Whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records of correspondence containing the terms UFO/UAP/UAPTF other than those already located and released on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

13 June 2022

Background

In a request dated 14 November 2021 the applicant sought access to records of all files, memos, emails, records and correspondence that contains the terms UFO, UAP and UAPTF, to include correspondence received by the Minister for Defence and a named Vice-Admiral from both internal and external sources and records of instructions on action to be taken on foot of such correspondence.

In a decision dated 24 November 2021 the Defence Forces refused access to the applicant's request under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found.

On 7 December 2021, the applicant sought an internal review of that decision. He said he has information that the named Vice-Admiral has received correspondence from the applicant as well as from another named party who shares his concerns that -�UAPS are critical events that could threaten air traffic and aerial security in Europe-�.

In its internal review decision dated 29 December 2021, the Defence Forces annulled its initial decision and granted access to one record, comprising a letter the Defence Forces received from a third party, with annotations. A small amount of information was redacted from the annotations under section 33(1)(a) of the Act. On 19 January 2022, the applicant applied to this Office for review of the decision of the Defence Forces.

During the course of the review, the applicant provided this Office with a copy of correspondence he had received from the Council of the European Union. He argued that based on that letter, and other creditable information he has but could not share at that time, the Defence Forces should hold other relevant records.

Subsequently, following queries raised by this Office, the Defence Forces carried out a search of the archived email account of the retired Vice-Admiral and located three emails he had received as part of an automatic mailing list that it is regarded as relevant to the request. It released the three records to the applicant, with the redaction of a third party mobile phone number under section 37(1) of the Act. It provided details of the searches undertaken to locate relevant records.

Following receipt of those submissions, the Investigating Officer provided the applicant with details of the searches undertaken and invited him to make a further submission on the matter. No such submission has been received.   

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by both the Defence Forces and the applicant. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant considers that further relevant records should exist. The Department's position is that it has now taken all reasonable steps to locate relevant records and that no further relevant records, apart from those already released, exist or can be found. This is, in essence, a refusal to grant access to further relevant records under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is concerned solely with whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the Act, to any additional relevant records coming within the scope of the applicant's request apart from those already released.

As the applicant did not raise any concerns about the small amount of information redacted from the records released, the review will not consider those redactions.

Analysis and Findings

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

As I have outlined above, the Defence Forces provided this Office with details of searches it undertook in an effort to locate further relevant records and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In its submissions to this Office, the Defence Forces said all correspondences received by the Chief of Staff office or sent from the Chief of Staff Office are filed in both paper copy and electronic copy. Electronic files are stored on a central Defence Forces system while paper files are stored in the Chief of Staff Office and are archived as necessary in accordance with the Defence Forces policy. It said a search was carried out of the email accounts of the Chief of Staff office staff, along with a search of relevant hard-copy files. As outlined above, a search of the archived email account of the now retired Vice Admiral was conducted and relevant records located were subsequently released. It said it could find no relevant correspondence with the Council of the European Union that the applicant considered should exist.

As I have also outlined above, this Office provided the applicant with details of the searches undertaken by the Defence Forces in this case and no response has been received.

While the applicant believes further records ought to exist, he did not provide any further evidence which would suggest that additional searches might be warranted. In the circumstances, and having considered the details of the searches undertaken by the Defence Forces and of its explanation as to why no further records could be found, I am satisfied that it has carried out all reasonable steps in an effort to locate all the records sought in this case. Accordingly, I find that the Defence Forces were justified in refusing, under section 15(1)(a) of the Act, the applicant's request for further relevant records relating containing the terms UFO/UAP/ UAPTF on the ground that no further records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces to refuse access, under section 15(1)(a) of the Act, to any further records of correspondence containing the terms UFO/UAP/UAPTF other than those already located and released on the basis that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
 

Stephen Rafferty
Senior Investigator