Arthur Roderick Leonard Hinkel v The Information Commissioner

Neutral citation number: [2026] UKFTT 00697 (GRC) Case Reference: FT/EA/2026/0048/GDPR First-tier Tribunal (General Regulatory Chamber) Information Rights Decided without a hearing Decision given on: 14 May 2026 Before JUDGE HARRIS Between ARTHUR RODERICK LEONARD HINKEL Applicant and THE INFORMATION COMMISSIONER Respondent Decision: The Application is struck out under Rule 8(2)(a) because the Tribunal does not have jurisdiction to deal with it and under Rule 8(3)(c) because there is no reasonable prospect of it succeeding.  REASONS

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 complaint in relation to Alfreton Close Residents Society Limited (“the Company”), of which he is a shareholder. The complaint was submitted to the Information Commissioner (“IC”) on 14 May 2025 and was dealt with under reference IC-3892980-R9T3.

2. The complaint involved concerns surrounding purported legal advice given to the chairman and directors of the Company in relation to insurance and maintenance payments following the strike off of the company who conducted the maintenance. The Applicant stated he had requested the names of the individuals who provided the legal advice and received no response.

3. On 7 January 2026, the IC’s case officer wrote to the Applicant stating that no further action would be taken and the matter would be kept on record for information purposes.

4. On the same date, the Applicant called and emailed the Respondent expressing his dissatisfaction and stating he would be taking the matter to the Tribunal.

5. The IC undertook a case review and wrote again to the Applicant on 9 January 2026 outlining that the case would fall outside of the ICO remit. The reviewing officer explained that this was because the Applicant’s concerns around the refusal to disclose the name of senior lawyers and/or the correspondence with such lawyers does not amount to the Applicants personal data and thus is it not covered under the UK GDPR. The IC stated that as a result no further action would be taken. This case review outlined that this was the final stage of the ICO’s case handling procedure and outlined options for the Applicant going forward. The Application

6. The Applicant applied to the Tribunal by way of form GRC1 dated 3 February 2026. In directions dated 6 February 2026, the Tribunal accepted this form as an application for an order under section 166 of the DPA 2018 because the Applicant was complaining about the IC’s response to a data protection complaint. The Tribunal considered that that the matter does not involve a public authority and so is not an appeal under the Freedom of Information Act 2000 (“FOIA”).

7. He stated that the outcome he was seeking was as follows: “The Commissioner order Alfreton Close Residents Association Limited to disclose to me the names of the two alleged senior legal practitioners and copies of the advice received and correspondence entered into.”

8. In his grounds for the Application, the Applicant explained his connection to the Company and that his title deed to his property contains a covenant with another company, Site Developments Limited (“SDL”), the freeholder of a road and common areas site over which the Applicant’s title has right of way but an obligation to maintain and insure. He explained that SDL was struck off as a company in February 2025, since which time its freehold has been held by the Crown Estate which neither maintains nor insures the land. The Applicant contends that the value of his property has been negatively affected by this. He says the chair and directors of the Company stated that they had sought legal advice as to the effect of SDL being struck off, but the Company has refused to disclose the names of the lawyers who gave advice or provide copies of their advice to the Applicant. The Applicant stated that his was his right under Schedule 2 Part 1 (5)(1-3) of DPA 2018 to receive this information and thus the IC’s decision is unlawful The strike-out application

9. The IC applied by way of form GRC5 dated 27 February 2026 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”).

10. 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 in relation to this matter are not within those available to the Tribunal under section 166 DPA 2018. The Applicant is, in effect, seeking an order that the IC issue a Compliance Order to the Company. If the Applicant wishes to seek an order of compliance against a data controller for any alleged breach of his data protection rights, the correct route for him to do so is by way of separate civil proceedings in the County Court or High Court under section 167 of the DPA 2018. b. The authorities confirm that the IC has a wide discretion on how complaints are dealt with and the expertise on how to apply his discretion. In doing so, the IC has considered all of the material provided by the Applicant. The IC’s letters dated 7 and 9 January 2026 address the complaint as it was provided to the IC; namely, that the names of the legal practitioners do not amount to the Applicant’s personal data and that no further action will be taken. c. A statutory compliant outcome which is not partial has been provided to the Applicant As a result, the Application is akin to a merit-based claim through the back door as warned against in Smith and does not fall under the jurisdiction of the Tribunal. d. It is clear from the grounds in support of the application that the Applicant disagrees with the outcome provided on his complaint.However, as set out above, section 166 DPA 2018 does not provide a mechanism by which complainants can challenge the substantive outcome of a complaint. The relief available from the Tribunal on an application under section 166 DPA 2018 only applies where it is satisfied that the IC has failed in some procedural respect to comply with the requirements of section 166(1) DPA 2018, limited solely to those orders that are set out in section 166(2). e. The IC also noted that the Application was submitted out of time.

11. The Applicant wrote to the Tribunal on 27 February 2026. This stated that he made a request to the Company for information to be used for purposes of litigation. The request was for the names of “two senior legal practitioners” that had been referred to in an email. He says that this application was made in accordance with Schedule 2 Part 1(5) (1-3) of the DPA 2018.

12. Judge Oliver directed that the Applicant should provide representations in relation to the strike out application by 8 May 2026 under Rule 8(4). In the reasons for her directions, she stated that she considered the proceedings may have no reasonable prospect of success because: a. Section 166 DPA only allows the Tribunal to consider procedural matters relating to a complaint by the Information Commissioner. It does not allow the Tribunal to reopen the merits of the complaint. b. The Applicant’s complaint is about a refusal to provide the names of third parties. This is not something he is entitled to under the DPA. It is not a complaint about a refusal of a request for his own personal data, which would be covered by the DPA. c. This does not appear to be a complaint relating to freedom of information, because the information was not requested from a public authority that would be covered by FOIA. d. Schedule 2 DPA does not give the Applicant a right to obtain information about third parties for the purposes of legal proceedings.

13. The Applicant wrote to the Tribunal in response to Judge Oliver’s directions on 1 May 2026 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. He did not make an application for consideration of procedural matters. b. The IC and the Tribunal have failed to understand his valid Section 2 request, which he states is a Subject Data Request and the subject is “my own person”. He states that the legal advice sought by the Company was “about me and my opinions”. He refers to an email which he sent to the Tribunal on 27 April 2026 and to an AGM of the Company on 26 April 2026 which he says evidences the fact that he is the data subject. c. The text of the request for information dated 13 April 2025 was as follows: “I hereby request the following information that is required for purposes of litigation:

1. The names of the “two senior legal practitioners” referred to in the E-mail dated Sunday 13 April 2025 timed at 10:58:50

2. Copies of all correspondence between ACRSL [the Company] and the two senior legal practitioners.” d. The Applicant explains at length what his understanding of Schedule 2 DPA 2018 and refers to case law in relation to section 40(1) of FOIA. e. He requests the Tribunal to order the Company to comply with his Schedule 2 request and provide him with information about the unnamed lawyer who he said was paid using shareholders’ funds to advise about me or alternatively to rule that the Company is likely to be ordered to do so if the Applicant has to make a new complaint to the IC about this previously unknown engagement and payment. Legal framework

14. 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.”

15. 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.

16. 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.”

17. 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."

18. 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…”.

19. 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).

20. 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 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.” (paragraph 33).

21. 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.”

22. 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

23. I find as a matter of fact that the request which was made on 13 April 2025 does not mention the fact it is intended to be a data subject access request, nor does it indicate that the information sought is information about the Applicant and/or his personal data, as it appears to be seeking information about the legal practitioners involved, who are not the Applicant.

24. I agree with Judge Oliver’s view that Schedule 2 Paragraph 5 of the DPA 2018 does not give the Applicant a right to apply for information that is not his personal data; there is no enactment or court order requiring disclosure of the information sought and the section cited simply provides exemptions from the normal operation of UK GDPR in relation to personal data in circumstances where that personal data is sought in specified contexts.

25. In applying section 166, the first question I must consider is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response to his complaint on 7 January 2026, with a further response after review on 9 January 2026. I consider that the response dated 7 January 2026 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 9 January 2026, 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 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 outcome sought by the Applicant in his response to the strike-out application is disclosure by the Company of the documents it has withheld. The Tribunal has no power under section 166 to direct the Company to make disclosure to the Applicant. Nor does it have any power to threaten the Company with consequences for non-compliance. Its powers are limited to ordering the IC to progress its handling of the Applicant’s complaint.

29. 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 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.

30. 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.

31. 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)(c) because there is no reasonable prospect of them succeeding.