Killock and another v Information Commissioner

Held, refusing the application in the first case, granting the application in the second case and dismissing the appeal in the third case, that the remedy in section 166 of the Data Protection Act 2018 was limited to the procedural failings identified in section 166(1), namely the failure of the Information Commissioner to (a) respond appropriately to a complaint, (b) provide timely information in relation to a complaint and (c) provide a timely complaint outcome; that, thus, on an application under section 166 the tribunal would not be concerned and had no power to deal with the merits of the complaint or its outcome, which were matters for the commissioner as the expert regulator; that this construction of section 166 as a purely procedural provision did not mean that the rights of data subjects were not protected to the extent required by the UK GDPR or by the Charter of Fundamental Rights of the European Union, since the infringement of such rights was remediable in the courts under sections 167 to 169 of the 2018 Act and if the commissioner went outside her statutory powers or made any other error of law, the High Court would correct her on ordinary public law principles in judicial review proceedings; that, on the other hand, a section 166 order should not be reduced to a formalistic remedy, the various types of order set out in section 166(2) having real content in the sense of ensuring the progress of complaints; that the question of what amounted to an “appropriate step” within the meaning of section 166 was to be decided by the tribunal itself to an objective standard, rather than being determined by the opinion of the commissioner or by considering whether the commissioner’s opinion was reasonable and correct in law, although the tribunal would be bound to take into consideration and give weight to the views of the commissioner as an expert regulator; that, moreover, section 166 was a forward-looking provision that was concerned with remedying ongoing procedural defects which stood in the way of the timely resolution of a complaint, and the tribunal was tasked with specifying appropriate “steps to respond” and not with assessing the appropriateness of a response which had already been given; that, in the first case, the commissioner’s response to the applicants’ complaint complied with all the requirements of section 165 and there would be no order against her; that, in the second case, the commissioner had failed to take such steps as were appropriate to respond to the applicant’s complaints in that she had declined to investigate them on the basis of a misinterpretation of her own Service Standards and, accordingly, an order would be made under section 166(2)(a) requiring her to take appropriate steps to respond to those complaints; and that, in the third case, there was no reason or cause to grant an extension of time for applying for a section 166 order and, in any event, the application lacked merit (post, paras 74–77, 83–88, 105–106, 113–118, 125–129).

R (XH) v Secretary of State for the Home Department[2018] QB355, CA, Platts v Information Comr [2019] UKFTT 2018_0211 (GRC), Milne v Information Comr [2020] UKFTT 2020_0296 (GRC), Blaylock v Information Comr[2019] Imm AR1048 and Leighton v Information Comr (No 2) [2020] UKUT 23 (AAC), UT considered.

Per curiam. A comprehensive strategic review of the various appellate mechanisms for rights exercisable under the 2018 Act is long overdue (post, paras 130–131).

Dicta of Upper Tribunal Judge Wikeley in Scranage v Information Comr [2020] UKUT 196 (AAC), para 34, UT approved.