Section 166 DPA 2018 not "working as anticipated"?

P. Ferguson made this Freedom of Information request to Information Commissioner's Office

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Dear Information Commissioner's Office,

Judge Wikeley In 'Scranage' (15 June 2020) observed:

“34. A comprehensive strategic review of the various appellate mechanisms for rights exercisable under the DPA is arguably long overdue. This might include consideration of whether the section 166(2) procedure is working as anticipated. Anecdotally at least, the experience of both the First-tier Tribunal and the Upper Tribunal is that a significant proportion of these applications have little merit yet consume a considerable and disproportionate amount of judicial and administrative resources.”

http://www.bailii.org/uk/cases/UKUT/AAC/...

I would like:

A. all the information you hold concerning how you anticipated the section 166(2) procedure to work prior to it being enshrined in law; and

B. all the information you hold concerning how the section 166(2) procedure has been working since it became enshrined in law.

Yours faithfully,

P. Ferguson

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P. Ferguson left an annotation ()

Christopher Knight, who acted for the ICO in Platts (EA/2018/0211/GDPR), considers section 166 in a piece wittingly entitled 'Section 166 DPA 2018: Leighton off the ICO?'

https://panopticonblog.com/2020/03/13/se...

He observes:

'A series of FTT decisions have interpreted the scope of the s166 jurisdiction relatively narrowly, and in particular, construed it as not affording to the FTT a jurisdiction over the substance of the complaint or the ICO’s view as to the substance of the complaint: see, e.g., Platts v Information Commissioner (EA/2018/0211/GDPR). Now the Upper Tribunal, in the form of Judge Wikeley, has reviewed the position (albeit in a detailed permission to appeal decision) in Leighton v Information Commissioner (No.2) [2020] UKUT 23 (AAC).'

PLATTS:

http://informationrights.decisions.tribu...

LEIGHTON:

https://www.bailii.org/uk/cases/UKUT/AAC...

ICO Casework, Information Commissioner's Office

3 August 2020

Case Reference: IC-48657-T0C1

Dear P. Ferguson

Thank you for your email of 26 July 2020 (formally received on 27 July
2020). This contained a request for information and was passed to the
ICO’s information access team.

Under statutory timeframes our response to your request is due by 25
August 2020. However, please note that during this pandemic period it may
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Yours sincerely,

Frederick Aspbury
Senior Case Officer
Information Commissioner's Office

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
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J Roberts left an annotation ()

Section 166 DPA 2018 is referred to in this recent application for judicial review:

'40. As I have said, a complaint to the ICO under s165 Data Protection Act 2018 is relied upon both by Mrs AB and the Defendants as providing an adequate alternative remedy to judicial review...Mr Thomas confirmed that proceedings may be taken to compel the ICO to reach a decision under s166 Date Protection Act 2018, but there is no appeal to the First Tier Tribunal against its decision.'

https://www.bailii.org/ew/cases/EWHC/QB/...

Case No:CO/943/2020

J Roberts left an annotation ()

Some information on section 166 here:

https://www.whatdotheyknow.com/request/s...

Latest section 166 DPA 2018 case dealt with by Judge MacMillan:

http://informationrights.decisions.tribu...

EA/2019/0165/GDPR

'11. The Commissioner accepts that her substantive response to the Applicant’s complaint fell outside the 3-month timeframe stipulated by s. 166 DPA 2018. However, she submits that she has since taken appropriate steps to respond to the Applicant’s complaint and that there is no longer an Order for the Tribunal to make under s. 166 DPA 2018.

12. I have concluded that the Information Commissioner took appropriate steps to respond to the Applicant’s complaint on 16 May 2019 and 26 June 2019. Although her first substantive response was outside the 3-month statutory timeframe, she has since remedied this oversight. I am not persuaded that there has been a failure on the Commissioner’s part to address the matters in s. 166 (1) (b) and (c).'

J Roberts left an annotation ()

'Strike out' case:

http://informationrights.decisions.tribu...

EA/2020/0220/GDPR/V

'Having considered the submissions of both parties, I have concluded that there is no basis upon which the Tribunal could make an Order under s. 166 (2) DPA.'

ICO Casework, Information Commissioner's Office

1 Attachment

30 September 2020

Case Reference: IC-48657-T0C1

Dear P Ferguson

Please find attached my response to your information request of 26 July.

Yours sincerely,

Frederick Aspbury
Senior Case Officer
Information Commissioner's Office

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 0330 414 6397 [1]ico.org.uk [2]twitter.com/iconews
Please consider the environment before printing this email.

Please be aware we are often asked for copies of the correspondence we
exchange with third parties. We are subject to all of the laws we deal
with, including the data protection laws and the Freedom of Information
Act 2000. You can read about these on our website ([3]www.ico.org.uk).
Please say whether you consider any of the information you send us is
confidential. You should also say why. We will withhold information where
there is a good reason to do so.
For information about what we do with personal data see our privacy notice
at [4]www.ico.org.uk/privacy-notice.

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