Freedom of Information Act (FOI), 2011; an Appraisal

First written and published in 2016

Abstract:
The Freedom of Information Act, herein designated as FOI Act can be described as the most landmark legislative enactment necessary for the preservation, promotion and progress of Nigeria’s democratic existence and sustenance. It contains 32 sections. This article summarily appraises it and its object for the purpose of enlightening citizens on how to best utilize the provisions of the Act to, inter alia, promote transparency, fight corruption and graft, protect certain classes of privileged communications and records, and acquire vital information or records possessed by government or public institutions.

Introduction:
Summarily, the FOI Act enshrines provisions which mandates public institutions and private institutions providing public services, to make available to applicants 'for public interest’; public records, documents and information (excluding those normally available to the public) and also protect serving public officials from adverse consequences for disclosing certain kinds of information which may be injurious to the institution or state, without appropriate authorisation. That is, notwithstanding any contradictory provision of the Penal Code, Criminal Code and the Official Secrets Act.

Hence, the Act incorporates the Whistle-blowers Act of the United States, where all things being equal, would have protected Edward Snowden for leaking 'Classified documents' information: but this is a discussion for another day for a legal battle exists as to where a whistle-blower leaks information threatening to national security. The Act also mandates public institutions to keep proper care and maintenance of all its records, documents and information about its activities, operations and business.

The Act contains two criminal provisions, i.e; offences under the Act and further spelt out the powers and functions of the Attorney-General of the Federation under the Act, i.e; to ensure the purpose of the provisions are fulfilled. 
Simply put, the FOI Act is a legislation which has consolidated the progress of democracy in Nigeria and has further expanded/guaranteed the people’s right to freedom of expression, press and information.

Notable Provisions:
The most notable provision under the Act is section 1 which guarantees the right of any person to access and request any information; whether or not contained in written form from any public institution, whether or not he has specific interest in the information he seeks. The section further provides the right of the person (applicant) to sue the public institution so as to compel it to comply with the provisions of the Act.

Section 4 of the Act provides that where information is applied for under the Act, the public institution shall, subject to the following underin, make the information available to the applicant; 
i. Quantity of information applied for.
ii. After necessary consultations are made by the institution. 
iii. After fees payable are paid by the applicant, which are limited to standard charges for document duplication and transcription, where necessary.

Under section 5, where an applicant erroneously makes an application for information to a public institution which has no/less interest in the matter, the public institution shall within 3 days but not more than 7 days, transfer the application to the appropriate public institution with sufficient interest in the matter and shall notify the applicant of such transfer.

The Act also provides that where the public institution considers that the application should be denied, the institution shall give written notice to the applicant that access to all or part of the information will not be granted, stating reasons/grounds for denial and the relevant section of the Act providing such denial; while also stating names, designation or records of each person responsible for denial of the application, and further indicating to the applicant whether or not the information sought exists.

The provisions of sections 7(5) & 10 creates offences under the Act. These include;
i. Wrongful denial of information by a public institution which attracts a penalty of Five hundred thousand Naira. 
ii. Wilful destruction/alteration of any record which attracts a penalty of one year imprisonment of the public officer or head in charge of making available such requested information, respectively.

Furthermore, the provisions of sections 11-19 provides for exceptions under the Act, i.e; information/records which may not be made available to an applicant. These include information relating to;

Conduct of international affairs and defence of the state.

Law enforcement or correctional/penal agencies/institutions.

Which if released, may deprive a person of a fair trial or impartial hearing.

If released, would unavoidably disclose a confidential source.

If released, may constitute an invasion of personal privacy (unless consent is given).

If released, would obstruct an ongoing criminal investigation.

If released, may facilitate the commission of an offence.

Relating to the assessment or collection of any tax.

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.

Trade secrets & commercial or financial information obtained from a person or business where such are proprietary, privileged or confidential; or where such disclosure would harm the interest of a third-party.

Legal practitioner-client privilege

Health workers-client privilege

Journalism confidentiality privileges

Information containing course/research materials by faculty members.

Test questions, scoring keys and other examination data used to administer an academic examination or determine the qualification of an application for a license or employment.

Architects and engineers' plans for building which of disclosed might compromise security.

Library circulation and other records identifying library users with specific materials.

Section 20-23 of the Act provides for Judicial (court) review of a matter under the Act within 30 days after the public institution denies or is deemed to have denied the application, or within such further time as the court may either before or after the expiration of the 30 days fix or allow, be heard summarily. And no information shall herein be withheld from the court; which has a duty not to disclose such information while exercising its judicial powers of determination in its proceedings. 
Under section 24, the burden of proving that the public institution is authorised to deny such application or any part thereof, is on the institution concerned.

Another crucial provision of the FOI Act, 2011, is section 27 which protects whistle-blowers in public service, i.e; persons who leaks/discloses vital information of the public institution without authority, from legal consequences where he discloses such in good-faith. 
The public officer shall be protected under the Act, if the following constitutes grounds for his disclosure;
Where he believes the information to show:
i. a violation of any law, rule or regulation. 
ii. Mismanagement, gross waste of funds, fraud and abuse of authority. 
iii. Substantial and specifications danger to public health or safety, notwithstanding that such information was not disclosed pursuant to the provisions of the Act. 
This section further protects persons receiving and further disclosing the information from civil and criminal proceedings.

Under section 28, information in custody as classified document within the context of the Official Secrets Act, may be disclosed pursuant to an application under the FOI Act, if such a document is not a type listed in sections 11-21 of the FOI Act.

The powers and functions of the Attorney-General of the Federation under the Act are listed under section 29. Specifically, section 29(6) provides that the AGF shall in his oversight responsibility under the Act, ensure that all institutions to which the Act applies comply with the provisions of the Act.

Consequently, the existence, integrity and growth of Nigeria’s democracy has not only been preserved and consolidated by the singular promulgation of the FOI Act, 2011, but has empowered ordinary citizens and reassured Nigerians of the nation's commitment to transparency, accountability and the rule of law.

It is, however, rather unfortunate that the Act has not been entirely adhered to by some public institutions like TETFUND, Code of Conduct Bureau, etc. It is my hope that as mandated by the Act, the AGF would act in the interest of democracy and citizenry to ensure sufficient adherence to the letters of the Act.

In the same vein, the Act has not been effectively utilized by citizens, journalists and CSOs to inquire and acquire from appropriate government institutions; the complete records and recommendations of some vital documents such as the government budgetary expenditures, audited financial records, asset declarations forms of public officials, the exact amount of looted funds recovered since 2015 and how they have been utilized, official general election result of 1993, official records of the Nigerian civil war (1967–1970), official records of military coups and administrations, etc. The masses have a right to know exactly what their taxes are being expended on and that the government is acting in their best interest (and not of a few). They need to hold their governments accountable using this legislation.

The Act should, therefore, be utilized pragmatically, to ask the right questions; questions necessary for civic engagement, accountability, transparency, and enhancement of our democratic machinery. Citizens must mobilise to hold their leaders accountable; and advocate for the tenets of open government; transparency and accountability. Information is power; and the masses must be empowered.

Connected Development - CODE is at the forefront of organizations in Nigeria’s civic space that has been instrumental in utilising the FOI Act to track and verify government appropriations and expenditures around the country, most notably, through its "Follow the Money" initiative which recently won the United Nations "mobiliser of the year" award.

And to conclude, I call on all public institutions to create;

Also, I call on disingenuous state governments who have refused to adhere to the provisions of the Act or domesticate it, to cease and desist from sabotaging our democratic growth and space. That is the Court of Appeal’s position in the 2018 case of Martins Alor (a journalist) V. Ondo State House of Assembly & Auditor General of Ondo State.

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Law and Development | Transitional Justice. Staff Attorney, Connected Development [CODE].

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Charles E. Uche Esq.

Charles E. Uche Esq.

Law and Development | Transitional Justice. Staff Attorney, Connected Development [CODE].

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