Jonathan Lord v 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 Northumbria Police concerning his request to delete data it held about him dated 17 August 2024. The complaint was submitted to the Information Commissioner (“IC”) on 9 September 2025 and was dealt with under reference IC-331754-J1T5.

2. On 17 August 2024 the Applicant made a request to Northumbria Police (“the Police”) to delete data it held about him in relation to an incident. The Police responded to the request on 4 September 2024. It explained that the College of Police’s Management of Police Information (“MOPI”) guidelines provided that data relating to incidents such as that involving the Applicant, which fell within “Group 1” of the guidelines, may be retained until the individual had reached 100 years of age, subject to a ten yearly review. The Applicant was therefore advised that the data would be retained until he reached the age of 100 years and then disposed of if there is no longer a policing purpose to retain it.

3. On 9 September 2024, the Applicant submitted a complaint to the IC about the Police’s refusal to delete the information it held.

4. On 16 January 2025, the IC’s case officer wrote to the Applicant. The case officer advised that a blanket policy to retain records until a data subject reached 100 years of age was unlikely to be proportionate, particularly where the record concerned an arrest that did not result in further action. Further, the case officer advised that under section 39(2) DPA18, law enforcement organisations had to establish periodic reviews to determine if personal data processed for law enforcement purposes should continue to be held.The case officer explained that he was therefore going to contact the Police to ask them to ensure that the Applicant’s record was reviewed at appropriate intervals and securely deleted when no longer required. The case officer added that data protection law did not prescribe fixed timeframes for the retention of data, and that it was for the controller themselves to determine how long it was necessary to retain data to fulfil their legitimate functions. The case officer said he would also request that the Police contact the Applicant in relation to his request to erase his biometric data and inform him of the retention period applicable to such data if they had not already done so. The case officer wrote to the Police to this effect on the same day.

5. On 20 February 2025, the Applicant emailed the case officer acknowledging that, in the circumstances, the immediate deletion of his data may not be possible. However, he asked how long it would be proportionate for the Police to retain the data and whether the case officer considered a period of 10 years to be appropriate.

6. The case officer replied on 26 February 2025, again advising that data protection law required that personal data was not kept for longer than necessary but did not set out specific retention periods. It was explained that it was for controllers themselves to establish how long it was necessary to retain specific data in order to fulfil their legitimate functions. The case officer added that the Applicant had the right to take his own legal action against the Police, but that this was not something which the IC could assist with and recommended he should seek independent legal advice if he wished to pursue that course of action.

7. On 16 April 2025 the Applicant emailed the IC explaining that he considered the Police’s decision to retain his data for as long as it had to be excessive, and urged the IC to intervene.

8. On 2 May 2025, the case officer wrote to the Police to ask whether it had taken any further steps to review the Applicant’s data, including his biometric data, and if it had provided any further response to him to explain any review periods that applied.

9. The Police replied to the case officer on 8 May 2025. It explained that the Police had written to the Applicant on 4 April 2025 confirming that (i) he was not being investigated for any incident (ii) the Police did not hold any photographs or biometric data about the Applicant; (iii) data that was held in connection with the incident may be retained until 100 years of age, however, this would be reviewed after the minimum retention period which was 10 years, at which point a risk based decision would be made on whether the data should be disposed of or retained.

10. The case officer wrote to the Applicant on the same day informing him of the response that had been received from the Police. The case officer advised that he was satisfied that the Police had provided an appropriate response to the Applicant’s request and that the IC would not be taking any further action.

11. In light of the Applicant’s continued dissatisfaction with the handling of his complaint, the IC carried out a case review. The outcome of that case review was provided to the Applicant on 22 July 2025. The reviewing officer confirmed that she was satisfied that the case officer had handled the complaint in accordance with ICO guidelines. In his correspondence about the handling of his complaint, the Applicant had also queried whether the Police were correct to categorise the incident in which he was involved as falling within “Group 1” of the College of Police’s MOPI guidelines, (which relate to “serious offences and public protection matters”), arguing that it fell within “Group 3”, which attracted a lesser retention period. The reviewing officer explained that how offences were categorised under the MOPI guidelines was not a matter for the IC. However, she said she would ask the Police to consider providing a more detailed explanation as to why an offence falls within a particular Group within the MOPI guidelines when an individual raises concerns about this in the future. Additionally, she would ask the Police to consider whether there was any further information it could provide to the Applicant to help him understand why the incident he was involved in fell within Group 1 of the MOPI. The Application

12. The Applicant applied to the Tribunal by way of form GRC3 dated 3 September 2025. He stated at paragraph 19 of the Grounds of Appeal that the outcome he was seeking was as follows: a. Allow this appeal; b. Set aside the IC’s decision; c. Direct the IC to reconsider my complaint in accordance with the DPA 2018; and/or d. Substitute its own decision directing the IC to take regulatory action (e.g., an enforcement notice) against Northumbria Police in relation to the data retention practices applied to him.

13. The Applicant stated in his grounds of appeal that he considered the length of time planned to retain the data in question is excessive and he believed the IC had not investigated his complaint to the appropriate extent. The strike-out application

14. The IC applied by way of form GRC5 dated 1 October 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”).

15. The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 40-43. In summary, these were as follows:  a. It is clear from the grounds in support of the application that the Applicant does not agree with the outcome provided on his complaint.However, as set out above, section 166 DPA18 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 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) DPA18, limited solely to those orders that are set out in section 166(2). b. The IC has taken appropriate steps to investigate and respond to the Applicant’s complaint and has provided an outcome to him. Accordingly, it is respectfully submitted that the IC has complied 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. The remedies sought by the Applicant in relation to this matter are not within those available to the Tribunal under section 166 DPA18. d. If the Applicant wishes to seek an order of compliance against the Police 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 DPA18.

16. I directed that the Appellant should provide representations in relation to the strike out application by 15 October under Rule 8(4)

17. The Applicant provided a Reply to the Response dated 6 October 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 Applicant made the following observations: “As I may have stated to the ICO privately, before lodging my application to the Tribunal, I had initially intended to seek a Judicial Review against the ICO in the High Court. I did not go through with this plan as there would have been significant financial risks involved. A Judicial Review against the Police would not be possible either, on the basis that a Judicial Review is a last and final resort. For the reasons above, I had decided lodge an application to the First-Tier Tribunal without being well equipped with the whole knowledge of what jurisdiction the Tribunal has, or what purpose the GRC1 form serves. After evaluating my application to the Tribunal, I admit that my directions may not be realistic or those that is in the Tribunal’s jurisdiction.”

18. The Applicant went on to state: “As part of this reply, I also invite the Tribunal to strike out the proceedings for the same reasons as stated in the ICO’s response, if the Tribunal deems this course of action appropriate. Civil proceedings directly against the Police in County Court may take place in the future when I consider myself fully prepared to do so” Legal framework

19. 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.”

20. 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.

21. 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 complaintincludes— (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.”

22. 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."

23. 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…”.

24. 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).

25. 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).

26. 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.”

27. 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

28. The first question is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response to his complaint on 16 January 2025 with further responses on 26 February and 8 May 2025 and another response on 22 July 2025 following a review. I consider that the response dated 16 January 2025 was in fact an outcome to the complaint.

29. Even if I am wrong on this, I am satisfied that when taken together with the other three responses, 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).

30. 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.

31. The outcome sought by the Applicant in the Application is to set aside the IC’s decision, direct the IC to reconsider his complaint and require the IC to take regulatory action against Northumbria Police in relation to its data retention practices. The Tribunal has no power under section 166 to make such orders. Its powers are limited to ordering the IC to progress its handling of the Applicant’s complaint.

32. 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.

33. 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.

34. 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.