Mohamed Attia Abdelmohaimen Attia v The Information Commissioner [2026] UKFTT 1133 (GRC)

[2026] UKFTT 01133 (GRC)Case Reference: FT/EA/2026/0207/GDPR
First-tier Tribunal
(General Regulatory Chamber)
Date 10 August 2026
Information Rights
Decided without a hearing
Before
JUDGE HARRIS
Between
Mohamed attia abdelmohaimen attiaApplicantTHE 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.REASONS
[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 Metropolitan Police Service (“MPS”) in relation to its handling of his personal data and response to a Data Subject Access Request (“DSAR”). The complaint was submitted to the Information Commissioner (“IC”) on 8 April 2026 and was dealt with under reference IC-500661-W9K6.[2]On 28 May 2026, the IC’s case officer wrote to the Applicant. The case officer explained that, based on the information available, the IC had not identified factors such as wider impact or a broader data protection concern which would justify further investigation at that stage. The complaint was therefore recorded for information purposes.[3]On the same day, the Applicant sent further correspondence to the case officer, expressing his dissatisfaction with the outcome.[4]On 29 May 2026, the IC’s case officer again wrote to the Applicant. They explained the IC’s role and how some of the matters raised by the Applicant fell outside of the IC’s remit. The case officer noted that some aspects of the complaint submitted by the applicant may relate more to the conduct of the Police as opposed to data protection, and that if this was the case, the Applicant may wish to contact the Independent Office for Police Conduct. In respect of the DSAR response, the case officer explained that there can be various legitimate reasons why information may be redacted from a response. The case officer noted that as they had not had sight of the DSAR response, the Applicant was invited to share a copy with the IC, which he has not yet done. The Application[5]The Applicant initially applied to the Tribunal by way of form GRC1 dated 29 May 2026. At the Tribunal’s request he subsequently submitted a form GRC3 dated 8 June 2026. He stated that the outcome he was seeking was “an immediate, legally binding order” compelling the IC and MPS to comply with the DPA 2018 and promptly disclose the information he sought in his DSAR. In addition, he sought a formal order recognising “structural non-compliance and systemic evidence withholding” by the MPS.[6]In his grounds for the Application, the Applicant stated that he was seeking an order to compel the IC and MPS to disclose the information sought by his DSAR. He stated that the MPS had “committed a gross data protection breach and institutional cover-up by unlawfully withholding and manipulating critical forensic evidence” and that disclosure was required to assist in formulating a civil damages claim.

The strike-out application

[7]The IC applied by way of form GRC5 dated 7 July 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”).[8]The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 31 to 34. In summary, these were as follows:a. The remedies sought by the Applicant in relation to this matter are not within those available to the Tribunal under section 166 DPA18. 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. 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).c. The IC has taken appropriate steps to investigate and respond to the Applicant’s complaint and providing them with an outcome on 28 May 2026 and a further explanatory letter on 29 May 2026. 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.d. If the Applicant wishes to seek an order of compliance against the data 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.[9]On 16 July 2026, Registrar Bamawo directed that the Applicant should provide representations in relation to the strike out application by 31 July 2026 under Rule 8(4)[10]The Applicant replied to the Tribunal by email dated 17 July 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 Tribunal has full jurisdiction to consider the matter and there is a profound reasonable prospect of success based on “new undeniable material evidence that has just been released” which appears to be some of the material previously sought by the DSAR.b. This case arises directly from the systematic and unlawful withholding of the Applicant’s personal data and critical evidence by the MPS and the subsequent failure of the IC to enforce compliance under the Data Protection Act 2018 (DPA) and GDPR regulations.c. The new information released appears to be considerably more substantial than was previously asserted by the MPS. The IC’s previous complaint handling and attempt to dismiss his complaint without investigating this “represents clear maladministration and a failure to protect my statutory data rights”.d. He asserts that “Striking out this matter would allow public authorities to violate data protection laws with impunity and facilitate the active concealment of evidence”. He wishes all hidden evidence to be judicially examined at a full hearing. Legal framework[11]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.” 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.”
[12]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.[13]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.”
[14]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."[15]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...”.[16]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).[17]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).[18]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.”[19]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[20]I have decided to deal with this matter without a hearing, despite the fact that the Applicant stated in his email dated 17 July 2026 that that the matter “proceed immediately to a full hearing”. The Applicant had previously requested in his form GRC3 that the Application be determined without a hearing.[21]The reason why I have proceeded in this way 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 and whether there is a reasonable prospect of the Application succeeding. This turns only on the legal construction of section 166 of the DPA 2018. I am not persuaded that additional oral evidence from the Applicant is required in order fairly to determine the issue of jurisdiction or success, or indeed would add anything substantive to the issues already ventilated.. 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 and prospect of success. I note also that Rule 32(4) permits the Tribunal to strike out a case under Rule 8 without an oral hearing.[22]Turning to the questions before the Tribunal, 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 28 May 2026 with a further response on 29 May 2026. I am satisfied that, when taken together, 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). As set out in the case of Smith, it is not for this Tribunal to consider the way in which the IC has handled the complaint, only whether it should order the IC to progress it. The fact that the Applicant does not agree with the outcome does not render it wrong in law.[23]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.[24]The outcome sought by the Applicant in the Application is disclosure by MPS of the information it has withheld. The Tribunal has no power under section 166 to direct MPS to make disclosure to the Applicant. Its powers are limited to ordering the IC to progress its handling of the Applicant’s complaint.[25]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 by the data controller, here MPS, need to be sought through civil action. Accordingly, I find that the Tribunal does not have the power to grant the outcomes sought.[26]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.[27]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.