Whether the Defence Forces was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for files relating to unknown aerial objects or unknown aerial phenomena for the period January 2008 to December 2019, on the grounds that no relevant records exist or can be found
30 September 2021
The applicant submitted an FOI request to the Defence Forces on 18 June 2020 seeking:
1) All files relating to unknown aerial objects or unknown aerial phenomena for the period January 2008 to December 2019;
2) All correspondence files between the Defence Forces and a journalist from a named newspaper resulting in the release of UFO files in September 2007;
3) All files relating to unknown aerial objects or unknown aerial phenomena prior to May 1947.
Following an extension of the decision period under section 14(1) of the FOI Act, the Defence Forces issued a late decision on 30 September 2020 wherein it refused the request under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found. The applicant sought an internal review of that decision on 20 October 2020, following which the Defence Forces affirmed its refusal of the request. By letter dated 18 May 2021, the applicant sought a review by this Office of that decision.
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 the applicant and by the Defence Forces, correspondence between the parties and the content of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
Part 2 of the applicant’s request was for all correspondence files between the Defence Forces and a journalist from a named newspaper resulting in the release of UFO files in September 2007. During the course of the review, the applicant provided more specific details to this Office relating to the records sought, including the name of the journalist and a copy of an article published at the time. Following receipt of that additional information, the Defence Forces expanded its searches to include FOI files held in the Military Archives. Five records were identified and released to the applicant, with personal information relating to a third-party redacted in accordance with section 37(1) of the FOI Act. Following further enquiries from the Investigator, an additional record was released. The applicant subsequently confirmed that this part of his request was now dealt with to his satisfaction. As such, I have excluded part 2 of the request from the scope of this review.
Furthermore, during the review, the Investigator informed both the applicant and the Defence Forces of her view that, in accordance with section 11(4) of the FOI Act, no right of access existed to the records sought at part 3 of the request. These records, if they existed, would have been created before the effective date of the FOI Act, which is 21 April 1998 in the case of the Defence Forces. Section 11(5) of the FOI Act allows for some circumstances in which access to records prior to the commencement date of the FOI legislative regime can be granted but none of the circumstances set out in section 11(5) appeared to apply to this case. She invited both parties to make a submission on the matter. The Defence Forces agreed that no right of access existed to these records, and the applicant also accepted this. As such, I have also excluded part 3 of the request from the scope of this review.
Accordingly, this review is concerned solely with whether the Defence Forces was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for files relating to unknown aerial objects or unknown aerial phenomena for the period January 2008 to December 2019, on the grounds that no relevant records exist or can be found.
As outlined above, the Defence Forces decided to extend the period for issuing its decision on the request under section 14 of the Act on the ground that it was experiencing a high volume of requests. The grounds upon which an FOI body may extend the period for issuing a decision are quite limited. Section 13(1) of the Act provides that an FOI body shall make a decision on a request for records within four weeks of receipt of the request. However, under section 14(1), it may extend that four week period by up to four further weeks where it considers that;
a) the request relates to such number of records, or
b) the number of other FOI requests relating either to the record or records to which the specified request relates or to information corresponding to that to which the specified request relates or to both that have been made to the body concerned before the specified request was made to it and in relation to which a decision under section 13 has not been made is such,
that compliance with section 13(1) within the four weeks specified is not reasonably possible.
It was not open to the Defence Forces to extend the period for issuing its decision on the basis of the high volume of requests on hand. I expect the Defence Forces to bring this matter to the attention of its decision makers to avoid a repeat occurrence of the error.
Analysis and Findings
Section 15(1)(a) of the FOI 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. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether the 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 his/her decision and I 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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.
The Defence Forces provided submissions to this Office in which it outlined details of the searches carried out and its explanation as to why it believed no relevant records exist. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the Defence Forces’ position is that searches were carried out of electronic files and paper files in the following sections: Military Archives, Military Press office, Military Intelligence and the Air Corp. Each of these sections sent back a ‘nil return’ to the FOI office. It also stated that the Irish Aviation Authority, and not the Defence Forces, is the lead agency in Ireland on this matter. In commenting on the details of the searches carried out, the applicant queried why the Naval Service were not asked to carry out searches. The Defence Forces’ response was that it did not think that the Naval Service would hold such information and it would not have been relevant to contact it. For similar reasons, it explained that it did not contact the 1st Brigade or 2nd Brigade. It stated that if records existed relevant to the applicant’s request, the sections/units most likely to hold them would be the Military Archives, Military Press office, Military Intelligence and the Air Corp, all of which conducted searches.
Over the course of the review, the applicant submitted a number of media reports to this Office referring to various sightings of unknown aerial objects in Ireland within the timeframe of his request in support of his argument that the Defence Forces must hold relevant records.
Having examined the articles, I am satisfied that they do not support the applicant’s contention that the Defence Forces must hold relevant records. One of the articles from 2007 refers to a file on UFOs that was released by the Defence Forces to a named newspaper. However, that same article notes that a Defence Forces spokesman said that since 1984, the file was no longer maintained by the Defence Forces.
It seems to me that a key factor in this case is the contention of the Defence Forces that the Irish Aviation Authority (the IAA), and not the Defence Forces, is the lead agency in Ireland on this matter. Amongst other things, the IAA is responsible for the management of Irish controlled airspace. As such, I accept the contention of the Defence Forces that the IAA is the lead agency on such matters and that if relevant records exist, the IAA is more likely to hold such records. Indeed, a number of the articles submitted by the applicant indicate that the IAA was investigating alleged UFO sightings.
I would add that it was not open to transfer the applicant’s request to the IAA as it is an exempt agency, pursuant to Schedule 1, Part 2 of the Act. In the circumstances, I consider that it was reasonable for the Defence Forces to limit its searches to those areas that might hold relevant records given their likely subject matter.
In the circumstances, I find, on balance, that the Defence Forces has taken all reasonable steps to locate relevant records and that it was justified if refusing the request under section 15(1)(a) of the Act on the grounds that no relevant records exist or can be found.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces to refuse, under section 15(1)(a) of the FOI Act, the applicant’s request for files relating to unknown aerial objects or unknown aerial phenomena for the period January 2008 to December 2019, on the grounds that no relevant records exist or can be found.
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.