The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

Looking Behind the Curtain

27 May 2022

Information Commissioner’s Office Decision Notice IC-144871-H3T3

The Information Commissioner has decided that the Department for Business, Energy, and Industrial Strategy (“BEIS”) is not entitled to withhold the evidence which informed the government’s decision to exclude the Advanced Research and Invention Agency (“ARIA”) from the Freedom of Information Act 2000 (“FOIA”).  In doing so, the Commissioner has provided useful guidance on the application of the government policy exemption under s. 35(1)(a) FOIA.

ARIA is the government’s new science and technology research body.  It is independent from the government and cast in the model of the well-known US Defense Advanced Research Projects Agency (“DARPA”).  It has been put on a statutory basis, and given a significant £800 million budget.  It is also exempt from freedom of information requests, a decision which the government asserted was “evidence-informed”.

From that assertion flowed this challenge.  In the complainant’s words, “The public deserves to know how rigorous this evidence is, and what research has been relied upon to inform its position.”

The Information Commissioner accepted that the material in question fell firmly within the scope of s. 35(1)(a).  In the Commissioner’s view, the government policy exemption functions to create a “safe space to consider policy options in private”.  Policy development, the Commissioner held, could continue up to the point a Bill received royal assent and became legislation.

Further, the Commissioner stated that the information in question did not have to be created as part of the policy making process; a “significant link” between the information and activity to which it related would be sufficient.

Although the Commissioner accepted that the government should be able to conduct lively policy discussions away from prying eyes, it concluded that the public interest in disclosure of the evidence relating to ARIA’s exemption from the FOIA regime was stronger than the public interest in withholding the information.

In the Commissioner’s view, ARIA’s substantial budget, as well as the need to understand the “unusual policy decision” taken to exclude ARIA from the FOIA regime, weighed in favour of disclosure.  The Commissioner also pointed to the timing of the request as an important factor: although the need to protect policy makers from undue external scrutiny would be at its highest when the issue in question was still live, the circumstances of this case afforded greater weight for the public to understand the rationale underpinning the government’s position.

The Commissioner was also unpersuaded that disclosure would result in a chilling effect on future policy debates, given that: (a) the Commissioner expects ministers and advisors to be “robust in their positions” and therefore not easily influenced by the potential of public scrutiny of the decision-making process; and (b) there was sufficient information in the public domain at the time of the request to reduce the sensitivity afforded to the withheld information.

Further reading

Decision notice

The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.

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