reasons and audit details. • The 999 call audio/transcript (with minimal non-material redaction). • Unredacted or minimally redacted STORM incident log and NICHE occurrence/investigation records that describe me, my conduct, or actions taken in relation to me. • Any officer notes/statements insofar as they record information about me. • (If needed) inspection in camera by the Tribunal to determine the disclosable parts. I also seek a finding that the blanket third-party approach and the failure to conduct a proper mixed-data balancing test were unlawful, and that the ICO’s decision proceeded on incomplete/mistaken facts supplied by the controller.”

4. In his grounds for the Application, the Applicant stated: “I appeal because the ICO’s decision is wrong in fact and law. The withheld material is my personal data. BWV of my interactions with officers, the 999 call reporting allegations about me, and the incident/STORM/NICHE records describing me and the officers’ actions are “personal data” within UK GDPR Art 4(1), even if they also mention a third party. Treating this as solely “third-party data” mischaracterises its nature The police did not carry out the required balancing exercise under DPA 2018 Sch 2 para 16. They applied a near-blanket refusal, instead of extracting and disclosing my data with proportionate redaction or by seeking consent. The ICO erred by endorsing that approach rather than requiring a proper mixed-data assessment. Material errors of fact came to light after the ICO decision. The PSD outcome (08/09/2025) confirms: • [police officer 1]’s BWV appears to have been selectively edited down to 36 minutes but I received only a tiny excerpt (2 minutes). • [police officer 2]’s BWV existed but was not saved and then auto-deleted after 30 days. • The 999 call and log contain specific allegations about me (e.g. assault; “money from the drawer”) that were wholly withheld. The police repeatedly stated I had “all available” footage, which was misleading. The ICO’s conclusions rested on incomplete and inaccurate facts. The result is unfairness and ongoing prejudice. I cannot check accuracy (Art 5(1)(d)), correct records, or understand allegations used against me in related legal disputes. Disclosure to me, with narrow redaction where strictly necessary, would minimally impact third-party privacy but is essential to vindicate my rights Accordingly, the decision should be set aside and the matter determined afresh with a correct view of the law on mixed data and the new evidence regarding the true scope and handling of my data.” The strike-out application

5. The IC applied by way of form GRC5 dated 21 October 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”).

6. The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 23 to 26 and 34 to 36. In summary, these were as follows: a. the Tribunal has no jurisdiction to determine the present application, as the IC has already determined the Applicant’s complaint when he sent an outcome to the Applicant on 22 July 2025. b. The present application shows no discernible grounds that would warrant the Tribunal exercising its powers under section 166(2) of the DPA 2018, given that the IC provided an outcome to the Applicant’s complaint on 22 July 2025. There is therefore no reasonable prospect of persuading the Tribunal to make any form of order pursuant to section 166(2) of the DPA 2018. c. It is clear from the grounds in support of the application that the Applicant does not agree with the outcome provided 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) . d. The IC has taken appropriate steps to investigate and respond to the Applicant’s complaint and has provided an outcome to him. 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. e. If the Applicant wishes to seek an order of compliance against the data controller 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.

7. I directed on 19 November 2025 that the Applicant should provide representations in relation to the strike out application by 4 December 2025 under Rule 8(4).

8. The Applicant provided detailed submissions on 4 December 2025, 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: a. The Application is not a merits-based appeal on the underlying data protection issue or the correctness of the outcome; it is about the adequacy of the IC’s process in handling the complaint. The IC did not discharge the duty to investigate to the extent appropriate and therefore the Tribunal should intervene under section 166 . b. In reaching his conclusion that the Police had complied with their data protection obligations, the IC failed to take several appropriate investigative steps, such not applying the correct “mixed personal data” balancing test and not reviewing key evidence, resulting in a procedurally defective handling of the complaint. c. The Tribunal’s role is to assess whether the IC handled the complaint properly and took the steps that were appropriate in all the circumstances. d. The existence of an outcome letter is not itself conclusive; what matters is whether the process leading to that outcome was compliant with the IC’s obligations (to investigate to the extent appropriate, to keep the complainant informed, etc.). e. The Applicant identifies three alleged procedural failings or omitted appropriate steps by the IC. These are as follows: • The Applicant says that the Police wrongly refused him access to personal data relating to him by invoking third party privacy. The Applicant’s position is that the Police had not performed the proper balancing test required where there is mixed data (ie information about the requester and third parties). The Applicant says that the IC failed to:

1. Apply or enforce the correct balancing test for mixed data;

2. Analyse whether information genuinely was third-party data or whether disclosure (even partial) could be made, accepting the Police’s position at face value. • The Applicant says that the IC failed to obtain and review certain core records he had asked it to obtain which he says were central to evaluating the complaint. The IC should have requested these materials for review and examined them. • The Applicant says that he experienced confusing and contradictory communication from the IC during the handling of his complaint, for example the letter from the IC dated 22 July 2025 did not transparently address the points the Applicant had raised. The Applicant said that the IC’s handling left him without answers to critical questions and without confidence that his complaint was fairly and fully examined. He seeks that the Tribunal directs the IC to reopen the complaint, gather the key evidence and properly reassess the issues. f. An order can be made under section 166 even where an outcome has been given, so long as the complaint has not been responded to with appropriate steps. g. Striking out the application would leave the Applicant without further remedy or scrutiny of the IC’s handling despite credible concerns having been raised.

9. On 11 December 2025, Judge Mornington directed that the Respondent should file a response to the Applicant’s submissions. Following grant of an extension of time, these submissions were filed on 29 January 2026. In summary, the Respondent made the following points: a. The Applicant’s alleged procedural failings by the IC are fundamentally misconceived as to law and jurisdiction. Properly analysed, the Applicant’ s case amounts to a challenge to the merits, depth and substantive adequacy of the IC’s investigation, which falls outside the Tribunal’s remit under section 166 . b. Section 166 is procedural rather than substantive in nature. c. The alleged failing in relation to “mixed data” is a merits challenge. Section 166 does not allow challenges to the IC’s legal analysis or merits reasoning. The Upper Tribunal in Killock & Veale held that the Tribunal ’ s role is limited to identifying procedural omissions preventing progress, not substantive mistakes. Accordingly, the Tribunal cannot determine whether the IC correctly applied UK GDPR or DPA 2018 principles, only whether the IC took the steps appropriate to respond to the complaint. d. The alleged failure to assess core evidence challenges the scope of the IC’s investigation, not the existence of any procedural failure under section 166 . The Tribunal’s jurisdiction does not extend to prescribing what evidence the IC must review. The Applicant’s position, that failing to obtain and review specific pieces of evidence is a procedural flaw, is directly inconsistent with the established case law. Killock & Veale emphasises that s.166 is not concerned with retrospective complaints about the depth of investigation. Here, the IC has issued an outcome. Once an outcome is issued, the complaint-handling process is complete, meaning there is no ongoing procedural failure capable of being remedied. This ground is therefore a challenge to the merits of the investigation and outcome, not a procedural omission. e. The alleged failure in relation to communication attempts to transform ordinary correspondence and case-handling communications into actionable procedural defects. Section 166 is not a mechanism to ensure perfect clarity or ideal administrative communication but is limited to determining whether the IC has taken steps necessary to respond to the complaint in substance. The Tribunal cannot order the IC to re ‑ investigate, gather further evidence, or revisit conclusions. Such remedies relate entirely to the Applicant’s merits dissatisfaction. Legal framework

10. 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.”

11. 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.

12. 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.”

13. 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."

14. 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... ”.

15. 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).

16. 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.”

17. 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.”

18. 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

19. 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 22 July 2025. I consider that the response dated 22 July 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. 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.

20. The Applicant alleges several procedural failings on the part of the IC which he says amount to appropriate steps which the IC should have taken, and I deal with each of these in turn. a. In relation to the allegation that the IC should have applied or enforced the correct balancing test for mixed data and analysed whether the Police’s conclusion was correct, I agree with the IC that Killock & Veale held that the Tribunal ’ s role is limited to identifying procedural omissions preventing progress, not substantive mistakes. What the Applicant is asking for is, in effect, for the IC to itself apply the law which the Police had applied and to come to a different conclusion. I conclude that it is not for this Tribunal to determine whether the IC correctly applied UK GDPR or DPA 2018 principles, only whether the IC took the steps appropriate to respond to the complaint. b. In relation to the allegation that the IC should have requested core materials for review and examined them, the IC has a broad discretion to investigate to the extent that it considers appropriate. For the reasons set out in paragraph 16 above, I agree with the IC that section 166 is not concerned with retrospective complaints about the depth of investigation. Here, the IC has issued an outcome. Once an outcome is issued, the complaint-handling process is complete, meaning there is no ongoing procedural failure capable of being remedied. c. In relation to the allegation that the Applicant has received confusing and contradictory communication from the IC and has been left without answers to some of his questions, I agree with the IC that the key question in applying section 166 is whether the IC has taken steps necessary to respond to the complaint in substance. The Tribunal cannot order the IC to re ‑ investigate, gather further evidence, or revisit conclusions. The Applicant clearly does not agree with the outcome, but this is not sufficient to demonstrate that there are procedural failings which could be remedied by an order under section 166(2) .

21. 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.

22. 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. If the Applicant wishes to challenge the way in which the IC and/or the Police investigated or made decisions in relation to him, the appropriate forum for this is by way of judicial review in the Administrative Court, not this Tribunal. Accordingly, I find that the Tribunal does not have the power to grant the outcomes sought.

23. 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.

24. 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.