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(As amended under Rule 42) Introduction
(As amended under Rule 42)
Introduction
This is an appeal in which the respondent Information Commissioner “wears two hats” as Judge Wikeley described it in Information Commissioner v Colenso-Dunne [2015] UKUT 471 (AAC), [2016] AACR 9. In this decision, I refer to the Information Commissioner as “the Commissioner” when he is acting in his regulatory capacity and as “the ICO” when he is acting in his capacity as a data controller under the Data Protection Act 2018 (DPA 2018) or as a public authority for the purposes of the Freedom of Information Act 2000 (FOIA).
The appellant appeals, with the permission of the First-tier Tribunal, against a decision of the First-tier Tribunal of 2 April 2024 refusing his application under section 166 of the DPA 2018 for an order that the Commissioner take further steps to respond to two complaints he made about the ICO.
The structure of this decision is:
The proceedings before the First-tier Tribunal 10
The First-tier Tribunal’s decision 10
Relevant legislative provisions in relation to section 166 of the DPA 2018 13
Case law in relation to section 166 of the DPA 2018 14
The Upper Tribunal’s jurisdiction on appeal 24
The grounds of appeal: discussion and conclusions 25
The parties’ submissions on Ground 2 25
Analysis and conclusions: (i) the apparent bias argument 27
(ii) My concerns about the Tribunal’s self-directions as to the law 29
(iv) The First-tier Tribunal’s decision in this case 32
Ground 3: The Tribunal erred by failing to uphold the duty of candour 33
The parties’ submissions on Ground 3 33
The parties’ submissions on Ground 4 35
Ground 5: The First-tier Tribunal failed to uphold the overriding objective 35
Ground 1: The First-tier Tribunal has provided inadequate reasons for its decision 37
- Heading
- (As amended under Rule 42) Introduction
- Background
- The proceedings before the First-tier Tribunal
- The First-tier Tribunal’s decision
- The law
- Case law in relation to section 166 of the DPA 2018
- The Upper Tribunal’s jurisdiction on appeal
- The parties’ submissions
- Ground 2: The Tribunal erred by ruling that the Commissioner was not biased and by reaching the wrong conclusions about the Commissioner’s motives, and their consequences
- Analysis and conclusions: (i) the apparent bias argument
- My concerns about the Tribunal’s self-directions as to the law
- The approach the First-tier Tribunal should take to section 166 applications where the Commissioner has been asked to investigate a complaint against the ICO
- The First-tier Tribunal’s decision in this case
- Ground 3 : The Tribunal erred by failing to uphold the duty of candour
- Analysis and conclusions
- Ground 4: The First-tier Tribunal erred in relation to what was the outcome of the appellant’s complaints
- Analysis and conclusion
- Ground 5: The First-tier Tribunal failed to uphold the overriding objective
- Ground 1: The First-tier Tribunal has provided inadequate reasons for its decision
- The shortcomings in the Commissioner’s handling of the complaints and why they do not mean this appeal succeeds
- Conclusions