Issue #25   •   Quarter 3/4 Edition   •   December 2018

 

by Patience Yusuf (Public Affairs Department)

Background

The Freedom of Information Act was a product of collaboration between citizens, organised civic actors and government. It took seventeen years from the origin of its first draft until its adoption. The first draft of the bill was prepared by Tunde Fagbohunlu (SAN) in 1994.The Freedom of Information Act 2011 was passed by both chambers of the 6th National Assembly on 24th May 2011 and assented by President Goodluck Ebele Jonathan on 28th May, 2011.

The FoI Act supersedes the Official Secrets Act (OSA), originally enacted in 1911, which forbade the unauthorized transmission, obtaining, reproduction, or retention of any classified matter. The Act applies not only to public institutions but also to private organizations providing public services, performing public functions or utilizing public funds.

The underlying philosophy of the Act is that public servants are custodians of a public trust on behalf of a population who have a right to know what they do. In particular, the FoI Act promises to remove the aura of mystery and exclusion with which public servants cloak the ordinary operations of government and public institutions. It also seeks to change the manner in which public records and information are managed. The Act builds on an assumption of openness, by placing on those who wish to keep public information away from the people, the onus of justifying why they have to do so. If fully implemented, the FoI Act will transform quite fundamentally the way in which government conducts business and the perception of the people towards the government. The Act is a marked shift from the OSA which promotes secrecy and criminalises the disclosure of information.

The salient features of the FoI Act, 2011

The Act affords everyone regardless of tribe, age, creed, a right of access to information or records held by public institutions and relevant private entities, irrespective of the form in which such information or records are kept. Primacy is granted to the provisions of the Freedom of Information Act in instances of conflict with other laws.

• Section 1 (1) of the Act establishes “the right of any person to access or request information, whether or not contained in any written form, which is the custody or possession of any public official, agency or institution.......”  This right is “guaranteed, notwithstanding anything contained in any other Act, Law or Regulation.”

The Act also provides that nobody needs to demonstrate or explain any specific interest in the information or record being requested. Request for information or records are to be processed within seven (7) days. This is seven days in total and not seven working days. There are also three additional days given in which to transfer requests to another agency if necessary. If the information is large, the law allows an extension of a further seven days. If the request is to be denied, then written notice must be given stating reasons why access was denied.

The FoI Act, 2011 penalizes the wrongful denial of information, destruction, falsification or alteration of information or records, or any attempt to do any of these things.

• Section 10 of the Act sets precautions against the destruction and falsification of records and documents. Destruction of records is a felony under the Act punishable with a minimum penalty of 1 year imprisonment for the officer or head of the institution. There is also a fine of =N=500,000 (five hundred thousand naira) payable for wrongfully denying access.

The FoI Act places responsibility on public institutions to ensure that they keep records and information about their activities, operations and businesses. It also requires them to maintain properly organised information and records to facilitate easy access to such information. The Act encourages public institutions and government agencies to be proactive about publishing information. The Act also makes it mandatory that public institutions must train public officers on the provisions of the Act and the proper implementations of the Act.

In an effort to encourage proactive disclosure, the law affords protection to whistleblowers. Any public officials who blow the whistle of failure of public duty, abuse of power and mismanagement of funds etc are entitled to be protected against legal proceedings and from reprisals.

• Section 27 of the FOI Act provides immunity for public officers against any form of civil or criminal proceedings for “disclosure in good faith” of any information pursuant to the FOIA.

The Act allows everyone the right to initiate proceedings in court to compel any public institution to comply with the provisions of the Act. It also provides a thirty day window within which anyone who has been denied access by any public institution can bring the matter to court for a judicial review.The National Human Rights Commission would also, under the laws applicable to it, have a role in ensuring proper implementation of the rights contained in the FoI Act.

The Act provides a range of eight (8) issue based exemptions to the public’s right to know. However, these eight exemptions are subject to a three part test which is:

  1. The issue must relate to one of the eight exemptions listed in the Act.
  2. The harm that the disclosure of the said record or information would cause to the specific exemption must be clearly shown.
  3. Justification must be provided to show that the harm which the disclosure of the said information or record would cause to the specific exemption clearly outweighs the public interest in the information or record being publicly made available.

Section 11-17 of the Act states that the following categories of information are exempt from disclosure:

• Information that could damage conduct of international affairs and defence of Nigeria

• Information on administrative law enforcement proceedings and investigation

• Personal information

• Third party information such as trade secrets or financial information

• Legal practitioner and health worker privileges

An analysis of what is expected of Ministries, Departments and Agencies of Government (MDAs) under the FoI Act, 2011.

Public institutions have obligations and duties that are well grounded within the parameters of the law. These include but are not limited to, the following:

Information Disclosure Obligations

• Section 2 of the Act makes it mandatory for all government institutions to proactively publish specific categories of information about the institution “through various means, including print, electronic and online source, and at the offices of the public institutions”

Information Management

• The FOI Act provides that public institutions shall ensure that it records and keeps information about its activities, operations and businesses. It is the responsibility of each organisation to properly organise and maintain all information in its custody in a manner that facilitates public access to such information. Public organisations need to set up an information management system that facilitates easy retrieval of information for timely disposal of requests for information, and would allow for compliance with the requirement of proactive disclosure through electronic and online means. The ideal situation would be a virtual library but effort can be made to properly manage and catalogue records in a paper based library.

Setting up an Information Department/ Designation of Information Officers

• The Act implies under Section 2 that all public institutions need to designate and train an officer or officers to whom an application for information under the Act shall be sent as well as having a FoI department in the institution. The title and address of the officer(s) should be proactively disclosed to facilitate the process of application for access.

Staff Training

• Section 13 of the Act states that government institutions must ensure the provision of appropriate training for its officials on the processes that would facilitate the publics’ right to access information or records as well as for the overall effective implementation of this Act. Training should be timely, periodical, flexible, and dynamic.

Reporting Obligations

• The Act places ultimate responsibility and obligation for implementation of its provisions on the office of the Attorney General of the Federation (AGF). Under Section 29(1) of the Act, by February 1 each year all public institutions must submit to the AGF an annual report on how they have complied with the provisions of the Act. The report must include the number of determinations made and reasons given by the institution for denial of information where applicable, the number of appeals made by applicants, the decisions of the court, the fees collected for processing applications and the number of staff devoted to processing applications for information.

Budget Implications

• The requisite training strategy and institutional framework for implementation of the FoI Act has budgetary implications on public organizations; there needs to be continuous capacity building and reorientation of public service officials on the foundational principles, objectives, goals and benefits of the open government regime that the FoI Act seeks to entrench. The budgetary implications should not be a deterrent from compliance as non compliance also carries sanctions and cost implications under the Act.

 

Bottlenecks Impeding the Implementation of the Freedom of Information Act

Resistance to Transparency in Government

There is an extant culture of secrecy in the public service. This is deep seated and is premised on what has been the primacy of existing laws such as the Official Secrets Act, Section 97 of the Criminal Code and the Civil Service Rules and Regulations amongst others. This has created an environment in which there is a general resistance to sharing information. People need to be taught to be more open and there needs to be more transparency in the conduct of government business. Any continued resistance to an open government will lead to poor implementation of the FOI Act. There will also be a challenge in changing the negative perception that exists within government circles that those requesting for information on the activities of the government and its functionaries are doing so with ill motives.

Difficulty in Accessing Information

There is difficulty in accessing information, even within organisations, between government agencies, a situation that is exacerbated when dealing with organisations outside the government. Lack of effective coordination and information sharing both within and between various MDAs could hinder the speedy identification and tracking of information requested for by members of the public within the time frame stipulated under the Act.

Poor Data Management

Nigeria has a history of poor record keeping. The inadequacy of the record creation, record keeping, organisation and maintenance protocols and processes that exist in public service will be a hindrance to implementation of the Act.

Lack of clarity in Information Security Classification

There needs to be a clearer process in information security classification. At the moment there is blanket coverage of all information in government institutions and information is not catalogues into categories such as confidential, highly confidential, secret, etc

Benefits of the FoI Act If Properly Implemented

The Freedom of Information Act was designed to ensure quality of access to and participation in government.The main objective of the law is to ensure that every person who desires to know how government operates can do so with minimum effort and diligence. The rights of the Act can be exercised by both individuals and corporations.

It is the hope that the law will improve the standards of media reporting and investigation, reduce reckless rumours and improve due diligence in verifying facts which are part of the public record.

Nothing can improve citizen confidence and participation in governance as well as reduce corruption more than a full regime of access to information. The FoI Act is one piece of legislation that significantly changes the relationship between the government and the governed by re-ordering the existing state of affairs from one where members of the public where discouraged from enquiring into how public officials managed the publics’ wealth on behalf of the people whom they were supposed to be serving, to one in which government agencies are encouraged to be proactive in sharing information.

The Act, if fully implemented would facilitate the process of introducing good governance practices within the public sector. This would in turn enhance the ability of the government to ensure the provision of critical public infrastructure through the more efficient management of public resources and by plugging existing leaks in the system.

The Freedom of Information Act makes a positive contribution toward addressing the needs of vulnerable and marginalised groups. The Act is one law that recognizes the right of people with physical disabilities.

• Section 3(3) (4) provides that persons with disabilities and educationally challenged persons can apply through a third party or by an oral application in which case the public officer would have to reduce the request into writing and provide a copy of the written request to the applicant. The Act makes provision for the specific information needs of the illiterate and the physically challenged.

Another benefit of the FoI Act would be the provision of employment. The renewed responsibility for information management, record keeping and ancillary processes that are necessary to facilitate compliance with the FoI Act, by both public and relevant private institutions, provides employment opportunities for the teeming masses of unemployed youth as well as professionals of various calling. It would also open up the opportunity for a new set of entrepreneurial activities in areas of management information systems and processes in such institutions.

Conclusion

Adopting a comprehensive FoI Act is a major step towards entrenching an open government, one in which Nigerians can have an active voice in the process of governance and policy decisions. This can only happen with full and effective implementation of the law. The success of the Freedom of Information Act is dependent on a partnership between the government, the media, civil society and the private sector. The general populace would need to be less resistance to openness as continued resistance would severely impede the effectiveness of the law. Opening up government would greatly enhance the lives of Nigerians and can only bring about positive changes. Transparency in government would streamline government processes, improve bureaucratic efficiency, reduce corruption and support economic growth and foreign investments.