Gohar Naz v The Information Commissioner

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 Circle Health Group-Beardwood Hospital (“Circle”) regarding her data subject access request (“DSAR”) dated 5 August 2025. The complaint was submitted to the Information Commissioner (“IC”) on 5 September 2025 and was dealt with under reference IC-423476-S0V8.

2. On 5 September 2025, the Applicant submitted her complaint to the Commissioner regarding Circle and their response to her DSAR. On the same day, the Applicant emailed the IC’s Public Advice and Data Protection Complaint Service (PADPCS) and requested her complaint to be expedited.

3. On 10 September 2025, the Applicant called the IC’s helpline and further requested her complaint to be escalated.

4. On 12 September 2025, after reviewing the information provided, the IC’s case officer wrote to the Applicant. The case officer advised that Circle needed to take further action in relation to their response to the DSAR and requested the organisation to contact the Applicant within 28 days. In line with the Applicant’s request, the supporting documents attached to the complaint were not shared with Circle Health Group. Additional information was provided regarding enforcement action taken by the IC and the Applicant’s right to escalate her complaint further.

5. On 14 September 2025, the Applicant responded requesting an internal review because it appeared to her that the decision had been taken without review of the evidence of omissions from the DSAR which she had provided. The request was acknowledged on 15 September 2025. The Applicant requested the case review to be expedited on 16 September 2025.

6. On 17 September 2025, the reviewing officer issued a review outcome to the Applicant. While acknowledging the case officer’s reasoning in the letter dated 12 September 2025, they noted missed opportunities to provide clarity to the Applicant. They confirmed that the Applicant had requested a call before sharing information with Circle and apologised that this did not happen. The reviewing officer stated that they had given feedback to the case officer, asking them to write again to provide further detail. They explained the IC’s role under Section 165 of the DPA 2018, including investigating complaints and considering enforcement action where appropriate. The Applicant was reminded that if dissatisfied, she can pursue their own legal action under data protection law or escalate the complaint to the Parliamentary and Health Service Ombudsman (PHSO)

7. The Applicant on 17 September 2025 invited the IC to reconsider whether its reliance on the assurances from Circle remained appropriate in light of the list of omissions provided.

8. On 22 September 2025, the IC’s case officer acknowledged the Applicant’s concerns regarding missing information and advised contacting Circle directly with a list and evidence of omissions. They confirmed that where an organisation asserts it has provided all personal data or does not hold the requested information, the IC must accept these assurances in good faith. The IC does not cross-reference documents and generally only considers enforcement where systemic non-compliance is evidenced. If the Applicant believes data has been withheld, they retain the right to seek a judicial remedy or compensation through the courts, but the IC cannot assist with individual legal proceedings.

9. On 23 September 2025, the Applicant reiterated concerns regarding withheld information and requested that the case officer engage with Circle to obtain any data not provided in the DSAR response, along with confirmation of Circle’s and the IC’s compliance with the UK GDPR and internal policies. The Applicant states that at this point she formally requested Regulatory Action Policy (RAP) consideration and a further internal review concerning whether RAP had been applied.

10. Following a telephone call made by the Applicant to the IC’s Helpline, a PADPCS manager emailed the Applicant and confirmed that the Applicant’s case has been reviewed, and the complaint process is now exhausted. The PADPCS manager explained that the IC would not reconsider the issues raised and did not intend to enter into further correspondence. The Applicant was informed that she may complain about the service to the PHSO via her MP and retains the right to pursue data protection concerns through the courts, for which independent legal advice is recommended. The case remained closed. The Application

11. The Applicant applied to the Tribunal by way of form GRC3 dated 18 October 2025. She stated that the outcome she was seeking was as follows: “I respectfully request that the Tribunal direct the ICO to take the following procedural steps: • Engage directly with the provider to obtain documentary evidence of their DSAR search methodology and audit logs • Confirm whether the provider has complied with Article 15 UK GDPR in full • Clarify how Regulatory Action Policy (RAP) criteria have been applied, particularly in light of the provider’s blanket assertion of full disclosure. I am not requesting regulatory enforcement at this stage. I am simply asking that the ICO take basic procedural steps. I believe that closure without further scrutiny is inconsistent with the ICO’s obligations under section 166 and contrary to the RAP’s commitment to act where risks and harms to individuals are greatest.”

12. In her grounds for the Application, the Applicant, in summary, made the following points: a. The IC had failed to engage with the evidence she had provided that key records referenced by Circle were not disclosed in the DSAR response, contrary to Circle’s position that all data had been disclosed. b. The IC accepted Circle’s assurances in good faith, but this ignores the fact that written evidence demonstrates discrepancies. c. The Applicant’s complaint was framed explicitly under the RAP and the IC did not address the points she made substantively. d. The omission of certain information from the DSAR response obstruct the Applicant’s ability to escalate governance failings to external regulators such as the CQC and GMC. The IC’s decision therefore risks enabling wider regulatory breaches beyond data protection. e. The Applicant believed that closure without further scrutiny was inconsistent with the IC’s obligations under section 166 and contrary to the RAP’s commitment to act where risks and harms to individuals are greatest. The strike-out application

13. The IC applied by way of form GRC5 dated 15 December 2025 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”).

14. The reasons which the IC gave for striking out the application were set out in its Response. 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 DPA18 permits a Tribunal to make an order against the IC only if he has failed in some procedural respect. b. The IC has taken appropriate steps to investigate and respond to the Applicant’s complaint, providing them with an outcome on 12 September 2025 and review outcome on 17 September 2025. Accordingly, it is respectfully submitted that the IC has 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 166(2) DPA18. c. It is clear that the Applicant disagrees with the outcome reached by the IC on their complaint. However, as set out above, section 166 of the DPA18 does not provide a mechanism by which Applicants can challenge the substantive outcome of a complaint. d. The relief available from the Tribunal on an application under section 166 of 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) of the DPA18, limited solely to those orders that are set out in section 166(2) . e. If the Applicant wishes to seek an order of compliance against the controller for breach of her data rights, the correct route for her to do so is by way of separate civil proceedings in the County Court or High Court under section 167 of the DPA18.

15. The Applicant provided a Reply to the Response dated 24 December 2025, 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 Application is concerned with a single issue, which is whether the IC took any further responsive procedural step of his own after the complaint was clarified by the Applicant filing a list of omissions from the DSAR. The IC ought to have taken an evaluative step to consider whether Circle’s assurances should be tested or verified rather than simply accepting them against the background of the list of omissions. b. The Applicant does not dispute that there was an outcome, but argues that the IC did not take appropriate steps to reach that outcome and the complaint was closed without addressing whether reliance on assurances remained appropriate once contradictory evidence was provided. c. The Applicant stated that the authorities do not establish that an application must be struck out whenever an outcome has been issued or an allegation that no appropriate evaluative step was taken is excluded from the ambit of section 166 . She described her case as “ a challenge to process adequacy and inaction, not outcome correctness.” Legal framework

16. 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 - 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. (2) The Tribunal may, on an application by the data subject, make an order requiring the Commissioner - 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.”

17. 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.

18. 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.”

19. 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."

20. 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... ”.

21. 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).

22. 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 (paragraph 33). 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.”

23. 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.”

24. 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

25. The first question is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response to her complaint on 12 September 2025 with a further response on 17 September 2025 following a review. I consider that the response dated 12 September 2025 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.

26. Even if I am wrong on this, I am satisfied that when taken together with the response dated 17 September 2025, 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 Applicant does not dispute that an outcome was provided. 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 Applicant argues that the IC ought to have carried out evaluative steps when it received the list of omissions from the DSAR from her, and checked or verified the response to the complaint from Circle. In practice, the effect of the list of omissions was to challenge the completeness of the DSAR response. As the IC set out in its letter dated 22 September 2025, if the Applicant believes data has been withheld, she retains the right to seek a judicial remedy or compensation through the courts. In my view, it would not be an appropriate step for the IC to verify or cross-reference documents in these circumstances.

29. The Tribunal has no power under section 166 to direct Circle to make disclosure to the Applicant. Its powers are limited to ordering the IC to progress its handling of the Applicant’s complaint.

30. 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.

31. 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.

32. This Tribunal does not have jurisdiction to hear appeals under the Regulatory Action Policy; if the Applicant wishes to challenge compliance with this by the IC, it is open to her to seek judicial review in the Administrative Court.

33. 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)(a) because there is no reasonable prospect of them succeeding.