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S165 Data Protection Act 2018 empowers a data subject to complain to the Information Commissioner in connection with an infringement of the UK GDPR or Parts 3 and 4 of the 2018 Act. S166 empowers the Tribunal to hear appeals arising from these complaints, for “orders to progress complaints”.
In the last month the FTT has given two reported judgments in which it has struck out appeals under s166 Data Protection Act 2018 on technical grounds. They serve as a reminder of the jurisdiction of the FTT in these cases: the remedy is procedural and cannot be used to change the substantive outcome of a complaint.
S166 provides that the FTT’s jurisdiction to make an order where an application is made to it by the data subject. Such an application may be made after a data subject has made a complaint to the Information Commissioner and the Commissioner (a) fails to take appropriate steps to respond to the complaint; (b) fails to respond to the complaint with information about its progress or the outcome before three months have passed; or (c) if the complaint is on-going at three months, fails to provide that information within a second three month period.
Rule 8 of the GRC Rules is mandatory power for the FTT to strike out the whole or part of the proceedings if the Tribunal does not have jurisdiction.
In Navartne v Information Commissioner [2023] UKFTT 00263 (GRC), the Appellant lodged the appeal with the FTT at the end of October. He had complained to the Commissioner on 24 September and the Commissioner had responded initially on 30 September. The Appeal was struck out.
In Arnauth v Information Commissioner [2023] UKFTT 00217 (GRC) the FTT noted that the powers of the Tribunal are limited to those set out in s166(2): in order to exercise them, the Tribunal must be satisfied the Commissioner has failed to progress a complaint under s165. The jurisdiction of the Tribunal is limited to circumstances in which there has been a failure of the type set out in s166(1). The Tribunal has no supervisory jurisdiction in relation to the handling of a complaint to the Information Commissioner’s Office and the Tribunal may not review the Information Commissioner’s decision to take no further action in relation to a complaint.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
