John Windas v Information Commissioner [2025] UKFTT 473 (GRC)

[2025] UKFTT 00473 (GRC)Case Reference: FT/EA/2025/0111
First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Decided without a hearing
Decision given on: 30/04/2025
Before
JUDGE HARRIS
Between
JOHN WINDASAppellantINFORMATION COMMISSIONERRespondentDecision: The application is struck outREASONSDate 2025-04-28
[1]This is an application against a decision of the Information Commissioner (“the Commissioner”) set out in a letter dated 21 August 2024 under reference IC-303616-S2J9 (the “Decision”).[2]The Decision concerned a complaint made to the Commissioner by the Appellant on 29 April 2024 about Withernsea Town Council’s (“WTC”) handling of a request made under Article 15 of the UK GDPR by the Appellant to exercise his subject access rights, commonly known as an “SAR”. Although it is not described as such, the Appellant’s complaint to the Commissioner appears to have been brought under section 165 of the Data Protection Act 2018 (“DPA 2018”).[3]The Decision set out the steps which the Commissioner recommended in respect of the Appellant’s SAR, namely that the Appellant clarify his SAR with WTC. The Commissioner further explained that he did not consider it appropriate to take further action and had now closed the case.[4]The application was received in full by the Tribunal on 3 March 2025. The Appellant has, however, provided evidence to support his case that he previously tried to file his appeal by posting it on 7 October 2024. The application was placed before Judge Scherbel-Ball on 2 April 2025 to consider whether the application has been brought out of time and whether the Tribunal should extend time.[5]In his decision, Judge Scherbel-Ball identified that there was a substantive question of whether the Tribunal has jurisdiction to hear the application at all, which needed to be determined before the Tribunal could decide on extension of time. This is because it appeared that the appellant was seeking to appeal the substance of the Decision not to take further steps in respect of the appellant’s complaint about the SAR. Judge Scherbel-Ball therefore directed the parties to make representations on the issue of jurisdiction and whether the matter should be struck out under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the Rules”), so that the application for extension of time can be properly considered.[6]The Appellant responded by a letter received by the Tribunal on 18 April 2025. He made no submissions as to jurisdiction, but explained that he did not consider the application had been brought out of time. He noted that when the Commissioner wrote to WTC on 23 July 2024, it stated that “having reviewed the evidence John Windas has provided we take the view Withernsea Town Council has more work to do to fulfil his requests”. The Commissioner gave WTC 28 days to provide this information which expired on 20 August 2024. It then made the Decision the following day. The Appellant says that the Commissioner’s decision was “immature”, which I understood to mean that it was made before it should have been. The reason was that WTC asked for an extension of time from the Commissioner to provide the information and was granted a further 28 days. WTC responded substantively to the Appellant’s request by a letter on 25 September 2024.[7]The Commissioner made written representations to the Tribunal on 24 April 2025 in respect of jurisdiction. The Commissioner submits that it has taken steps to investigate and respond to the complaint and provided an outcome to the Applicant’s complaint on 23 July 2024 and 6 September 2024. It has therefore taken steps to comply with the procedural requirements set out in section 166(1) of the DPA 2018.[8]The Commissioner opposes the application in its entirety and seeks to have it struck out pursuant to rules 8(2)(a) and/or (3)(c) of the Rules on the basis that the Tribunal lacks jurisdiction to make the orders sought and/or because the application does not have a reasonable prospect of success[9]On an application to the Tribunal under section 166, the Tribunal has no power to deal with the merits of the complaint to the Commissioner or its outcome (confirmed in Killock & Veale & ors v Information Commissioner [2021]UKUT 299 (AAC) (“Killock & Veale”).[10]Further, once an outcome to a complaint has been provided, the Tribunal has no power retrospectively to order the Commissioner to take appropriate steps to respond to the complaint, where that might lead to a different outcome. That is because once a decision has been reached, challenges to the lawfulness of the process by which it can be reached or to its rationality are a matter for judicial review by the High Court, and not a matter for the Tribunal. (Killock & Veale and R (on the application of Delo) v Information Commissioner and Wise Payments Limited [2022] EWHC 3046 (Admin), upheld by the Court of Appeal at [2023] EWCA Civ 1141.[11]As the Upper Tribunal put it in a refusal of permission to appeal in Cortes v The Information Commissioner (Appeal No: UA2023-001298-GDPA):
“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). It will do so in the context of securing the progress of the complaint in question” (Killock and Veale, paragraph 87).”
[12]An ‘outcome’ must therefore be the end point of the Commissioner’s ‘handling’ of a complaint. A conclusive determination or ruling on the merits that brings an end to the complaint is certainly an ‘outcome’ but that word is intended to have broader connotations. In Killock & Veale, the Upper Tribunal decided that it embraced a decision to cease handling a specific complaint whilst using it to inform and assist a wider industry investigation[13]I do not accept that there is in this Application any challenge to the ‘appropriate steps’ taken by the Commissioner. There is certainly no challenge to the appropriate steps which would not involve reopening that outcome. The application and supporting documentation appears to be concerned primarily with the perceived shortcomings of WTC rather than the Commissioner. In particular, it states in terms “I disagree with WTC" and “I reiterate my concern about WTC having appropriate systems in place to comply with the law”. However he does also state in the additional note dated 22 January 2025 “I am both disappointed with the outcome and how this has been handled by the [Commissioner]” so there is some element that relates to the Commissioner.[14]The Decision, particularly when taken together with the Commissioner’s letter of 6 September, was the outcome of the complaint. The Tribunal does not have any remit to consider whether or not that outcome was substantively correct.[15]I conclude therefore that this case does not fall within the narrow circumstances in which the Tribunal might be able to make an order under section 166(2)(a) (appropriate steps to respond to the complaint) after the complainant has been informed of the outcome of their complaint.[16]I find for these reasons that the Tribunal does not have jurisdiction and for the same reasons that the application has no reasonable prospect of success.[17]The application is therefore struck out under Rule 8(2)(a) and 8(3)(c) of the Rules and there is no need to go on to consider whether or not it was made within time or whether an extension of time should be granted. I therefore decline to deal with the extension of time.