Fabian Ray v The Information Commissioner [2026] UKFTT 1168 (GRC)

[2026] UKFTT 01168 (GRC)Case Reference: FT/EA/2026/0245/GDPR
First-tier Tribunal
(General Regulatory Chamber)
Date 17 August 2026
Information Rights
Decided without a hearing
Before
JUDGE HARRIS
Between
FABIAN RAYApplicantTHE 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 Hedin Automotive London Limited (“Hedin”) concerning, among other things, its failure to respond properly to a subject access request (“SAR”). The complaint was submitted to the Information Commissioner (“IC”) on 27 March 2026 and was dealt with under reference IC-498589-K0K2.[2]On 15 April 2026, the IC’s case officer wrote to the Applicant, concluding that Hedin had demonstrated compliance with data protection legislation and had dealt properly with the Applicant’s individual rights request. They expressed the view that Hedin had supplied additional information to the Applicant (which they were not required to do so as it was not his personal data) in order to assist him. The case officer wrote to Hedin as the data controller in similar terms on the same date.[3]On the same date the Applicant wrote to the IC requesting a case review. The case officer acknowledged this request on the same day.[4]On 21 May 2026, the IC’s reviewing officer wrote to the Applicant. They informed the Applicant that they were satisfied that the case officer had dealt with the complaint appropriately and in line with the IC’s case handling procedures. They also reiterated that there was no basis to find that Hedin had not complied with its obligations under data protection legislation. They advised that the IC did not intend to consider the complaint further and advised the Applicant of his right to take his own court action under data protection legislation against the data controller and/or complaint to the Parliamentary and Health Service Ombudsman (PHSO). The Application[5]The Applicant originally applied to the Tribunal by way of form GRC1 dated 17 June 2026 together with a 566 page supporting document. Registrar Bamawo directed on 24 June 2026 that the Applicant should identify the pages where the relevant decision appeared and review outcome appeared in this bundle by 8 July 2026. The Applicant submitted a revised form GRC1 on 25 June 2026. The Tribunal admitted the Application as an application under Section 166 DPA 2018 on 2 July 2026.[6]The reasons given for the Application in the amended form GRC1 were as follows:
“1. Manifest Error of Fact and Factual Incompetence The Lead Case Officer [name] officially recorded on the Case Review Referral Form that this dispute involved the "unsatisfactory purchase of a BMW". As the vehicle in question is a Mercedes-Benz GLA, this provides binary proof of a superficial and negligent review that failed to establish basic factual competence. This error was subsequently rubber-stamped by senior management. 2. Admitted Destruction of Material Evidence Internal logs dated 8 April 2026 capture a written confession from [case officer] : "Yesterday I caused many duplicates not containing material to be deleted and at the time of writing there are now just four". These were not duplicates but unique technical submissions. The regulator’s manual purging of a complainant’s file registry to reduce administrative workloads constitutes a severe breach of statutory duty. 3. Intentional Failure of Inquiry (Ground 2) ICO department issued a finding of "compliance" while material evidence remained unread in the queue. Internal memos from [IC case officer] on 17 April 2026 confirm that a "large volume of emails" submitted on 16 April would not be reviewed because the case was already in the "active review stream". ICO system mainframes flagged these data packages as "attached but un-indexed," proving the investigation was closed without auditing the provided technical data. 4. Conscious Blindness to Corporate Fraud The ICO chose to endorse a regulated firm’s written falsehoods without verification. You blindly accepted Hedin Automotive’s assertion that a diagnostic report from 27 August 2024 "did not exist," despite the complainant providing the machine-stamped XENTRY Diagnostic Data Packet retrieved directly from the manufacturer’s central server. By failing to issue a statutory Information Notice under Section 142, the ICO effectively facilitated the concealment of data.”
[7]The outcomes sought by the form GRC 1 were as follows:
“The Appellant requests a binding statutory order compelling the Respondent to re-open case IC-498589-K0K2, strip Lead Case Officer [name] of his authority regarding this matter, and assign an un-conflicted enforcement team to fully index the provided forensic evidence. This team must be directed to issue a statutory Information Notice to compel Hedin Automotive to disclose the unsegmented 31-minute 48-second master audio recording from 9 March 2026 and the original 27 August 2024 diagnostic data.”
[8]The Applicant subsequently submitted a form GRC3 on 3 August 2026 in response to the strike-out application. The outcome sought was as follows:
“an order under section 166(2) compelling the Information Commissioner to re-open complaint reference IC-498589-K0K2, take appropriate administrative steps to reconstruct the purged 548-page technical file registry and issue a procedurally compliant progress update or closing notice within a binding timeline of 28 days.”
[9]In his grounds for the GRC3, the Applicant stated: “The Respondent has failed to take appropriate steps to investigate and respond to my complaint under section 166(1)(a) of the Data Protection Act 2018. Internal regulatory logs reveal severe structural breakdowns that invalidated the integrity of the inquiry before its closure: Evidence spoliation: On 8 April 2026, the Lead Case Officer recorded that he manually deleted my incoming technical files and forensic data streams to manage administrative workloads. A regulator cannot execute “appropriate steps” on an evidence file it has actively purged. Factual Incompetence: The Official Case Review Referral Form incorrectly logs the subject matter as a “BMW” when the asset under investigation is a Mercedes-Benz GLA. The case handler did not understand the identity of the data fields under review. Pre-determination: Internal notes show the officer dismissed my active High Court proceedings as having “no element of truth” before checking the court mainframe, and issued biased operational directives to other staff members. The application is made strictly to compel the Commissioner to reconstruct the deleted file registry and properly review the evidence.[10]I note that the Applicant’s rebuttal document dated 3 August 2026, which was filed alongside his form GRC3 on that date, states at paragraph 1.2 that the Applicant has “proactively exercised his right under Rule 7(2)(c) of the Tribunal Rules to remedy this administrative defect, fully neutralising the Respondent’s preliminary objection.”[11]Rule 7(2)(c) in fact provides the Tribunal with the power to strike out proceedings where a party has failed to comply with the Tribunal Rules. It makes no reference to amendment of statement of case, nor does it provide any right to the Appellant to automatically amend their case without consulting the Tribunal and seeking a direction. The Tribunal has the power to permit a party to amend a document under Rule 5(3), but no application has been made to submit the form GRC3 out of time on form GRC5 or at all. Mindful of the overriding objective and, in particular, the need for flexibility and the avoidance of unnecessary formality, I have treated the form GRC1 (as amended) as the primary Application for the purposes of considering the strike-out application and the matters raised in the form GRC3 as part of the submissions as to why the Application should not be struck out.

The strike-out application

[12]The strike-out application The IC applied by way of form GRC5 dated 2 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”).[13]The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 32 to 36. In summary, these were as follows:a. The remedies sought by the Applicant are not outcomes that the Tribunal can grant in a section 166 of the DPA18 application against the IC. 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. It is also clear from the relief sought by the Applicant that he seeks to challenge the substance of the outcome under the guise of a procedural challenge, with a view to seeking a different outcome. However, if the Applicant wishes to challenge the substance of the outcome, or the exercise of the IC’s discretion, those matters should be pursued by an application for judicial review in the Administrative Court (see Killock & Veale & Another v Information Commissioner [2021] UKUT 299 (AAC) at [87] and Smith v Information Commissioner [2025] UKUT 74 (AAC) at [136]). Nor can the Tribunal direct how the IC manages his resources concerning the investigation of complaints submitted to him and again refer to Killock &Veale at [85], which recognised that the IC has institutional competence as to how he conducts investigations into complaints and the Tribunal cannot direct the IC, in respect of an application made under section 166 of the DPA18 as to how to deploy his limited resources as the Applicant requests. If, as the Applicant asserts, there is possible bias on behalf of the named case officers (who act on behalf of the IC), this not made out, in that it cannot be shown, with regard to the relevant test, that a “fair minded and informed observer, having considered the facts, wouldconclude that there is a real possibility that the decision maker was biased” (see Porter vMagill [2001] UKHL 67).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) DPA18c. 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).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[14]The Applicant provided a detailed rebuttal document on 3 August 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. The Applicant states that this is an application under section 166 “targeting severe, documented, and systemic procedural failures in the Commissioner’s handling of the complaint file prior to its premature closure”.b. A regulatory body cannot be deemed to have executed "appropriate steps" under Section 166(1)(a) of the DPA 2018 if its officers “physically purge primary, live evidentiary material during an active case stream”.c. The deleted digital elements were not duplicate files. They comprised the Applicant's unique technical data packets, machine-stamped XENTRY diagnostic telemetry streams, and telephonic timeline data packages. He states “The manual purging of a citizen's core technical record to manage internal administrative workloads constitutes material evidence spoliation. A regulator cannot procedurally evaluate an evidence file that it has actively destroyed, rendering the subsequent "outcome" an administrative nullity.”d. An administrative or regulatory review cannot be considered legally or procedurally valid if the reviewer does not understand or accurately identify the core asset and data fields under review. The asset subject to the underlying Subject Access Request (SAR)—and the absolute centre of this dispute—is a Mercedes-Benz GLA. This error was rubber-stamped through senior management. He states “It serves as binary proof of a superficial review that lacked basic factual competence regarding the identity of the data controller and data fields under evaluation, proving that the procedural track was entirely broken”.e. The IC’s internal correspondence “documents an explicit, defensive posture of institutional bias and pre-determination. The regulator actively pre-judged the facts and dismissed the applicant's statutory credibility before checking the court mainframe or finishing the procedural investigation track”.f. The Applicant no longer wishes to pursue reassignment of the IC’s case officers, or criminal issues concerning destruction of information. Instead he states that the outcomes he now seeks are:• An order compelling the IC to reopen the complaint• An order directing the IC to take appropriate steps to reconstruct the technical file registry which was deleted• An order directing the IC to issue a clear procedural progress update or a fresh closing notice within a binding timeline of 28 days. 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 in accordance with the parties’ wishes as it appears to me appropriate and proportionate to do so. I note also that Rule 32(4) permits the Tribunal to strike out a case under Rule 8 without an oral hearing.[25]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 15 April 2026 and a further response following review on 21 May 2026. I consider that the response dated 15 April 2026 was in fact an outcome to the complaint, because 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 was in the context of determining whether or not Hedin had complied with the relevant data protection legislation.[26]Even if I am wrong on this, I am satisfied that when taken together with the review 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.[27]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.[28]The matters raised by the Applicant in relation to the competence and bias of the IC’s case officers and the way in which the IC approached its investigation and handling of evidence appear to me to be matters for judicial review before the High Court, not for this Tribunal under its forward-looking jurisdiction under section 166.[29]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.[30]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.[31]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.