The Upper Tribunal has clarified the scope of the Tribunal’s power to make orders against the Information Commissioner to take appropriate steps to progress complaints by data subjects under sections 165 and 166 of the Data Protection Act 2018. The Tribunal interpreted the provisions as follows:
On the facts of the three appeals (heard together), the Tribunal held that the Commissioner had taken appropriate steps to respond to the complaints in Killock & Veale and C, but not in EW.
In Killock & Veale, the complaint concerned the use of personal data in the behavioural advertising industry. After a period of investigation, the Commissioner decided to “cease handling” the complaint, but to continue with a wider investigation into the industry. The applicants said ceasing to handle a complaint was not reaching an outcome on the complaint. The Tribunal held that the decision to cease handling the complaint itself amounted to an outcome in this context.
In C, the complaint concerned the sending by a local authority of an unencrypted and un-anonymised email relating to a vulnerable young adult. The Tribunal upheld the decision at first instance that the proceedings had been brought out of time, and held that in any event the Commissioner had taken appropriate steps to investigate and respond to the complaint.
In EW, the complaint concerned the refusal by a local authority of requests by the applicant for disclosure of data relating to himself. The Commissioner declined to investigate the complaint on the basis that it had been made more than three months after receipt of the local authority’s decision. The applicant alleged that the Commissioner had failed to conduct an appropriate investigation. The Tribunal agreed: the Commissioner had mis-applied its Service Standards by applying an inflexible bright-line time limit on complaints. The Tribunal proposed to order that, within two months, the Commissioner ascertain the basis on which the local authority had refused the applicant’s requests, and assess whether those refusals were lawful.
The judgment is here.
Maya Lester QC acted for the applicants in Killock & Veale instructed by AWO, and Jacob Rabinowitz acted for the applicant in EW instructed pro bono through Advocate.