Andrew Feldman v The Information Commissioner [2026] UKFTT 1199 (GRC)

[2026] UKFTT 01199 (GRC)Case Reference: FT/EA/2026/0217/GDPR
First-tier Tribunal
(General Regulatory Chamber)
Date 24 August 2026
Information Rights
Decided without a hearing
Before
JUDGE HARRIS
Between
Andrew feldmanApplicantTHE 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 AST Assistance Limited regarding the response to his Data Subject Access Request (“DSAR”). The complaint was submitted to the Information Commissioner (“IC”) on 18 June 2025 and was dealt with under reference IC-395643-Y3H4[2]On 8 January 2026, the IC responded to the Applicant’s complaint explaining that no further action would be taken in respect of the Applicant’s complaint and that he would keep a copy of the complaint on file. The Applicant requested a review of this decision.[3]On 24 June 2026, the complaint was referred to a manager for review, following which a further response was issued to the Applicant setting out the reasons for the IC’s decision. The reviewing officer confirmed that the decision remained unchanged. While acknowledging the Applicant’s concerns, the reviewing officer clarified that the right of access is not absolute and that organisations may refuse requests where justified. The reviewing officer concluded that further regulatory action was not necessary or proportionate, noting the matter formed part of a broader dispute, and advised the Applicant he could seek independent legal advice or pursue the issue through the courts. The Application[4]The Applicant applied to the Tribunal by way of form GRC3 dated 9 June 2026. He stated that the outcome he was seeking was as follows:
“I ask the Tribunal to determine that the Information Commissioner failed to investigate my complaint to the extent required by section 166 of the Data Protection Act 2018 and that the decision communicated to me on 8 January 2026 was inadequate. I further ask the Tribunal to direct the Information Commissioner to reconsider my complaint concerning AST Assistance Ltd in accordance with the requirements of the Data Protection Act 2018, taking proper account of the issues raised in my complaint, including whether AST Assistance Ltd was entitled to refuse my Subject Access Request and whether it complied with its obligations under Articles 12 and 15 UK GDPR. I seek such further or alternative relief as the Tribunal considers just.”
I seek such further or alternative relief as the Tribunal considers just.”[5]In his grounds for the Application, the Applicant stated:
“I am applying to the Tribunal because I am dissatisfied with the Information Commissioner's handling of my complaint concerning AST Assistance Ltd and believe that the Commissioner failed to properly investigate the matters raised before deciding to take no further action. My complaint concerned a Subject Access Request submitted to AST Assistance Ltd on 22 June 2025. The request sought specific categories of personal data concerning me, including police communications, investigation records, witness material, litigation records, internal correspondence, disclosure records and audit logs. Proof of identity was provided. AST Assistance Ltd did not disclose any personal data in response. Instead, it stated that the request was "vexatious" and threatened to refer further correspondence to the police. It did not explain why the request was considered vexatious, did not state that it was manifestly unfounded or manifestly excessive within the meaning of Article 12(5) UK GDPR, and did not provide any evidence of the assessment undertaken before refusing the request. In my complaint to the Information Commissioner, I asked the ICO to consider whether AST Assistance Ltd had complied with its obligations under Articles 12 and 15 UK GDPR and whether it was entitled to refuse the request. However, the ICO's response dated 8 January 2026 did not address those issues. The response contains no analysis of whether AST Assistance Ltd lawfully refused the request, whether Article 12(5) UK GDPR was correctly applied, or whether AST Assistance Ltd complied with its obligations as a data controller. Instead, it largely consists of a generic explanation of the ICO's role and states that no further action will be taken. Following receipt of that decision, I submitted a further complaint to the ICO on 1 February 2026 concerning the handling of my case and the apparent failure to address the substance of the issues raised. To date, I have received no substantive response. I appreciate that the Commissioner has a discretion as to the extent of any investigation and is not required to take enforcement action in every case. However, I do not believe that my complaint was investigated to the extent required by section 166 of the Data Protection Act 2018. The decision letter contains no adequate reasoning and does not demonstrate that the issues raised in my complaint were properly considered. I therefore ask the Tribunal to determine that the Commissioner failed to appropriately investigate my complaint and to make such order as it considers just.”

The strike-out application

[6]The IC applied by way of form GRC5 dated 29 June 2026 to strike out the Application on the basis that there is no reasonable prospect of it succeeding under Rule 8(3)(c) (the “strike-out application”).[7]The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 21 to 24. In summary, these were as follows:a. The IC apologises for the delay in responding to the Applicant’s complaint and accepts that his initial response to the Applicant’s complaint did not explain the reasons why the IC was taking no further action. However, the IC has since provided the Applicant with reasons for his decision in correspondence dated 24 June 2026.b. Further, the IC has investigated the complaint to the extent appropriate given the IC’s broad discretion as to how he investigates the complaint, which can include either a desktop investigation or a more broader investigation, encompassing engagement with both the data controller or the data subject (see Smith v Information Commissioner[2025] UKUT 74 (AAC) at [60], R (Delo) v Information Commissioner[2023] EWCA Civ 1141 at [80], and Evans v Information Commissioner [2025] UKFTT 1057 (GRC) at [39])c. Accordingly, it is respectfully submitted that the IC has now taken steps to comply 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 of the 166(2) of the DPA18.[8]Judge Roper directed that the Applicant should provide representations in relation to the strike out application by 20 July 2026 under Rule 8(4). No response was received from the Applicant. I am, however, satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4). Legal framework[9]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.”
[10]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.[11]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.”
[12]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."[13]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...”.[14]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).[15]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).[16]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.”[17]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[18]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 Application to be dealt with at a hearing.[19]The reason why I have done so is that the issue I need to determine at this stage is a straightforward one, namely whether there is any reasonable prospect of the Application succeeding. 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 striking out in the context of this application. I note also that Rule 32(4) permits the Tribunal to strike out a case under Rule 8 without an oral hearing.[20]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 8 January 2026 with a further response following review on 24 June 2026.[21]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). The fact that the Applicant does not agree with the outcome does not render it wrong in law.[22]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.[23]The outcome sought by the Applicant is, 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 against the data controller need to be sought through civil action. Accordingly, I find that the Tribunal does not have the power to grant the outcomes sought.[24]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.[25]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.