Andrzej Witold Kuczys v The Information Commissioner [2026] UKFTT 1000 (GRC)

[2026] UKFTT 01000 (GRC)Case Reference: FT/EA/2026/0147/GDPR
First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Decided without a hearing
Amended decision given on 19 August 2026
Before
JUDGE HARRIS
Between
ANDRzej Witold KuczysApplicantTHE INFORMATION COMMISSIONERRespondentDecision: The Application is struck out under Rule 8(2)(a) because the Tribunal does not have jurisdiction to deal with it and under Rule 8(3)(c) because there is no reasonable prospect of it succeeding.REASONSDate 2026-08-19
[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 a data controller (the “Controller”) regarding the handling of his personal data and how the Controller responded to his Data Subject Access Request (DSAR). The complaint was submitted to the Information Commissioner (“IC”) on 21 February 2025 and was dealt with under reference IC-366691-L0J4.[2]In summary the complaint was about the following complaints he had made to the Controller:a. Correspondence marked confidential raising concerns about the use of CCTV recording by the Controller being opened by staff and concerns not delivered.b. A request for CCTV footage from the Controller was refused.c. Staff at the Controller having access to and the ability to disclose or distribute his personal data without his express or implied consent.d. Failure to supply sufficient information in response to his DSAR.[3]Between 22 April 2025 and 28 October 2025, the Applicant had made several calls to a number of the IC’s case officers requesting an update concerning the progression of the complaint.[4]On 30 October 2025, the assigned case officer notified the Applicant the case had been allocated.[5]Between 30 October 2025 to 15 December 2025, there was further correspondence between the IC’s case officer and the Applicant concerning the request for further information, which was provided by the Applicant.[6]On 17 December 2025, the case officer wrote to the Applicant. It was explained by the case officer that based upon the information that the Applicant provided, it was considered that the Controller could done more to resolve the complaint. The case officer further explained, following her review of the information provided, that rather than refusing the request for CCTV footage the Controller had offered the Applicant the opportunity to view some of the CCTV footage he had requested which the IC considered to be a reasonable action to take in the particular circumstances. Accordingly, the case officer concluded, having regard to the above, that the Controller had complied with the Applicant’s CCTV request. However. the case officer explained that there were deficiencies identified in the Controller’s response to the Applicant’s DSAR, namely its failure to supply the Applicant’s personal data. Finally, the IC explained that the Applicant’s complaint had afforded an opportunity for the IC to provide advice to the Controller concerning their information rights practices and had written to them on the same date in respect of these issues.[7]On the same day, the case officer wrote to the Data Protection Officer at the Controller, summarising the Applicant’s complaint and setting out the further steps that the Controller needed to take in order to resolve the Applicant’s complaint.[8]On the same day, the Applicant called and expressed his dissatisfaction with the outcome to his complaint.[9]The case officer sent a further email, also on that day, to the Controller asking for clarification of number of specific aspects of the Applicant’s complaint.[10]On 26 December 2025, the Controller responded to the case officer’s correspondence of 17 December 2025, raising a number of queries, upon which they had sought clarification. The case officer acknowledged this on 7 January 2026.[11]Between 26 January 2026 to 25 March 2026, there was further correspondence between the case officer and the Controller concerning the provision of further information regarding the complaint.[12]On 31 March 2026, the case officer informed the Applicant a response had been provided by the Controller in respect of the Applicant’s complaint and gave further information about this. The case officer explained that:a. the Controller advised that it had a lawful basis for processing the CCTV footage on the grounds of public task and legitimate interest.b. The Controller had confirmed that staff are not authorised to open mail addressed to residents except in exceptional circumstances, which are recorded and there was no record of residents’ mail being opened by staff.c. In relation to the discussion and sharing of the Applicant’s personal information, the Controller explained that it does not rely on consent, but on other lawful bases under the UK GDPR, including public task, legal obligation and vital interests under Article 6 and relevant conditions under Article 9 where special category data is processed, particularly for safeguarding and health or social care purposes. The Controller advised that this information sharing is explained within their privacy notice and information-sharing arrangements.[13]The case officer confirmed that the IC was satisfied that the Controller had explained the processing activities complained about and the lawful bases it relies on under the UK GDPR. They concluded that they had not identified evidence that would justify further regulatory action by the IC.[14]On the same date, the case officer had written to the data protection officer at the Controller in similar terms.[15]Between 31 March 2026 and 1 April 2026, the Applicant expressed further dissatisfaction with the final outcome of his complaint. The IC acknowledged this and interpreted it as a request for a case review.[16]On 30 April 2026, the IC’s reviewing officer wrote to the Applicant informing him they were satisfied that the case officer dealt with the complaint appropriately and in line with the IC’s complaint handling procedures. They confirmed that the IC would not be pursuing this further. They also noted that they would be contacting the Controller with further guidance about a privacy policy and guidance around processing of personal data. The Application[17]The Applicant applied to the Tribunal by way of form GRC3 dated 16 April 2026. He stated that the outcome he was seeking was as follows:
“For the Commissioner to take appropriate steps to respond to each point raised in my complaint.”
[18]In his grounds for the Application, the Applicant in summary made the following points:a. He stated his belief that in negation of obligations imposed, whilst acting in the capacity as a supervisory body, the IC did not investigate to the extent appropriate the subject matter of his complaint.b. He asserted that the IC’s conclusions did not accord with the law and that his discretion ought to have been exercised differently.c. The IC had not, in providing a response to his complaint, determined which aspects of the UK GDPR are relevant.d. He stated that the IC had disregarded every salient point of concern he had raised and gave too much weight to the evidence of the Controller.e. He argued that the Controller ought to be treated as a public authority for the purposes of data protection legislation.

The strike-out application

[19]The IC applied by way of form GRC5 dated 18 May 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”).[20]The reasons which the IC gave for striking out the application were set out in its Response. In summary, these were as follows:a. Whilst the relief sought is amenable to the jurisdiction of the Tribunal as falling within section 166(1)(a) of the DPA18, where the Tribunal can exercise its powers to make an order under section 166(2) of the DPA18, the provision of the outcome on 17 December 2025 and further elucidated on 31 March 2026, as upheld on 30 April 2026, precludes the Tribunal from making an order as there is nothing to progress regarding the complaint as the IC had taken all necessary steps regarding the complaint. An Application under section 166 of the DPA18 permits a Tribunal to make an order against the IC only if he has failed in some procedural respect and as stated above, there are no procedural lapses by the IC in the circumstances of this case.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. The IC also notes that the Applicant subsequently indicated on 10 April 2026 that he had not requested a case review, despite having confirmed that he would like to have case review conducted on 1 April 2026. Nevertheless, and despite the Applicant’s subsequent indication that he did not wish to continue with a review, the IC nevertheless proceeded to conclude the review, as a matter good practice, in the exercise of his broad discretion, considered the handling of the request afresh to ascertain whether there were any further steps that needed to be taken on the complaint, and concluded that there were none. and that the complaint was handled appropriately and upheld the original outcome, confirming that no further action was necessary.d. It is clear that the Applicant disagrees with the outcome provided 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).e. 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.[21]The Applicant provided a Reply to the Response dated 23 May 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. He is not making an application for an order under section 166 DPA 2018, but appealing an information notice which carries a right of appeal under section 162(1) and seeking an order under section 163(1) and (2) DPA 2018.b. The Tribunal has good reason to interfere with the IC’s decision.c. The IC’s review “appears almost as a standard method of rejection which does not evaluate in any detail the issues raised by the Applicant.”d. The IC did not convey any clear cut reason or legal basis for the outcome. Legal framework[22]Section 162(1) of the DPA provides as follows:
“A person who is given any of the following notices may appeal to the Tribunal— (a)an information notice; (b)an assessment notice; (ba)an interview notice; (c)an enforcement notice; (d)a penalty notice; (e)a penalty variation notice.”
[23]The requirements for each of these formal notices are set out in paragraphs 142 to 159 inclusive of the DPA 2018. The powers of the Tribunal to determine such appeals is set out at section 163.[24]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 - (2) The Tribunal may, on an application by the data subject, make an order requiring 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. 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.”
[25]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.[26]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.”
[27]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."[28]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...”.[29]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).[30]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 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.” (paragraph 33).[31]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.”[32]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[33]I have decided to deal with this matter without a hearing, despite the fact that the Applicant stated in his GRC3 that he wished the matter to be dealt with at a hearing[34]The reason why I have done so is that the issue I need to determine at this stage is a straightforward one, namely whether the Tribunal has jurisdiction to hear the Applicant’s Application. This turns only on the legal construction of sections 162 and section 166 of the DPA 2018. The Applicant has already filed extensive written submissions and documentary evidence addressing the Tribunal on these points. I am not persuaded that additional oral evidence from the Applicant is required in order fairly to determine the issue of jurisdiction, or indeed would add anything substantive to the issues already ventilated. The IC has not at this stage provided any witness evidence, so cross-examination would be inappropriate. I have taken into account the overriding objective, particularly dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; avoiding unnecessary formality and seeking flexibility in the proceedings; ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; and using any special expertise of the Tribunal effectively. While I recognise that the fair determination of this case is very important to the Applicant, I do not consider it a proportionate use of resources to require an oral hearing to determine the issue of jurisdiction. I note also that Rule 32(4) permits the Tribunal to strike out a case under Rule 8 without an oral hearing.[35]Dealing first with whether the Applicant has the right to appeal under section 162 of the DPA 2018, it is clear to me as a matter of fact that no formal notice, whether an information notice or other notice, giving rise to such a right has been issued by the IC in this case. The “notices” the Applicant seeks to appeal are in fact letters dated 17 December 2025, 31 March 2026 and 30 April 2026, communicating the IC’s outcome and review outcome to its handling of the Applicant’s complaint. These letters do not comply with the statutory requirements for formal notices set out in sections 142 to 159 of the DPA 2018 and do not give rise to a right of appeal under section 162. Accordingly, insofar as the Applicant’s Application purports to be such an appeal, it is invalid and the Tribunal therefore has no jurisdiction to deal with it.[36]I then turn to whether there is jurisdiction in relation to an application under section 166. I note that the Applicant explains in his submissions dated 23 May 2026 that he did not intend his Application in fact to be an application under section 166.[37]I am satisfied that when taken together the responses dated 17 December 2025 and 31 March 2026 and review response dated 30 April 2026 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.[38]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.[39]The outcome sought by the Applicant is also, 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.[40]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.[41]I have considered under Rule 8(2)(b) whether to exercise the Tribunal’s discretion under rule 5(3)(k)(i) to transfer the proceedings to another court but have decided not to do so. As the outcome the Applicant appears to want is compliance by the data controller, I consider that it would be inappropriate to do so because:a. the data controller is not a party to the section 166 proceedings;b. the proceedings do not address the civil cause of action against them;c. The civil courts do not have jurisdiction in relation to section 166 DPA 2018; andd. The IC would not be party to the compliance proceedings under section 167.[42]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.[43]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.