[2025] UKUT 74 (AAC)

For the reasons set out above, I have dismissed each of the appellant’s grounds of appeal in this case and it is therefore unnecessary for me to deal with the Commissioner’s submissions as to the additional reasons why the First-tier Tribunal’s decision should be upheld. However, I now need to address the shortcomings in the Commissioner’s handling of the appellant’s complaint that have become apparent in the course of this appeal.

As set out in the Background section (above), there was an oversight in the ICO’s response to the appellant’s Article 18 requests and a consequent omission in the Commissioner’s investigation of the appellant’s complaints in that the appellant’s email of 14 December 2022 was overlooked. As a result, the Commissioner has never provided the appellant with the reasons as to why he concluded that the ICO had complied with the UK GDPR in relation to his Article 18 requests despite the points that the appellant made in that email about (in particular): (i) the ICO’s mistake in thinking that appeal number EA/2022/0095 had concluded when that was not the case; and (ii) the ICO’s decision to delete a file relating to a FOIA request even though the appellant’s appeal against the Decision Notice issued by the Commissioner in respect of the ICO’s handling of that FOIA request was still ongoing.

As a result of questions that I asked at the hearing of this appeal (in a quest to understand the background to the appeal as it had not become clear to me from the documents or the parties’ submissions), it is now accepted by the Commissioner that the ICO made a mistake about appeal number EA/2022/0095. It follows that at least IC-768610-G6C6 should have been retained in response to the appellant’s request in order to comply with Article 18(1)(c). The explanation for this mistake that the Commissioner has given is that the officer who drafted the 13 December 2022 email was told by “FOI complaints” that no appeal was pending in appeal number EA/2022/0095.

There is no reason to disbelieve the Commissioner’s account in this respect as the content of the 13 December 2022 email reflects it and there is nothing to suggest that anyone at any point prior to me asking the question at this hearing realised that the appellant’s 14 December 2022 email had been overlooked. This is understandable because the appellant has never articulated his complaint about the actions of the ICO/Commissioner in that way, but has focused on other issues and taken what can fairly be described as a myriad of quite technical points. It has taken me a great deal more work on the documents than ought to have been necessary at this appeal stage for it to become apparent that there was in fact an error by the ICO/Commissioner in this case.

The question is now: what, if any, significance does this admitted error have for the appellant’s appeal? In Mr Metcalfe’s written submissions following the hearing, the Commissioner submits: “this error was not material because, unbeknownst to the case officer, the case had already been marked for preservation by a different team”. I share the appellant’s surprise at that assertion because there has been no mention previously of IC-76861-G6C6 having been preserved. (The case references that were known at the time to have been preserved by a different team were RFA0804334 and RCC0854800.) However, that does not mean that the Commissioner is not correct now in stating that IC-76861-G6C6 was preserved by a different team; maybe it was, maybe it was not. Without reverting to the parties for further submissions/evidence, I will not know.

There is also the question of the second issue about which I asked the Commissioner at the hearing, which was whether the Commissioner could identify where the Commissioner had set out his reasons for concluding that the ICO had complied with Article 18 when he decided to delete the file in relation to his handling of a FOIA request notwithstanding that the appellant’s appeal against the Commissioner’s Decision Notice in respect of that FOIA request was still ongoing. The Commissioner has not responded to that point, so I do not know whether what happened in this case with IC-65359-C1C7 reflects the ICO’s/Commissioner’s policy generally or not. On the face of it, it would be surprising and concerning if the ICO did normally delete files relating to FOIA requests before any appeal against any decision notice issued by the Commissioner in relation to that FOIA request had been concluded. While in practice the ICO may in fact pass the whole of such a file onto the Commissioner so that all relevant material truly is on the file relating to the Decision Notice, it seems to me to be important as a matter of principle that the ICO, like any third party public authority, should retain the original FOIA request file even where the Commissioner has issued a Decision Notice in that case and there is an appeal to the First-tier Tribunal. In many cases, it would be the third party public authority who would be defending that Decision Notice before the First-tier Tribunal and so would need to retain its files for that purpose. The ICO’s position should in principle be no different.

These shortcomings in the Commissioner’s handling of the appellant’s case are matters of concern in general terms, and I have directed that a copy of this decision be placed before the Commissioner personally so that he may consider if there are any matters arising from my observations in this case that need to be addressed. However, the question for me on this appeal is whether the First-tier Tribunal materially erred in law in dealing with the appellant’s section 166 application.

I do not consider that it did. This is a case where, if the appellant had advanced his case to the First-tier Tribunal on the straightforward basis that he had never received a response to his 14 December 2022 email, it would in principle have been open to the Tribunal to have ordered the Commissioner to take the appropriate step of responding to that email. If the appellant’s section 166 application had been put on that basis, the Tribunal could legitimately have viewed this as a case akin to EW v IC where a complaint (or part of one) had not been dealt with as a result of oversight or mistake by the Commissioner.

However, the appellant did not advance his case to the Tribunal on that basis, and nor has he advanced his appeal on the basis that the Tribunal failed to recognise that that was his case. The appellant is acting in person. I bear in mind the inquisitorial nature of the Upper Tribunal’s jurisdiction and the overriding objective which requires me to avoid unnecessary formality and seek flexibility in the proceedings and to ensure, so far as practicable, that the parties are able to participate fully in the proceedings, which includes ‘levelling the playing field’ for litigants in person. However, it does not follow that it is appropriate for the Upper Tribunal to rewrite a party’s case in the way that would be necessary to fashion the shortcomings now discovered in the Commissioner’s investigation into successful grounds of appeal for the appellant.

The overriding objective also requires that a case is dealt with in a way that is fair and just to both parties, proportionate to the importance of the case and avoids delay, so far as compatible with the proper consideration of the issues. Rewriting the appellant’s appeal at this stage would not be fair or just because the Commissioner and the First-tier Tribunal properly (respectively) responded to and dealt with the appeal that the appellant brought. Rewriting that now would give him a ‘second bite of the cherry’. Justice does not require that in this case, given that the appellant is a competent and experienced litigant and the case itself is concerned with a request for the retention of the sort of data that would in the context of an ordinary disclosure application be labelled as a “fishing expedition”, i.e. material that a party to legal proceedings has judged irrelevant or unnecessary to those proceedings, but which the other party wishes to obtain in the speculative hope that it might turn up something of use. The legal proceedings to which the retention requests relate are also now historic.

Dealing with the shortcomings in the Commissioner’s investigation at this stage would also involve (further) delay as I am not in a position even now to make any final determination about what has happened with files IC-768610-G6C6 and IC-65359-C1C7. There are still matters that are not clear and on which further submissions would be required if I was to try to get to the bottom of what has happened in this case. It would not be in accordance with the overriding objective of dealing with cases in ways that are proportionate to the issues to go down that route in the present appeal.

Yet further, the reality is that the heart of the appellant’s section 166 application, as he advanced it, was that he considered the outcome of his complaint was wrong/perverse as a result of the mistakes that he considered the Commissioner made and/or that the Commissioner had failed to give adequate reasons for the outcome. Those are all public law errors that could form the basis of a claim for judicial review of the Commissioner’s decision: see R (Iran) v SSHD [2005] EWCA Civ 982 at [9]-[13]. It is clear from Killock and Veale and Delo that challenges to the legal merits of the outcome of a complaint (and challenges to the adequacy of the Commissioner’s reasons for his decision are also challenges to the legal merits) should be taken to the High Court on judicial review. They should not be ‘dressed up’ as procedural errors and brought as section 166 applications to the First-tier Tribunal. The shortcomings in the Commissioner’s handling of the appellant’s complaints that have emerged on this appeal could and should have formed the basis for a judicial review challenge if they were to be pursued. Save to the extent that they could have been put before the First-tier Tribunal as a simple application that the Commissioner should take the appropriate step of responding to the appellant’s 14 December 2022 email that had been overlooked, the appellant’s complaints are in reality challenges to the merits of the Commissioner’s outcome decision and, as such, they belonged in the High Court and not in the First-tier Tribunal.