28. The unique function of the Tribunal is relevant to the complaint. It is an
independent body established to investigate the substance of such
complaints. By virtue of its powers under R1PA it is in a different position
from an ordinary court or from other tribunals, such as the Information
Tribunal, faced with a complaint about the holding of personal data and with
an NCND response from the intelligence services to a request for access
and disclosure. The Tribunal does not have to accept the NCND response
as final or as preventing investigation of the facts by it. A decision by this
Tribunal thus falls to be distinguished from a case where there is no way of
resolving the issue of existence of the data, and a court or tribunal is left to
make its decision only on the basis that there may (or are reasonably likely
to) be such data, so that the answer has to be provisionally, or assumed to
be, yes. That was and would be the case in the Information Tribunal (see
the Baker Information Tribunal Decision at paragraph 67: "m any event in
this particular case there is evidence consistent with the Appellant's own
statement which raises a sufficient case that he may be being denied access
to any existing file" and the European Commission in Hilton at pages 1617: "the Commission is therefore of the opinion that the Applicant has not
shown that there is at least a reasonable likelihood that the Secret Service
has compiled and continued to retain personal information about her"). This
Tribunal can and must resolve the factual issue as to the existence or nonexistence of the relevant data.
29. There are thus two possible outcomes of the Tribunal's investigation on
this aspect: