Rhodalyn Wadie 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 Helios Towers Group LLP regarding a data subject access request (“DSAR”). The complaint was submitted to the Information Commissioner (“IC”) on 14 th November 2024 and was dealt with under reference IC-346548-K5V1.

2. An outcome was provided on 18 th June, with the IC concluding that there was no indication of a breach of data protection legislation, on the information provided. The case officer was content with the explanation offered by Helios Group LLP and its legal advisors regarding the way in which the DSAR had been handled. Certain exemptions had been applied and the case officer found that those had been applied appropriately and the Applicant had received all the information to which she was entitled.

3. The Applicant requested a review, which was provided on 10 th July 2025. The IC concluded that the case handler had handled the complaint appropriately. The reviewing officer was satisfied that the original decision was correct. The Application

4. The Applicant applied to the Tribunal by way of form GRC3 dated 25 th September 2025. She stated that the outcome she was seeking was for the Tribunal to direct the ICO to: a. re-investigate her complaint to an appropriate extent; b. issue a fresh reasoned outcome letter addressing each concern and giving clear findings with a signposting of her rights; c. provide the Applicant with a timetable for the steps above, including providing an update within 28 days and an outcome within 60; d. make any further directions deemed necessary.

5. In her grounds for the Application, the Applicant submitted that: a. Helios Towers Group LLP had withheld significant portions of her DSAR without proper justification. The omissions were excessive and were not supported in law; b. the IC had closed the case without sufficient scrutiny; c. she was dissatisfied with the reviewing officer’s statement that the IC takes organisations “on trust” due to resource limitations; d. the IC had therefore: • failed to discharge its statutory duty, • refused to scrutinise evidence, • closed the complaint on resource grounds rather than merit grounds, • breached its service standards by providing a vague response, • misled her about her right of appeal to the FtT, thus eroding her right to appeal, • adopted a process that was procedurally unfair, untransparent and inconsistent, • undermined the accountability of the data controller by abdicating its regulatory responsibility. The strike-out application

6. The IC applied, by way of form GRC5 dated 23 rd 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”).

7. The reasons which the IC gave for striking out the application were set out in its accompanying Response. In summary, these were as follows: a. s166 is a procedural remedy and may not be used to interrogate the substance of the outcome ( Mahmood ) Mahmood v Information Commissioner [2023] UKFTT 1068 (GRC) ; b. the IC has a broad discretion as to how he investigates complaints ( Delo ) R (on the application of Delo) v Information Commissioner and Wise Payments Ltd [2023] EWCA Civ 1141 ; c. the provision of an outcome is the conclusion of the complaints process and the ability to find that an appropriate step has been omitted, once an outcome is provided is limited ( Delo ); d. s166 may not be used as a “back door remedy” when the option of judicial review would be more appropriate ( Killock and Veale ) Killock & Veale & others v Information Commissioner [2021] UKUT 299 (AAC) ; e. the Applicant’s complaint was investigated to the extent appropriate, an outcome was provided on 18 th June 2025 and a review of that outcome was provided on 10 th July 2025; f. s166 DPA18 does not provide a mechanism by which complainants can challenge the substantive outcome of a complaint; g. 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) ; h. the IC has therefore not failed in its duty under s166(1) DPA 2018.

8. The Tribunal directed that the Appellant should provide representations in relation to the strike out application by 8 th December 2025 under Rule 8(4).

9. The Applicant provided representations in respect of the strike out application on 8 th December 2025. The points made by the Applicant, in summary, were as follows: a. s166 is properly engaged because appropriate steps were not taken to investigate her complaint; b. the IC did not investigate properly and therefore has not undertaken appropriate steps to investigate; c. there was a delay of six months in issuing the response and subsequent correspondence does not fix the breach; d. the IC breached his duty to inform the complainant of her rights (s165(4)(c)) and to provide information about how to pursue a complaint (s165(4)(d); e. the IC placed undue reliance on the case law cited. Killock supports the contention that a full investigation means investigating every aspect of the complaint before issuing an outcome. No investigation was conducted therefore Mahmood does not apply. Smith says that a s166 application is available after an outcome letter if the IC omitted to take appropriate steps. 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 - (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.”

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 and Veale 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 (paragraph 33). 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.”

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.”

18. Paragraph 85 of Killock reads as follows [my emphasis added]: “ 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. I find that he did, on 18 th June 2025. This was followed by a review, provided on 10 th July 2025.

20. The key here is whether appropriate steps were taken. In essence, the Applicant’s case is that a full investigation was not conducted and that it ought to have been.

21. I disagree with the Applicant on that point. The duty imposed on the IC is to “take appropriate steps”, not to “investigate fully”. The correspondence from the IC makes it plain that it conducted as reasonable investigation as it considered to be necessary.

22. The case law does allow for the Tribunal to make an order where appropriate steps were not taken but I note the points which I have set out in paragraph 18, above, in the case of Killock and Veale. The IC, as the expert regulator, has a wide discretion to determine what is an appropriate level of investigation. I give weight to its status and I am satisfied that it did take reasonable steps to investigate the complaint. It was also clear from the review letter that the IC had given consideration to whether there were other appropriate steps which could be taken to progress the Applicant’s complaint.

23. In my view, this is sufficient 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.

24. The outcomes sought by the Applicant are, in effect, challenging the outcome of the investigation. The Tribunal has no jurisdiction, under s166 , to: a. Re-investigate her complaint to an appropriate extent; b. Issue a fresh reasoned outcome letter addressing each concern and giving clear findings with a signposting of her rights; c. Provide the Applicant with a timetable for the steps above, including providing an update within 28 days and an outcome within 60; d. Make any further directions deemed necessary.

25. 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.

26. 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.

27. 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.