Welcome to this week’s Weekly Constitutional, where a judgment or other formal document is used as a basis of a discussion about law and policy. This week’s legal text is the Environmental Information Regulations 2004.
The Advanced Research and Invention Agency (ARIA) is a grand-sounding UK public body charged with doing grand-sounding work in the public interest. It is even at a grand sounding location—“c /o Alan Turing Institute, The British Library”.
And everything on its website emphasises its important mission: “ARIA funds breakthrough R&D in underexplored areas to catalyse new paths to prosperity for the UK and the world. […] We empower scientists and engineers to pursue research that is too speculative, too hard, or too interdisciplinary to pursue elsewhere”.
But ARIA does not want you to know anything detailed about what it does or about how it spends its hundreds of millions of pounds of taxpayer money. And so determined was ARIA to resist disclosure of how the funding was spent, this august scientific agency was reduced to legalistic contortions of claiming environmental information was not “environmental information”.
ARIA failed in this absurd defence and the story of how it was defeated is well told by those who defeated it—Peter Geoghegan and Lucas Amin—at this blogpost. This Weekly Constitutional now looks at the same story from a legal perspective to work out why ARIA resorted to such ridiculous legal tactics.
ARIA is a public body formed by its own Act of Parliament. But when it was created somebody must have decided not to add this new agency to the schedule of public bodies which have obligations under the Freedom of Information Act (FOI Act). This was no doubt part of the effort to give ARIA “extreme freedom from red tape”.
Adding a new public body to the FOI Act schedule is a routine act: its omission can only have been deliberate. And there is no doubt ARIA is a public body: its own website describes it as a “non-departmental public body, sponsored by the Department for Science, Innovation, and Technology”.
And whoever made that decision must have thought that exclusion was very clever, for at a stroke it made it impossible for the public and the media to use the (admittedly weak) FOI Act to obtain any detailed information about this well-funded public body.
But whoever made that decision also did so either without competent advice from a government lawyer or they ignored that advice, for any competent government lawyer would advise that the FOI Act is not the only legal regime for the request and disclosure of information. There are also the Environmental Information Regulations 2004 (the EIRs)—old European Union legislation from pre-Brexit days which still has legal effect.
If requested information comes within the scope of the EIRs then it has to be disclosed to the public unless the government body can show otherwise. At the time ARIA was established, it would have been open to the government to exclude it from the EIRs by primary legislation, as the UK had left the EU. But nobody seems to have realised it may be an issue.
And so Peter Geoghegan and Lucas Amin had the idea of requesting expressly environmental information from ARIA—in particular in respect of ARIA’s “Scoping Our Planet” project. ARIA describes this project as follows: “Can we fill gaps in Earth system measurement to respond confidently to the climate crisis? From sensors that fingerprint methane emissions to measuring ocean mixing by combining seismic reflection + hydrographic data, we're funding an array of projects with up to £500k each, across individual research teams, universities and start ups to maximise the chance of breakthroughs.”
One would think that there could not be a request for information more fitting for the EIRs. If this was not environmental information then it is hard to see what would be environmental information. And so the request went in on 5th August 2024.
The advanced scientific agency responded that after not just “consideration” but “careful consideration” that the information requested “does not fall within the scope of “environmental information”. Few things so ludicrous could have been typed by anyone at any public body, let alone one at a supposedly leading research body.
An internal review was requested. ARIA said the internal review would be led by no less than its CEO. The review took from August to October 2024. And then in a letter dated 23rd October 2024 ARIA again claimed that the request was not for “environmental information”.
Peter Geoghegan and Lucas Amin then referred the matter to the Information Commissioner (ICO), who promptly told ARIA—in effect—to stop being so silly. In a sheepish letter dated 18th February 2025, ARIA said “The ICO has informed us that it is of the view that the ‘research outputs’ within the scope of your request fall within the definition of ‘environmental information’ in the EIRs.”
Substantial and detailed information was then disclosed, showing where taxpayer money was going and in respect of what. A look through the table provided reveals the funded activity includes work on climate models, emissions models, and so on. No sensible person looking at the information disclosed would deny that it was environmental information.
So how did this public body get itself into the preposterous situation of denying environmental information was “environmental information” under the regulations? Why would ARIA risk its reputation for scientific seriousness on such a madcap legal defence?
There would appear to be two broad reasons. The first is that it can be standard operating procedure for a public body faced with an unwelcome request for information either under the FOI Act or the EIRs to deny that the legal regime even applies. Such a response is, of course, logically and legally prior to assessing whether any exemptions under the relevant regime apply. It is essentially the first move.
Such a response, however, can look daft in certain circumstances. And here it seems that ARIA adopted a position in response to the EIRs request without really thinking through its implications.
ARIA seemed so focused on resisting disclosure that it was blinded to what it was saying aloud in formal correspondence. A better-advised approach would have been to accept the EIRs apply to environmental information and to move straight onto applying any relevant exemptions. Eventually, this is what ARIA did, but it really should not have needed an ICO intervention to get there.
The second reason is the general sense in central government that such information should not be disclosed. There is a notion that publicly funded projects should be closed from public scrutiny, that those with public power know best and that such information should remain private to those with power.
Such “establishment” thinking shows an elite wanting public money but not public accountability. And the only way this establishment thinking can be routed, and the elites disarmed, is by improving accountability and giving greater force to the FOI Act and the EIRs. For it does not take an advanced science agency to tell us that sunlight is the best disinfectant.
The author is a former central government Freedom of Information lawyer
