Rossella D’agostino 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 the Royal Opera House (“ROH”) regarding their response to her Data Subject Access Request (“DSAR). The complaint was submitted to the Information Commissioner (“IC”) on 4 February 2024 and was dealt with under reference IC-286611-L8B5.

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31. On 26 June 2024, the IC’s case officer issued a formal update to the Applicant, confirming that he had contacted the ROH asking it to explain the reasons for withholding information from its DSAR response. The case officer advised that, upon receipt of a response, an outcome would be communicated to the Applicant.

3. On 30 July 2024, having obtained the correct contact email address, the case officer forwarded the complaint to the ROH’s data protection team and requested that the organisation review its handling of the DSAR and provide an explanation for the redaction of information.

4. On 1 August 2024, the case officer wrote to the Applicant, explaining that there had been an initial delay in obtaining the contact details for the data protection team and confirming that the ICO was currently awaiting a formal response from the ROH.

5. On 21 August 2024, the ROH responded to the case officer, providing its reasoning for the handling of the request and the decision to withhold certain information.

6. On 15 October 2024, the Applicant was provided with an update regarding the progress of the complaint.

7. Having reviewed the information provided, the IC’s case officer wrote to the Applicant and the ROH on 20 November 2024. It was noted that the Applicant submitted her DSAR on 8 November 2023 and that the ROH issued its response on 8 December 2023, thereby complying with the statutory timeframe. The ROH also confirmed that certain information was withheld on the basis that it comprised third-party personal data. Following a subsequent review, additional material was disclosed on 23 January 2024. The case officer determined that this approach was consistent with the IC’s guidance, which permits redaction to safeguard the rights of other individuals, and concluded that there was no evidence of non-compliance or infringement of the relevant data protection legislation. Accordingly, the case officer advised the Applicant that no further action would be taken and the complaint was closed.

8. The Applicant responded on the same day and expressed her dissatisfaction with the outcome. The Application

9. The Applicant applied to the Tribunal by way of form GRC1 dated 25 November 2024. She stated that the outcome she was seeking was as follows: “ l respectfully request that the Tribunal review the ICO’s decision and determine whether the RBO’s handling of my SARs was compliant with the UK GDPR and Data Protection Act 2018 . Specifically, I ask the Tribunal to consider the following: Whether the RBO’s redactions of six entire pages, including witness statements and a list of events, were proportionate and necessary. Whether the RBO should be required to release anonymised versions or summaries of the withheld information .”

10. In her grounds for the Application, the Applicant explained that she disagreed with the IC’s decision regarding her complaint about the DSAR to the ROH. She explained that this related to alleged inappropriate behaviour while working at the ROH. She had made a DSAR for information on 8 December 2023, but the information which she received in response was partially redacted for the protection of third-party data. She subsequently made another DSAR on 16 January 2026, the response to which was also partially redacted. A third DSAR was refused by the ROH.

11. The Applicant identified several grounds for her Application, which, in summary were as follows: a. The redacted pages of the ROH’s DSAR response contain crucial information directly relating to her and the third-party data could be anonymised while still sharing this information. Anonymised information would adequately protect third part identities without compromising the Applicant’s right to access her personal data. b. The identities of the third parties would not be evident when properly redacted and it would in any event be impossible for her to identify specific individuals due to the context of the information. c. The ROH’s refusal to provide any context around the incidents in question is disproportionate, unfair and lacks transparency. d. The IC did not examine whether the extent of the redactions and outright refusal of the third DSAR were proportionate or necessary under the circumstances. It did not require sufficient evidence that anonymisation or partial disclosure was not possible. The strike-out application

12. The IC applied by way of form GRC5 dated 8 January 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”).

13. The reasons which the IC gave for striking out the application were set out in its Response. In summary, these were as follows: a. The Application was made out of time. Accordingly, the Tribunal has no jurisdiction under Rule 8(2)(a) of the Tribunal Rules to consider an application brought outside the statutory time limit, and in any event, no exceptional circumstances have been advanced to warrant a departure from the Rule 22(6)(f) of the Tribunal Rules. b. 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. c. It is clear from the grounds in support of the application that the Applicant does not agree with the outcome provided on her 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. If the Applicant wishes to seek an order of compliance against the Police 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.

14. The Applicant provided a Reply to the Response dated 12 January 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, in summary, were as follows: a. In relation to the Application having been made out of time, the Tribunal has discretion to extend time. The Applicant was unrepresented, reasonably relied on the IC’s progress updated and applied within days of being notified of the closure of the complaint. The Applicant argues that she was unaware of the time limit, which she accepts was not sufficient excuse, but also considers that the IC did not flag any impending deadline to her. b. The Applicant does not seek a merits review of the IC’s outcome under section 165. She seeks procedural directions requiring the IC to take appropriate steps before final closure. c. The outcome from the IC does not show that appropriate procedural steps were taken or tested. She contends that, as a minimum, appropriate steps in a mixed data SAR context should include: • Requiring a granular mixed-data analysis of the report (line-by-line feasibility of redaction/pseudonymisation); • Where direct extracts would identify third parties, requiring structured summaries conveying the Applicant’s own data and the finding/reasons about her; • Identifying the specific exemptions relied upon and explaining why redaction/summary/consent was not feasible; and • Obtaining search-adequacy evidence (systems, date ranges, keywords). d. She states that she seeks an order under section 166(2) requiring these steps to be taken and for the IC to issue a reasoned outcome addressing those, providing updates if this is not concluded within three months. Legal framework

15. 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.”

16. 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.

17. 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.”

18. 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."

19. 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... ”.

20. 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).

21. 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.”

22. 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.”

23. 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.”

24. The proper approach to deciding whether to admit applications which are out of time was set out by the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 , [2014] 1 WLR 795 , Denton v TH White Ltd [2014] EWCA Civ 906 , [2014] 1 WLR 3926 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663. The approach was summarised in Secretary of State for the Home Department v SS (Congo) & Others [2015] EWCA Civ 387 as comprising three stages. First, the seriousness of the delay must be assessed. Second, the reason for the delay must be considered. Third, all the circumstances of the case must be weighed so as to deal with the matter fairly and justly. Discussion and conclusions

25. I deal first with the question of whether the Tribunal has jurisdiction to deal with the Application or whether there is any reasonable prospect of success, because if I find that the Application should be struck out on these grounds there will be no need to proceed to consider whether it is in time.

26. The first question is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response to her complaint on 20 November 2024 which concluded there was no evidence of non-compliance or infringement of the relevant data protection legislation and closed the complaint. I consider that the response dated 20 November 2024 was in fact an outcome to the complaint, because it 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.

27. The IC’s response disclosed the steps it had taken to verify the position with the ROH. It also noted that the ROH had employed a third party to review the information held about the Applicant following the initial DSAR response to see if further information could be provided, which resulted in further disclosure. It also explained that the ROH had redacted the response because it constituted the personal data of other individuals.

28. It appears to me therefore that there are no further appropriate steps which the IC ought reasonably to take to progress the complaint. I am not persuaded that the steps identified by the Applicant in her Reply were ones which it was appropriate for the IC as opposed to the ROH to have taken, because the ROH had indicated that it had carefully reviewed the information more than once . 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.

29. The outcome sought by the Applicant is also, in effect, challenging the substantive outcome of the complaint to the IC, because she seeks a further decision from the IC having conducted the steps she wishes them to take. She also states in terms in her grounds of appeal that she disagreed with the IC’s decision regarding her complaint about the DSAR to the ROH and believes that additional information ought to have been provided. 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 in relation to the handling of a complaint 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.

30. 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.

31. Having decided that, there is no need for me to go on to consider whether or not the Application is out of time, because the Tribunal must strike out proceedings with which it does not have jurisdiction to deal, so in any event the Application cannot proceed.

32. 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.