Sebastian Krol v The Information Commissioner

Introduction

1. The Applicant seeks an order under section 166(2) of the Data Protection Act 2018 (DPA 2018) requiring the Information Commissioner (the Commissioner) to undertake a substantive investigation and overturn its decision in relation to the Appellant’s complaint regarding the handling of his data by Currys.

2. In his response to the application, the Commissioner invites the Tribunal to strike out the applicant’s appeal on the basis that the Tribunal does not have jurisdiction to consider the appeal and/or that the appeal has no reasonable prospects of succeeding and accordingly, should be struck out.

3. On 10 November 2025, the Applicant was directed by the Tribunal to provide any representations he wishes to make in response to the Commissioner’s application to strike out the Applicant’s application by 2 December 2025. The Applicant was warned that failure to respond could lead to the application being struck out. The Applicant has not responded nor made any representations in this regard. Legal Framework

1. Under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, the Tribunal may strike out the whole or part of the proceedings if the Tribunal considers it does not have jurisdiction in relation to the proceedings or that part of them; and does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

2. Under Rule 8(3)(c) of the Rules, the Tribunal may strike out the whole or part of the proceedings if the Tribunal considers there is no reasonable prospect of the applicant’s case, or part of it, succeeding.

3. Section 165 DPA sets out the right of data subjects to complain to the Commissioner about infringement of their rights under the data protection legislation. Under section 166 DPA a data subject can make an application to this Tribunal for an order as follows: 166 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 - (a) to take appropriate steps to respond to the complaint, or (b) to inform the complainant of progress on the complaint, or of the outcome of the complaint, within a period specified in the order.

4. 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. Some key decisions are: a. Scranage v Information Commissioner [2020] UKUT 196 (AAC) , paragraph 6 - "In my experience – both in the present appeal and in many other cases – there is a widespread misunderstanding about the reach of section 166 . Contrary to many data subjects’ expectations, it does not provide a right of appeal against the substantive outcome of the Information Commissioner’s investigation on its merits. Thus, section 166(1) , which sets out the circumstances in which an application can be made to the Tribunal is procedural rather than substantive in its focus." (emphasis in original). b. Killock v Information Commissioner [2022] 1 WLR 2241 , Upper Tribunal at paragraph 74 - "… 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 ." Background

5. The factual background to this case is succinctly set out at [27] to [29] of the Commissioner’s response dated 7 October 2025:

27. The Applicant made a complaint to the Commissioner on 19 April 2025. The complaint was in relation to the retailer, Currys. The complaint outlined that following a request for erasure, Currys refused without, in the Applicant’s view, a reasonable reason and he believed that this was an infringement of his data protection rights. Attached was the email chain with Currys including their refusal and reasoning.

28. On 2 August 2025, the case officer wrote to the Applicant with an outcome and provided the reference number IC-379606-N9H9. Specifically, they detailed that upon reviewing the material provided they were content with the explanation given by Currys and that it was likely they had complied with their legal obligations. [Annex 1]

29. The Applicant responded outlining his view that Currys’ justification lacked merit under the GDPR (presumably UK GDPR). On 13 August 2025, the case officer responded maintaining their position. Subsequently a GRC1 and a GRC3 form were submitted [to the Tribunal]. Conclusions

4. I find that the Commissioner has provided an outcome to the complaint on 2 August 2025.

5. Contrary to the expectations of many Appellants, section 166 does not provide a right of appeal against the substantive outcome of the Commissioner’s investigation on its merits. The Tribunal is bound to take into consideration and give weight to the views of the Commissioner, as described by the Chamber President in Barbara Rogers v ICO EA/2021/0348: ’14…In the sphere of complaints, the Commissioner has the institutional competence and is in the best position to decide what investigations he should undertake into any particular issue, and how he should conduct those investigations. This will be informed not only by the nature of the complaint itself but also by a range of other factors such as his own registry priorities, other investigations in the same subject area and his judgement on how to deploy his limited resources most effectively: Killock & Ors v Information Commissioner [2021] UKUT 299 . The obligation of the Commissioner is to take appropriate steps to respond to the complaint’.

6. The Appellant’s application requests that the Tribunal order the Commissioner to overturn its decision. The Appellant clearly accepts that an outcome has been provided by the Commissioner, however, he is not satisfied with that outcome. It is therefore the case that the Applicant is challenging the substantive outcome of the complaint to the Commissioner. The Tribunal does not have the power under section 166 to consider the merits or substantive outcome of a complaint.

7. Section 166 is limited to procedural issues . The Commissioner took steps to investigate and respond to the complaint. It provided an outcome to the complaint. For these reasons, I find that the Commissioner has not failed to comply with the procedural requirements set out in section 166(1) of the DPA. I therefore find that there is no reasonable prospect of the appeal or any part of it, succeeding. The proceedings are therefore struck out. Signed: Judge Peri Mornington Date: 23 December 2025