Melissa Creighton v The Information Commissioner

Introduction

1. The Appellant seeks an order under section 166(2) of the Data Protection Act 2018 (DPA 2018) requiring the Information Commissioner (the Commissioner) to take appropriate steps to respond to her complaint concerning London Borough of Enfield’s failure to provide a response to a Subject Access Request. Such steps are to include re-opening the investigation, resolving contradictory findings and supervising the data controller's compliance.

2. In his response to the application, the Commissioner invites the appellant to withdraw her appeal on the basis that there has now been an outcome provided and submits that should the appellant not withdraw, the appeal has no reasonable prospects of succeeding and accordingly, should be struck out. Legal Framework

1. Under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, the Tribunal may strike out the whole or part of the proceedings if the Tribunal considers it does not have jurisdiction in relation to the proceedings or that part of them; and does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

2. Under Rule 8(3)(c) of the Rules, the Tribunal may strike out the whole or part of the proceedings if the Tribunal considers there is no reasonable prospect of the applicant’s case, or part of it, succeeding.

3. Section 165 DPA sets out the right of data subjects to complain to the Commissioner about infringement of their rights under the data protection legislation. Under section 166 DPA a data subject can make an application to this Tribunal for an order as follows: 166 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 - (a) to take appropriate steps to respond to the complaint, or (b) to inform the complainant of progress on the complaint, or of the outcome of the complaint, within a period specified in the order.

4. 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. Some key decisions are: a. Scranage v Information Commissioner [2020] UKUT 196 (AAC) , paragraph 6 - "In my experience – both in the present appeal and in many other cases – there is a widespread misunderstanding about the reach of section 166 . Contrary to many data subjects’ expectations, it does not provide a right of appeal against the substantive outcome of the Information Commissioner’s investigation on its merits. Thus, section 166(1) , which sets out the circumstances in which an application can be made to the Tribunal is procedural rather than substantive in its focus." (emphasis in original). b. Killock v Information Commissioner [2022] 1 WLR 2241 , Upper Tribunal at paragraph 74 - "… 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 ." Background

5. The factual background to this case is succinctly set out at [24] to [27] of the Commissioner’s response dated 23 September 2025:

24. On 9 March 2025, the Applicant submitted a complaint to the Commissioner following London Borough of Enfield (“LBE”) failing to provide a response to a Subject Access Request (“SAR”) made on 30 December 2024 [Pages 1-4].

25. On 26 June 2025, a case officer in the Commissioner’s Public Advice & Data Protection Complaints Services team acknowledged the Applicant’s complaint, whilst providing an update on separate complaint. The case officer supplied the Applicant with the case reference number for the complaint submitted on 9 March 2025, confirming it had been allocated case reference IC-370484-V6N9. The Applicant was further advised that the complaint had not yet been assigned to a case officer.

26. On 3 September 2025, an ICO case officer provided advised the Applicant that her complaint had been allocated to him and that he would be reviewing the complaint in the coming weeks.

27. On 11 September 2025, following a consideration of the correspondence the assigned case officer contacted the Applicant to issue an outcome on the complaint [Pages 5-6]. The case officer advised that based on the information, it appeared that LBE had not complied with its data protection obligations. This is because it appeared that a response to the Applicant’s SAR had not been provided within one month as per Article 12(3)(1) of the UK GDPR. The case officer confirmed that he had written to LBE about their information rights practices. He told them that they should now ensure that the Applicant’s request was reviewed and that a final response provided within 28 days. The case officer also advised that the Applicant’s case was closed Conclusions

3. I find that the Commissioner has provided an outcome to the complaint on 11 September 2025. I, like the Commissioner, accept that there was a delay in initially communicating with the appellant in relation to their complaint. However, the Commissioner has since provided the appellant with an outcome on the complaint.

4. Accordingly, I find that the Commissioner has now 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.

5. Contrary to the expectations of many Appellants, section 166 does not provide a right of appeal against the substantive outcome of the Commissioner’s investigation on its merits. The Tribunal is bound to take into consideration and give weight to the views of the Commissioner, as described by the Chamber President in Barbara Rogers v ICO EA/2021/0348: ’14…In the sphere of complaints, the Commissioner has the institutional competence and is in the best position to decide what investigations he should undertake into any particular issue, and how he should conduct those investigations. This will be informed not only by the nature of the complaint itself but also by a range of other factors such as his own registry priorities, other investigations in the same subject area and his judgement on how to deploy his limited resources most effectively: Killock & Ors v Information Commissioner [2021] UKUT 299 . The obligation of the Commissioner is to take appropriate steps to respond to the complaint’.

6. The Appellant’s response to the strike out declines the invitation to withdraw the appeal and, despite accepting that Section 166 is limited to procedural issues, requests that the Tribunal order the Commissioner to to take appropriate steps to respond to her complaint by re-opening the investigation, resolving contradictory findings and supervising the data controller's compliance. Such steps are aiming to change the substantive response provided int he Commissioner's outcome.

7. The Tribunal does not have the power under section 166 to consider the merits or substantive outcome of a complaint.

8. Section 166 is limited to procedural issues . The Commissioner took steps to investigate and respond to the complaint albeit late. The Commissioner has provided an outcome to the complaint. For these reasons, I find that the Commissioner has not failed to comply with the procedural requirements set out in section 166(1) of the DPA. I therefore find that there is no reasonable prospect of the appeal or any part of it, succeeding. The proceedings are therefore struck out. Signed: Judge Peri Mornington Date: 10 November 2025