Dr Michael Guy Smith v The Information Commissioner

8. Further to the above, and in the Tribunal’s view, the case turned principally on whether the narrow window of circumstance anticipated in Killock & Veale in which ‘ winding back the clock ’ was lawful, applied here. In the Tribunal’s view it did not.

9. First, the Tribunal relied upon the broad discretion given to the Commissioner to decide whether to investigate a complaint at all, and, if so, to what extent and that it is principally for the Commissioner to determine what is an “appropriate” response to a complaint. The Upper Tribunal in Killock & Veale recognised the Commissioner’s position as an “expert regulator” and stated at [76] that “[s]he is in the best position to consider the merits of a complaint and to reach a conclusion as to its outcome ”.

10. It asked itself whether there was a good reason to interfere with the Commissioner’s regulatory judgement. It noted that the Tribunal was to respect the special position of the Commissioner in this regard. The Applicant urged the Tribunal not to tamely accept this on the basis that the Commissioner is “plainly a biased regulator”: the Commissioner has a motive in effect not to follow a procedurally proper investigation on account of the prior dealings with the Applicant and the various strands of litigation being pursued by the Applicant against the Commissioner and that it had pre-determined the outcome of the investigation undertaken. The Tribunal concluded that the assertions above were, on the basis of the evidence before the Tribunal, speculative and unproven.

11. On this basis, and paying appropriate respect to the Commissioner as the expert regulator, the Tribunal did not consider that it had a good reason to interfere with the Commissioner’s regulatory judgement.

12. In this regard, the Tribunal took into account the email adduced in evidence by the Applicant between two Commissioner employees with regard to the outcome of the investigation. The Tribunal took the view however this did no more than indicate that a lessons learned process should follow the outcome. It did not lead to a conclusion of fact (on the basis of being more likely than not) that there was a view internally that there had been a breach of data protection obligations on the part of the Commissioner. Nor did it lead to a conclusion that the outcome communicated to the Applicant on 17 February 2022 was only “an” outcome and not “the” outcome (which the Applicant sought to argue from this email was that there had been a breach of data protection obligations). This finding disposed of the Applicant’s third ground of appeal, that the outcome which the Commissioner sent him in response to his complaints is incompatible with the outcome of the Commissioner’s investigation in the subject matter of his complaints. The Tribunal dismissed this ground of appeal on the basis that he had received communication of “the” outcome of his complaints on the 17 February 2022 and this was not incompatible with what the Applicant alleged was indicated in the email cited above. In light of the Tribunal’s interpretation of this email, it did not consider this showed any failure of disclosure on the part of the Commissioner.

13. In any event, the Tribunal took the view that on the basis of the investigative steps said by the Commissioner to have been taken, there was nothing before it that gave rise to any indication that the Commissioner had not carried out an adequate investigation. There was no reason, in the Tribunal’s view, not to accept the Commissioner’s word in relation to the steps actually taken. Thus the Commissioner, in the Tribunal’s view, had considered the Applicant’s complaint, reviewed the correspondence stored on the Commissioner’s case management system, engaged with the IA team and inquired about the handling of the Applicant’s requests. By providing the Applicant with an outcome on 17 February 2023, further clarification on 27 February 2023 and a case review of that outcome on 25 July 2023, the Commissioner had taken, what the Tribunal concluded, were appropriate steps to investigate and respond to the Applicant’s complaint within the requirements of the legislation.

14. The Applicant argued that the Commissioner was subject to a ‘duty of candour’ and referred the Tribunal to the statement to this effect in the case management decision of Judge Neville on 16 February 2024. He argued that this required disclosure of the evidence underpinning the steps in the investigation said to be taken. The Tribunal noted that Judge Neville had already refused an application for specific disclosure to this effect.

15. The Tribunal did not consider it was bound to make any findings upon whether or not the Commissioner was subject to a ‘duty of candour’ as such, as in any event, the evidence and arguments before it did not substantiate any failure of disclosure. The Tribunal took the view that, whilst it had decided, in the alternative and to assist with finality on this matter, to form a view on the adequacy of the investigation followed, this in and of itself did not require the Commissioner to provide witness statements or make disclosure of all of the underlying evidence.

16. With regard to the second caveat in Killock & Veale, the Tribunal did not accept the Commissioner’s argument that the Applicant was plainly using the section 166 process to achieve a different complaint outcome to his complaints. It accepted that whilst he admitted he did wish for a different outcome, this was not conclusive of the issue. His motivation for making the application was, in part, to shed light on what he believed to be procedural irregularity and involved arguments (for instance, with regard to the duty of candour and the circumstances in which the Tribunal could legitimately ‘wind back the clock’) which, if accepted, would have a wider impact on the operation of the legislative process and the duties of the Commissioner in responding to such section 166 applications.

17. Whilst acknowledging this wider purpose, for the reasons set out above, the Tribunal dismisses this application and does not require the Commissioner to take any further steps.

18. Finally, the Applicant invited the Tribunal to find that there had been a breach of the overriding objective further to the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended). The Tribunal noted that Mr Justice Neville had been invited so to find in a case management hearing and had declined to do so. Nothing that the Applicant had put before the Tribunal on this occasion led to a different view. Judge Carter Judge of the First-tier Tribunal Date: 1 April 2024