Richard Rawlins v The Information Commissioner [2026] UKFTT 1152 (GRC)

[2026] UKFTT 01152 (GRC)Case Reference: FT/EA/2026/0203/GDPR
First-tier Tribunal
(General Regulatory Chamber)
Date 18 August 2026
Information Rights
Decided without a hearing
Before
JUDGE HARRIS
Between
Richard RawlinsApplicantTHE 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 British Medical Association (“BMA”) regarding processing of his personal data and its response to his Data Subject Access Request (“DSAR”). The complaint was submitted to the Information Commissioner (“IC”) on 16 June 2025 and was dealt with under reference IC-394796-V1R9.[2]On 19 December 2025, the IC’s case officer wrote to the Applicant requesting further information about the Applicant’s complaint.[3]Between 20 December 2025 and 23 February 2026, the Applicant informed the case officer that he had lost his complaint form and sent further emails regarding the progress of his complaint.[4]On 2 April 2026, the IC’s case officer sent the Applicant his original complaint form and requested further information about the Applicant’s complaint.[5]On 16 April 2026, the case officer provided the Applicant with an update on his complaint and advised that they were awaiting a response from the BMA to properly assess the complaint.[6]On 7 May 2026, the IC’s case officer wrote to the Applicant. The case officer explained that the information shared by the BMA was restricted to staff, investigators, panel members and external advisers involved in managing, investigating and determining a complaint and any subsequent appeals. It was shared only for those purposes, and subject to confidentiality obligations, and in accordance with its Resolution Process and Privacy Policy. The case officer explained that in the IC’s view the BMA had complied with UK GDPR, and the IC had not identified sufficient evidence to determine otherwise. Accordingly, no further action would be taken and the complaint would be closed[7]On 14 May 2026, the Applicant provided further information and requested the case officer to reconsider the outcome set out in their email dated 7 May 2026.[8]On 21 May 2026, having considered the further information provided, the case officer confirmed the conclusion that based on the information available, including the explanations provided by the BMA, the IC had not identified sufficient evidence of non-compliance with UK GDPR. The case officer explained that matters relating to the application of internal disciplinary rule or whether those rules were correctly applied falls outside the IC’s remit. The case officer informed the Applicant of their right to seek independent legal advice and seek a remedy through the courts. The Application[9]The Applicant initially applied to the Tribunal by way of form GRC1 dated 25 May 2026. He subsequently submitted a form GRC3 dated 8 June 2026. He stated that the outcome he was seeking was as follows:
“I ask the Tribunal to allow the appeal, find that the relevant personal data was confidential, included health-related information and should not have been accessed or used by the BMA for any purpose. I invite the Tribunal to set aside ICO's decision on the basis that the Commissioner failed properly to address the requirements of Articles 6, 9 and 14 UK GDPR and the requirements of procedural fairness in the decision-making process I ask that any further account or justification advanced by the BMA be disclosed to me so that it may be answered before a final determination is made.”
[10]In his grounds for the Application, the Applicant, in summary, raised the following points:a. The IC’s decision not to investigate was erroneous in fact and law because the IC accepted inaccurate, incomplete and misleading assurances from the BMA, failed properly to assess the sensitive of the personal data in issue and failed to determine whether there was any lawful basis for the access to, use of and disclosure of the data complained of.b. He states that the issues for the Tribunal are:• (i) whether the IC erred in concluding that there was insufficient evidence of non-compliance with the UK GDPR. The Applicant says that it did;• (ii) whether the BMA had any lawful basis under Article 6 UK GDPR to access, retain, use and disclose the email. The Applicant contends that the lawfulness of the processing had to be established before the BMA could rely on the existence of its own process to justify it;• (iii) whether any reliance on Article 9(2)(d) was available on the facts. The Applicant says it was not;• (iv) whether the BMA complied with the transparency requirements imposed by Article 14. The Applicant says that it did not and that the IC’s response does not properly address this; and• (v) whether the IC’s determination was procedurally unfair because the Applicant was not given a fair opportunity to address the BMA’s explanations before the determination was made.The Applicant contends that the non-adversarial nature of the IC’s complaints process does not displace the requirements of procedural fairness and the Applicant should have been given an opportunity to address the substance of information provided by the BMA.c. The Applicant says that on the facts already before the IC, the processing lacked a lawful basis from the outset, that the Article 14 transparency obligations were not complied with once the data had been obtained from a third party, and that the IC’s reasoning failed to engage with those issues in a legally sufficient manner.

The strike-out application

[11]The IC applied by way of form GRC5 dated 6 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”).[12]The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 25 to 29 and 44 to 46. 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. 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. It is clear that the Applicant disagrees with the outcome provided on his complaint. However, 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 Police 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.[13]Judge Mornington directed on 16 July 2026 that the Applicant should provide representations in relation to the strike out application by 31 July 2026 under Rule 8(4)[14]The Applicant provided submissions which deal with the strike-out application on 30 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 Application is properly brought because it challenges the adequacy of the IC’s procedural handling of the complaint. The Applicant contends that appropriate procedural steps were not taken before the outcome was reached.b. the IC accepted the BMA’s explanation for accessing and using the Applicant’s private correspondence without adequately testing whether that explanation was supported by the facts, by the BMA’s constitution or disciplinary framework, or by any lawful basis under data protection law.c. The IC did not adequately address central matters necessary to decide whether further regulatory consideration was required, including whether the correspondence was outside BMA business; whether the BMA had any proper disciplinary jurisdiction or constitutional authority to rely upon; whether Articles 6 and 9 UK GDPR were properly engaged; and whether the confidential and health-related nature of the correspondence required closer scrutiny.d. An outcome reached after accepting a controller’s assertion without testing the central disputed premise may still disclose a procedural failure, particularly where that premise concerns the alleged lawful basis for processing confidential and health-related personal data.e. The IC’s broad discretion is not the same as an entitlement to accept a controller’s explanation without verifying the basis on which it is made, where that explanation is central to the outcome and is squarely disputed by the complainant.f. Section 167 may provide a separate route against the controller, but this application concerns whether the IC properly progressed and responded to the complaint. The existence of another potential remedy does not cure a failure by the IC to take appropriate steps within the statutory complaints process.g. the Applicant further invites the Tribunal to order the IC to take additional appropriate steps to respond to the complaint, including proper consideration of the BMA’s asserted authority and lawful basis for accessing, using and circulating the Applicant’s confidential correspondence. 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 - (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.”
[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 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).[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 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.”[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]I have decided to deal with this matter without a hearing, despite the fact that the Applicant stated in his GRC3 that they wished the matter to be dealt with at an oral hearing.[25]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 and whether the Application has any reasonable prospect of success. I am not persuaded that additional oral evidence from the Applicant is required in order fairly to determine the issue of jurisdiction or chances of 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 prospects of success in the context of this strike-out application. I note also that Rule 32(4) permits the Tribunal to strike out a case under Rule 8 without an oral hearing.[26]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 7 May 2026 . I consider that the response dated 7 May 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.[27]Even if I am wrong on this, I am satisfied that when taken together with the response dated 21 May 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.[28]It appears to me therefore that objectively 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.[29]The outcome sought by the Applicant in the Application is:a. That the Tribunal make a finding that the relevant data was confidential and should not have been accessed or used by the BMA for any purpose.b. That the Tribunal set aside the IC’s decision not to investigate on the basis that its consideration of the issues was procedurally unfair.c. That further documents originating from the BMA should be disclosed to him.[30]This is not an appeal against a formal decision notice issued under the DPA 2018, so the Tribunal has no power to quash or set aside the IC’s decision and substitute its own decision. The Tribunal has no power under section 166 to direct BMA to make disclosure to the Applicant. Its powers are limited to ordering the IC to progress its handling of the Applicant’s complaint in the ways set out in section 166(2).[31]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.[32]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, which means it must be struck out. 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.[33]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.