Nov 1, 2018

Exploring The Freedom Of Information Act, 2011 As A Tool For Holding Government And Public Institutions Accountable | By Henry Chibuike Ugwu




INTRODUCTION:

How much does a Nigerian senator earn as monthly salary? What are the allowances such a senator is entitled to? How many Nigerians know the amount of money spent on the health of the President annually? Can you state with certainty the total amount of money recovered from corrupt public officials so far by the Economic and Financial Crimes Commission (EFCC)? What is security vote and how much is a Nigerian governor given as security vote? Are Nigerians afforded a breakdown of the expenditures of such security votes by Nigerian governors? Sadly these are some of the many questions that Nigerians cannot answer about the government and its agencies. They are questions that require many months of exercise, prayers and strategy to commence the voyage of discovering their answers irrespective of the fact that they involve public servants and public funds, and which information ordinarily should be easily accessible by all Nigerians.



The issue of holding the government accountable to Nigerians with regards to how its arms and agencies disburse and use public funds, is very key if all Nigerians are to enjoy the dividends of democracy; and witness the prudent application of our resources for economic and infrastructural growth of the country.

More so, Nigerians must be able to demand from every public institution, information bordering on the workings and finances of such institutions and have these information supplied to them with dispatch. This should be the beauty of practicing a democracy- a system of government where the people, as the sovereign, elect political leaders to supervise public institutions and disburse public funds on their behalf.

With the kind of powers and obligations entrusted to government and its agencies by the sovereign- the people, it is, to say the least, extremely important that the people hold these officials of government accountable for all their activities in either the government or in public service.

Officials of the Nigerian government cannot be held accountable if the government is run by stealth, or its activities, policies, expenditures, etc, are unascertainable by the people. This is where the Freedom of Information Act (FOIA) 2011[1], comes in very handy.

Prior to the enactment of the FOIA, it was virtually impossible for ordinary Nigerians and Non-governments Organisations to demand from public institutions any particulars of their activities and secure the information sought. The people were incapable of ascertaining what their monies were used for, the particulars of disbursement and expenditure of public funds and the manner and basis in which recruitments for public service were conducted. We were left at the mercy of the media which in many circumstances provided us with inadequate or unreliable news.



OVERVIEW OF THE ACT:

Section 1 of the FOIA establishes the right of all Nigerians to have access to all information or records of public nature that emanates from or is in the custody or possession of any public official. The Section goes on to provide that an applicant for any such public information need not demonstrate any specific interest in the information sought and can proceed to a competent court to ensure such a request is complied with. This therefore removes all erstwhile embargoes with regards to locus standi that may have existed in the past against any such applicant for public information.

The FOIA in its section 2 imposes on all public institutions the obligation of recording and storing information about its activities, operations and businesses. The Act also directs all such institutions to publish certain information[2] in such a way that the information “is widely disseminated and made readily available to members of the public through various means, including print, electronic and online sources; and at the offices of such public institutions”.[3]

The framers of the FOIA intended that access to public information should be made as easy and simple as possible. This is why under the Act, an applicant can make an oral application for information of a public nature and the authorized official of such public institution to which such an oral application is made is required by law to reduce the application into writing, and afford the applicant with a copy of the written application.[4]

More so, illiteracy and other forms of disability that preclude a person from making an application in person for public records or information does not ipso facto  disentitle such a person from accessing such information under the Act. This is so because the law allows such a person to make application under the Act through a third party.[5]

The Act also stipulates a timeframe of seven (7) days within which an applicant’s request for information is to be attended to by a public institution. The seven (7) days begins to run from the moment an institution or public official receives an application for information. The public institution is to make available the information sought by an applicant or communicate to such an applicant via written notice, its reasons for refusing to afford the applicant with part or all the information requested for.[6]

Where a public institution receives an application for access to information and which information it considers another public institution to have greater interest in, the former shall transfer the application for such information to the latter and the applicant shall be notified of such transfer via a written notice in accordance with the FOIA.[7]

Also imperative to note is the fact that under the FOIA, where a case of wrongful denial of access to public information is established, the defaulting officer or institution commits an offence and is liable on conviction to a fine of five hundred thousand (N500,000.00) naira.[8]The FOIA also makes it a criminal offence punishable with a minimum sentence of one year imprisonment for any officer or head of any government or public institution to which it applies, to willfully destroy any records kept in his custody or attempt to doctor or otherwise alter same before they are released to any person, entity or community applying for it.[9]

 It is also important to observe that access to public information under the FOIA is not absolute. As such, the Act prescribes circumstances when a public official or institution will be permitted, or is mandated to deny an applicant access to information.

Accordingly, where an applicant requests for information that may be injurious to the conduct of international affairs and the defence of Nigeria, the public official or institution to which the request is directed may decline to grant the request.[10] More so, a request under the Act may be rightfully refused where the information sought for borders on law enforcement and investigation that pertains to, is authorized by, or pursuant to the administration or enforcement of any Act, Law or Regulation.[11]Certain information requested for may also not be availed the applicant where such information is of a personal nature and is exempted under the Act.[12]

A public official or institution is also obligated to deny request for information that relates to trade secrets and commercial or financial information where such disclosure may cause harm to the interests of a third party;[13] or where such information sought can be reasonably expected to interfere with contracts or negotiations of a third party;[14] or information with regards to proposals and bids for any contract, grants, or agreement, and information which if disclosed is capable of frustrating procurement or give unfair advantage to any person.[15]

Exemptions with respect to information accessible by the public also include professional and privileged communications protected by law,[16] and information which contains course or research materials prepared by faculty members.[17]

A public institution may also deny an applicant’s request where information sought includes test questions, scoring keys or other examination data used to administer an academic examination or determine the qualifications of an application for a license or employment;[18] or architects’ and engineers’ plans for buildings not constructed in whole or in part with public funds and for buildings constructed with public funds, to the extent that disclosure would compromise security;[19] and library circulation and other records identifying library users with specific materials.[20]

The rights created for members of the public with respect to access to public information do not extend to certain documents and materials. That is to say all published materials or materials available for purchase by the public; library or museum materials made or acquired and preserved solely for public reference or exhibition purposes; or materials placed in the National Library, National Museum, or non-public section of the National Archives of the Federal Republic of Nigeria on behalf of any person or organization other than a government or public institution.[21]

It would seem that irrespective of all the exemptions to access to public information provided for under the FOIA, a public institution or official who a request for information is directed to under the Act is still obligated to afford such an applicant with the information sought as long as the public interest in disclosing the information outweighs whatever injury that disclosure would cause.[22]

It is also imperative to express that where an applicant requests for information which is partly constituted of information exempted from disclosure under the FOI Act, any part of the information sought which is not exempted shall be disclosed by the public institution or official.[23]

The beauty of access to information under the FOIA is that the framers of the law were at all times conscious of the fact that obtaining certain public information may prove to be very difficult for applicants especially as public institutions and officials may put obstacles on the road to access such information where the information may expose fraud, financial recklessness or other forms of illegality committed by a public institution or official. As such, it is a criminal offence to willfully destroy or doctor any public records requested for by an applicant;[24] and where a case of wrongful denial of access to information is established, the defaulting officer or institution is liable to conviction for a criminal offence.[25] More importantly, any applicant who has been denied access to any public information may apply to the High Court for judicial review.[26]

The FOIA also makes provision for the protection of public officials from any criminal or civil liabilities that may arise from the disclosure, in good faith, of any information pursuant to the Act.[27]

With the enactment of the FOIA, a subtle but extremely significant protection seems to have come into existence in favour of whistleblowers[28] who, without authorization, disclose to any person an information which is reasonably believed to show a violation of any law; mismanagement, gross waste of funds, fraud, and abuse of authority; or a substantial and specific danger to public health or safety.[29] This protection also extends to any person who receives such information disclosed by such a public official without authorization, even where the receiver further discloses the information, as no civil or criminal proceedings can lie against such a person.[30]

The hub of the FOIA is to make information in institutions where public funds are expended or in which the public has other forms of interests, easily available to the public. Under the FOIA therefore, private institutions that utilize public funds also fall under the definition of “public institution”.

Section 31 of the FOIA defines a public institution as “any legislative, executive, judicial, administrative or advisory body of the government, including boards, bureau, committees or commissions of the State: and any subsidiary body of those bodies including but not limited to committees and sub-committees which are supported in whole or in part by public-fund or which expends public fund and private bodies providing public services, performing public functions or utilizing public funds.” (Underlining mine for emphasis).

It therefore follows that institutions like the Nigerian Bar Association, Nigerian Medical Association, Nigerian Labour Congress etc, are public institutions under the FOIA as they provide public services or perform public functions or utilize public funds. The writer therefore commends the erudite and distinguished Professor of law- Ernest Ojukwu SAN for recently taking the bold step to make a freedom of information request to the NBA in respect of information that should be ordinarily available to all legal practitioners in Nigeria and indeed the general public.[31]If all Nigerians are on the qui vive and learn to probe the finances and workings of public institutions, the country would be better-off.



IS THE FREEDOM OF INFORMATION ACT, 2011 APPLICABLE TO STATES?

The Constitution of the Federal Republic of Nigeria (CFRN)[32] provides that the legislative powers of the Federal Republic of Nigeria shall be vested in the National Assembly, while that of a State of the Federation shall be in the House of Assembly of such a State.[33]

Accordingly the National Assembly is empowered by the grundnorm to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive or Concurrent Legislative List set out in Part I and Part II of the Second Schedule to the CFRN respectively, while a House of Assembly of a State has the imprimatur to legislate on all matters outside the Exclusive Legislative List, or those contained in the Concurrent Legislative List.[34]

It goes without saying therefore that both the National Assembly and State House of Assembly are competent to make legislations on matters as per the items contained in the Concurrent Legislative List. However, if any Law made by a House of Assembly is inconsistent with an Act of the National Assembly, the Act of the National Assembly shall prevail and the inconsistent Law of such a House of Assembly shall be null to the extent of its inconsistency- this is the core of the well established doctrine of covering the field. [35]

The FOIA was enacted by the National Assembly in line with its powers derived from the CFRN and particularly over the item in Paragraph 4, Part II of the Second Schedule to the CFRN. The said Paragraph of the Concurrent Legislative List provides that:

The National Assembly may make laws for the Federation or any part thereof with respect to archives and public records of the Federation.”

Worthy of note also is that Paragraph 5, Part II of the Second Schedule to the CFRN reads as follows:

“A House of Assembly may, subject to paragraph 4 hereof, make laws for that State or any part thereof with respect to archives and public records of the Government of the State.”

A number of commentators have postulated that by the provisions of the CFRN, the FOIA having been validly made by the National Assembly covers the field for all States in the Nigerian Federation, and it would be superfluous for any State to embark on a process of enacting any law in respect of matters covered by the FOIA as such a law would be subordinate to the FOIA, and indeed inoperative wherever it conflicts with the said Act. By this position, an applicant for information can direct his request to a State Government or any of its agencies and any of those public institutions will still be mandated to avail the applicant with the information sort under the FOIA. The Court of Appeal has also ruled that the FOIA applies to all States of the Federation.[36]

However, the above argument did not find favour with the Court of Appeal in EDOSACA v. Osakue & Ors (2018) LPELR-44157(CA) where, in an apparent volte-face, it held that:

“All said and done, a perusal of the Freedom of Information Act will not, in my humbly view, project the intention that it is meant to cover the field. In other words, it is nowhere indicated or prescribed in the whole gamut of the Act that it shall apply both to the central and State governments…This no doubt presupposes that the Freedom of Information Act, though a noble and worthwhile piece of legislation, does not have automatic application to the states as submitted by learned counsel for the Respondents. It therefore behoves any State interested in adopting the provisions of the Act in its territory to set the necessary machinery in motion for the enactment of a similar law by the House of Assembly of the State.” Per Oseji, JCA (Pp.21-24, paras. D-C).  

This writer’s opinion in respect of the Court of Appeal decision in EDOSACA v. Osakue & Ors (supra) is consistent with the dissenting view expressed by Justice Moore Aseimo Abraham Adumein JCA, especially as he held that the Freedom of Information Act, 2011 has already covered the field in respect of access by ‘any member of the public’ to public records, subject to the exceptions set out in the Act. He therefore invoked and relied on the doctrine of covering the field in giving his dissenting opinion to the extent that the FOIA is applicable to all States of the Federation.

We are hopeful that at least one of the conflicting decisions of the Court of Appeal will be tested at the Supreme Court so this issue would be laid to rest.



CONCLUSION:

With the advent of the FOIA, all Nigerians can request from any public institution, any statistics or information they require, and this demand must be attended to by the said institution. In fact any public official who denies affording any Nigerian with any public information requested for in a manner inconsistent with the Act risks being convicted for a criminal offence.

The Nigerian people have therefore been given a platform to contribute to the fight against corruption in government and its agencies. We can now engineer the change we want to see in our society via appraising the actions of public institutions and public servants, and blowing whistles where there seems to be any form of corruption of public office.

While we await the verdict of the apex Court on the issue of applicability of FOIA to States, perhaps it may be wise for all well-meaning Nigerians and non-profit organizations interested in securing accountability from government and its proxies to lobby State Houses of Assemblies across the Federation in a bid to ensure they adopt and enact the FOIA at their State levels so one can be certain the objective and spirit of passing the Act is not limited by any technical application of the law or misinterpretation of the extant laws.



Henry Chibuike Ugwu Esq.,






[1] Act No. 4 of 2011.
[2] Ibid, s. 2(3)(a)-(f). Worthy of note also is the fact that a person entitled to access information under the Act can institute proceedings in court to compel a public institution to publish all information required by section 2 and in the manner consistent with the Act. See s. 2(6) of the Act.
[3] Ibid, s. 2(4).
[4] Ibid, s. 3(4).
[5] Ibid, s. 3(3).
[6] Ibid, s. 4(4)(a) & (b).
[7] Ibid, s. 5.
[8] Ibid, s. 7(5).
[9] Ibid, s. 10.
[10] Ibid, s. 11(1).
[11] Ibid, s. 12.
[12]Ibid, s. 14. Personal information exempted under this section are information that include files and other particulars maintained with respect to clients, patients, residents, students, or other individuals receiving social, medical, educational, vocational, financial, supervisory or custodial care or services directly or indirectly from public institutions; personnel files and personal information maintained with respect to employees, appointees or elected officials of any public institution or applicants for such positions; files and personal information maintained with respect to any applicant, registrant or licensee by any government or public institution cooperating with or engaged in professional or occupational registration, licensure or discipline; information required of any tax payer in connection with the assessment or collection of any tax unless disclosure is otherwise requested by the statute; and information revealing the identity of persons who file complaints with or provide information to administrative, investigative, law enforcement or penal agencies on the commission of any crime. See generally, s. 14(1)(a)-(e) of the FOI Act, 2011.
[13] Ibid, s. 15(1)(a).
[14] Ibid, s. 15(1)(b).
[15] Ibid, s. 15(1)(c).
[16] Ibid, s. 16.
[17] Ibid, s. 17.
[18] Ibid, s. 19(1)(a).
[19] Ibid, s. 19(1)(b).
[20] Ibid, s. 19(1)(c).
[21] Ibid, s. 26(a)-(c).
[22] See sections 11(2), 12(2), 14(3), 15(4) and 19(2) of the FOI Act. It is however arguable that the exemptions provided in sections 16 & 17 of the Act are absolute (as there are no specific qualifications or limitations to the exemptions in the Act) and disclosure ought not to be made to any applicant requesting for information covered by those exemptions. The writer is however of the humbly view that the tenor of the FOI Act, 2011, suggests that the public should have access to all forms of public information, irrespective of the exemptions, so long it is in the overriding interest of the public to have such information disclosed.
[23] Ibid, s. 18.
[24] Ibid, s. 10.
[25] Ibid, s. 7(5).
[26] Ibid, s. 20. See also sections 21-25 of the FOI Act.
[27] Ibid, s. 27(1).
[28] A whistleblower is an employee who reports employer wrongdoing to a government or law enforcement agency. Definition culled from B.A. Garner, Black’s Law Dictionary, 9th edn., p. 1734.
[29] Ibid, s. 27(2)(a)-(c).
[30] Ibid, s. 27(3).
[32] Constitution of the Federal Republic of Nigeria, Cap. C23, Laws of the Federation of Nigeria, 2004.
[33] Ibid, s. 4(1) & (6).
[34] Ibid, s. 4(2), (4)(a), (7)(a) & (7)(b).
[35] Ibid, s. 4(5). See also AG Lagos State v. Eko Hotels LTD & Anor (2017) LPELR-43713(SC); INEC v. Musa (2003) LPELR-1515(SC); & Osun State Government v. Estisione H. Nigeria Limited & Anor (2012) LPELR-7936(CA).
[36] See Martins Alo v. Speaker, Ondo State House of Assembly & Anor (unreported) Appeal No: CA/AK/4/2017 available at http://www.dropbox.com/s/d8zzu85j54lknj9/ONDO%20STATE%20COURT%20OF%20APPEAL%20JUDGEMENT%20ON%20FOI%202018.pdf?dl=0 last accessed 01/11/2018. See also the following online newspaper publications- http://tvcnews.tv/2018/04/appeal-court-mandates-all-states-to-adhere-to-foi-act/ last accessed 01/11/2018 & http://www.thisdaylive.com/index.php/2018/04/25/acourt-brings-states-under-foi/?amp last accessed 01/11/2018.
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