Sayed Samed Talibi 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 the General Medical Council (“GMC”) regarding the handling of his Data Subject Access Request (“DSAR”) dated 24 April 2026. The complaint was submitted to the Information Commissioner (“IC”) on 5 August 2025 and was dealt with under reference IC-411090-F1M0.

2. The Applicant’s complaint stated that, although the GMC sent them all of the information he had asked for, in relation to his DSAR, that the former took too long to do so but also in the complaint form referred to the fact that the GMC had not provided the requested information.

3. The Applicant then lodged a further complaint with the IC on 26 August 2025, in which he stated that the GMC mishandled his DSAR, that the former failed to disclose any substantive personal data by the statutory deadline, that they misrepresented communications, that they imposed indefinite delay and they demanded that the complainant narrowed the scope of a detailed request.

4. On 14 January 2026, the IC wrote to the Applicant and informed him that no further action would be taken against the GMC.

5. On 19 January 2026, following a response from the Applicant, the IC confirmed that no further action would be taken against the GMC.

6. On 20 January 2026, in response to the Applicant, the IC confirmed again that no further action would be taken against the GMC.

7. On 28 January 2026, in response to the Applicant, the IC confirmed again that it would not pursue the complaint further.

8. On 6 March 2026, although the Applicant did not request this, on his own initiative, the IC undertook an independent review of the case and provided the Applicant with a detailed explanation on the basis on which he decided that regulatory action was not appropriate in the case, on whether he considered a failure to comply with DSAR within the statutory timeframe to be a breach and expounded on the threshold to be met for him to take enforcement action in cases of DSAR non-compliance The Application

9. The Applicant applied to the Tribunal by way of form GRC3 dated 13 February 2026. He stated that the outcome he was seeking was as follows: “ I respectfully request that the Tribunal:

1. Set aside the ICO’s decision.

2. Remit the matter to the ICO with a direction to conduct a lawful investigation.

3. Confirm that the ICO cannot lawfully refuse to investigate by directing complainants to obtain court orders.

4. Clarify that the scale of an organisation or the number of complainants is irrelevant to the Commissioner’s statutory duties.”

10. In his grounds for the Application, the Applicant, in summary, raised the following points: a. The IC misinterpreted its statutory duties to monitor and enforce the application of data protection legislation under section 115 DPA 2018. Directing the Applicant to seek enforcement through civil court is an abdication of these responsibilities. The Applicant further argues that the IC “ is not permitted to decline to act simply because the controller is a large or powerful organisation, nor because the complaint originates from a single individual ”. b. The IC’s decision is irrational because it is unreasonable to expect an individual data subject to litigate against a statutory regulator (the GMC) when Parliament has created a specialist regulator, the IC, precisely to avoid that burden. It contradicts the IC’s published guidance and creates “an inconsistent and arbitrary standard: powerful bodies can avoid scrutiny simply by refusing to cooperate, knowing the ICO will not intervene ”. c. The IC failed to: • properly consider the evidence the Applicant provided • Engage with the substance of the Applicant’s complaint. • Provide adequate reasons for refusing to investigate. • Apply the statutory tests required under Article 57 and 58 UK GDPR d. The IC’s refusal to investigate undermines public confidence in regulatory oversight, creates a precedent that public authorities can avoid scrutiny and ignores the systemic risk posed when a regulator mishandles personal data. The Applicant states that “ The Commissioner is required to consider the wider public interest, not merely administrative convenience.” e. Requiring an individual to obtain a court order to enforce basic rights imposes a financial and procedural burden that Parliament did not intend, contradicts the principle of accessibility embedded in the UK GDPR and discriminates against individuals without the resources to litigate. f. The IC’s refusal to use its investigatory, corrective, compliance and administrative powers constitutes a failure to exercise discretion lawfully.

11. The Applicant confirmed that he has also applied to the High Court “ to enforce on the GMC the application for release of the Subject Access Request (KB-2026-BHM-000015 - Talibi v GMC) pending date and time .” The strike-out application

12. The IC applied by way of form GRC5 dated 19 March 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 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 outcomes on 14th January 2026, on 19th January 2026, on 20th January 2026, on 28th January 2026 and finally on 6th March 2026, the latter being an independent review of the case. Accordingly, it is respectfully submitted that the IC 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 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. If the Applicant wishes to seek an order of compliance against the 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.

14. The Applicant provided a Rule 24 Reply which also included a response to the strike-out application on 20 March 2026, 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 IC has failed to take appropriate steps in handling the Applicant’s complaint or to provide a lawful outcome following an investigation “ to the extent appropriate ”. This is because: • it did not, among other things, request evidence from the GRC, test the credibility of the GMC’s explanation, undertake any enquiries or assess whether the justification was plausible. • The IC relied on irrelevant operational considerations such as increase volumes of DSARs. • The letter dated 6 March 2026 refers to a “threshold “for enforcement which amounts to an unlawful fettering of discretion • The IC advised the Applicant to seek relief from the civil courts rather than investigating. b. The IC’s letters in January 2026 were not lawful outcomes, because they contain no reasoning, analysis, explanation of steps taken or application of statutory test, being bare assertions of “ no further action ”. c. The IC’s letter dated 6 March 2026 was not an outcome but a retrospective explanation which confirms that no investigation was undertaken, irrelevant considerations were relied on, an internal threshold was applied and the Applicant was directed to seek relief from court. He states that “ It confirms the procedural failures rather than curing them”. The Applicant argues this is supported by recent reporting by industry and civil society groups in relation to the level of IC enforcement activity. d. The Applicant states that his case is procedural and he is seeking procedural relief not a merits review. e. The Applicant argues that the authorities cited by the IC in his response to not assist because they do not protect failures to investigate, reliance on irrelevant considerations, unlawful fettering of discretion or the absence of a lawful outcome. 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 - 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.”

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 n considering this the Tribunal must, as set out in paragraph 85 of 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.” I 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.” Discussion and conclusions

24. 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 14 January 2026, with additional responses on 19, 20 and 28 January, with a further response on 6 March 2026 following review. I consider that the response dated 14 January 2026 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.

25. Even if I am wrong on this, I am satisfied that when taken together with the responses dated 19, 20 and 28 January and 6 March 2026, 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.

26. 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 .

27. 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. 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. I also note that the Applicant has commenced proceedings in the High Court in this connection.

28. 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.

29. 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.