Whether the Department 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

24 June 2022

Background

In a request dated 14 November 2021, the applicant sought access to all records that contain the terms UFO, UAP and UAPTF, to include correspondence received by the Minister for Foreign Affairs from both internal and external sources and records of instructions on action to be taken on foot of such correspondence. The request covered the period from 1 January 2020 to the date of the request.

In a decision dated 15 December 2021 the Department refused the request under section 15(1)(a) of the FOI Act on the ground that no relevant records could be found.

On 12 January 2022, the applicant sought an internal review of that decision. In its internal review decision dated 14 February 2022, the Department affirmed its refusal of the request under section 15(1)(a). On 26 February 2022, the applicant applied to this Office for review of the Department's decision. He said he had documents in his possession that contradict the refusal under section 15(1)(a).

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 correspondence between the applicant and the Department as outlined above, and to communications between this Office and both the applicant and the Department on the matter.

Scope of Review

During the course of the review, the applicant was asked to clarify the nature of the documents in his possession and to provide his reason(s) and supporting evidence for arguing that the Department should hold relevant records. No response has been received to date.

Following queries raised by this Office during the review, the Department said the internal reviewer subsequently made enquiries with the Minister's Office and asked it to search its eCorrespondence system for relevant records as she did not have access to that system. This search yielded twenty records, of which thirteen were released in full to the applicant. The remaining seven records were part-granted to the applicant, with the redaction of third party personal information under section 37(1) of the Act.

Following receipt of the Department's 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. As the applicant has not engaged with this Office, I do not know whether he considers that further relevant records should exist, or whether he is satisfied with the records released. On the other hand, 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.

Accordingly, this review is concerned solely with whether the Department 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. I do not propose to consider the applicability of section 37(1) to the information redacted from a number of the records in light of the failure of the applicant to indicate if he wished to pursue that specific aspect of the review.

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.

In its submissions, the Department provided this Office with details of searches it undertook in an effort to locate relevant records and its reasons for concluding that no further relevant records exist. As the applicant has already been provided with the details of the Department's submission, I do not propose to repeat those details in full here. However, I can confirm that I have had regard to them for the purpose of this review.

In short, the Department explained that it does not have a policy on Unidentified Flying Objects (UFOs), Unidentified Ariel Phenomena (UAPs) or the United States' Unidentified Ariel Phenomena Task Force (UAPTF), and does not have a remit specifically in relation to these matters. It said no records falling within the scope of the request were found following searches, which were carried out in the International Security Policy Unit, the Political Secretariat, the US and Canada Unit, and the eCorrespondence system. It said following receipt of a request from this Office for details of the searches it had conducted, the Minister's Office was contacted to enquire whether there might be relevant records on its eCorrespondence system. As outlined above, this system was not searched previously as the internal reviewer did not have access to it. Following this additional search, twenty records were located, which were released to the applicant in the manner outlined above.

Having considered the details of the searches undertaken by the Department, its explanation as to why no further records could be found, the contents of the records released during the course of the review, and in the absence of evidence to suggest that additional searches are warranted, I am satisfied that the Department has carried out all reasonable steps in an effort to locate all relevant records in this case. Accordingly, I find that the Department was 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 apart from those already located and released, on the ground that no further relevant 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 Department 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