The government has been forced to reveal why it tried to shield an £800m “high risk, high reward” scientific research body from transparency rules.

Experts have said the revelations “confirm how weak the government’s case is” and that the Freedom of Information Act “is not safe in the government’s hands”.

Ministers at the Business, Energy and Industrial Strategy (BEIS) department set out their plan in February 2021 to create the Advanced Research and Invention Agency (ARIA). The agency is expected to materialise later in 2022; BEIS announced the appointments of its chief exec and chair this week.

ARIA will not be subject to the FOI Act, however, because BEIS wanted to “remove the burden of processing FOI requests”.

For more than a year, politicians and transparency organisations have urged the government to reconsider its decision. A BEIS minister once branded the FOI Act as “a “truly malign piece of legislation”. The act allows the public, including journalists, to request and view information held by public authorities, and is a cornerstone of British transparency law.

openDemocracy’s case

In May 2021, openDemocracy sent a request to BEIS for copies of the evidence that informed its belief that ARIA could and should be exempt from the core transparency law that governs public information in the UK.

BEIS rejected the request, and openDemocracy complained to the information rights watchdog, the Information Commissioner’s Office. 

But in April this year, the ICO sided with us, saying the public needed to understand why the government was trying to keep ARIA away from scrutiny.

As a result, BEIS has been forced to show us its internal discussions on the matter.

“BEIS have been caught out withholding information that should have been freely available and, if it had been, would have enhanced the scrutiny process,” said Tom Brake, head of Unlock Democracy.

FOI expert Martin Rosenbaum added: “The documents confirm how weak the government’s case is. If this is all the evidence they had, it certainly isn’t evidence-based policy making. This is a classic example of why releasing policy discussion is in the public interest, so that inadequacies can be revealed.”

The documents provide an insight into how civil servants formulated a case to support the position that ARIA should be exempt, even though they knew it might not hold water. Former BEIS minister Amanda Solloway “gave a steer that the rationale for pursuing the FOI exemption” should be focused on the need for ARIA to “maintain a competitive advantage”, but a civil servant pointed out that authorities covered by the FOI Act were already protected from releasing genuinely commercially sensitive information.

Another document saw an unnamed official arguing that, if ARIA was subject to the FOI Act, it “would constitute an overly burdensome obligation on a small and agile institution”. A civil servant wrote how the public body UK Research and Innovation (UKRI) “received over 300 FOI requests in 2019/20 and serviced these with a team of approximately 15 full time staff”.     

But this has been described as “misleading”. FOI expert Martin Rosenbaum said: “The briefing material misleadingly implies that UKRI has 15 full-time staff dedicated to dealing with 300 FOI requests a year. This can’t be true, unless they have the lowest productivity of any FOI team in the public sector.”

Even UKRI itself told openDemocracy that its 15 information rights workers also carry out work in other “key areas such as data protection”.

The Campaign for FOI said comparing ARIA to UKRI was “highly misleading” because UKRI has a “vastly greater range of functions”.

Attempts to invoke national security

An intriguing aspect of the disclosures is the revelation that Number 10 itself had initially asked BEIS to add ARIA “to the list of bodies in section 23 of the FOI Act”.

That section exempts information from disclosure if it is directly or indirectly related to security services such as MI6 and the Government Communications Headquarters (GCHQ).

Katherine Gundersen of the Campaign for FOI said: “The decision to exclude ARIA from FOIA was obviously taken by Number 10 first, before any plausible justification had been made…

“That No.10 wanted the same protection for ARIA as the security services enjoy when ARIA has no security functions shows its complete disregard for FOI.” 

Earlier this year, cross-party MPs on the Public Administration and Constitutional Affairs Committee said in its report into the controversial Clearing House that the exclusion “evidences a slide away from transparency being viewed as helpful towards a view that it is a hindrance”.

They added: “This is a concerning trend and a wrong characterisation that should be challenged at the very top of government.”    

The former information commissioner Elizabeth Denham has also spoken out against ARIA’s exemption. Addressing MPs on the Public Administration and Constitutional Affairs Committee (PACAC) last year, she said: “I am concerned when new public bodies are created that are not subject to the same transparency requirements as other public bodies.” 

Brake added: “The information that BEIS tried to keep out of the public domain reinforces what we already knew. The main justification the government has given for excluding ARIA from FOI is because, in their view, ARIA's activities will be of significant public interest and will trigger FOI requests which ARIA would struggle to handle.

“But this is a problem of the government's own making because they chose not to provide ARIA with the resources to deal with FOI in the first place.

“This justification should ring alarm bells as it could be used to exclude any other organisation from FOI in the future. So should the government's failed attempt to have ARIA classified as equivalent to the security services. FOI is not safe in the government’s hands.”

A government spokesperson said: “The reasons for the FOI exemption have already been debated extensively and agreed to by both Houses of Parliament during the passage of the ARIA Act 2022.

“In designing the Advanced Research and Invention Agency, the government has aimed to reduce the administrative burden on the small team of ARIA’s staff wherever possible.”