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Understanding the FOIA 2011

10 SALIENT FEATURES OF THE FREEDOM OF INFORMATION ACT 2011 By Ene Enonche

 

Nigeria’s new Freedom of Information Act (FOIA), which was signed into law by President Goodluck Jonathan on the 28 May 2011, contains far reaching provisions capable of transforming the clandestine system of governance that has, until now, been the norm of Nigeria’s public institutions. The underlying philosophy of the Act is that public officers are custodians of a public trust on behalf of a population who have a right to know what they do. In particular, the FOIA promises to remove the aura of mystery and exclusion with which public servants clothe the ordinary operations of government and public institutions and manage public records and information. This brief article highlights the ten most significant provisions of the FOIA

1. The FOIA Supersedes the Official Secrets Act (OSA).

Section 2(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 in the custody or possession of any public official, agency or institution, however described.” This right is guaranteed “notwithstanding anything contained in any other Act, Law or Regulation.” This provision means that the FOIA is superior to and supersedes the Official Secrets Act. However, the FOIA does not have the same effect on the National Security Agencies Act because this Act is entrenched in the Constitution and the special procedure prescribed in Section 9(2) of the Constitution for its amendment was not applicable in this case.

2. Anyone Can Request for Information under the FOIA

The right granted by the FOIA can be exercised by anyone, irrespective of age, race, gender, etc to be granted access to public records and documents held in the custody of public institutions and private institutions carrying our public functions and services. This law also makes provision for persons with disabilities and educationally challenged people to access information; it provides that such persons can make their application through a third party. Interestingly, the Act also provides that nobody needs to demonstrate or explain any specific interest in the information or record being requested.

3. Response to Access Request Should be Given within 7 Days

Sections 4 & 5 of the FOIA provides that a public institution must grant access to a request for records or information within a time limit of seven days. The institution also has three days within which to transfer the request to another institution if it discovers that another institution holds custody of the said information/record been sort. In any situation where the information being requested is in a large number, the law provides an extension of an additional seven days. If it becomes necessary for a public institution to deny access to a request subject to the provisions of the Act a written notice must be given to the requester and an explanation stating the reasons/grounds why access is denied.

 

4. There Are Penalties for Destruction of Records


Section 10 of the Act sets precautions against the destruction or falsification of records and documents. Destruction of records is a felony under the Act punishable with a minimum penalty of one year imprisonment for the officer or head of public institution involved Section 7(5) of the Act also sets a fine of N500,000 payable on conviction by any institution or public officer who wrongfully denies access to information or records.

5. Fees May be charged to Recover Costs of Duplication and Transcription of Records

 

Access to information is free. However, S. 8 of the FOIA provides that “Fees shall be limited to standard charges for document duplication and transcription where necessary.”

6. Public Institutions Must Keep Proper Records

 

The FOIA places responsibilities on public institutions to ensure that they keep records 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, in addition to proactively publishing information about the institution by print, electronic and online sources. The Act also makes it mandatory that public institutions must train public officers on the provisions of the Act and the proper implementation of the Act.

7. Whistleblowers Will be Protected

 

Section 27 of the FOIA provides immunity for public officers against any form of civil or criminal proceeding for “disclosure in good faith of any information” pursuant to the FOIA. Thus, public officials who blow the whistle of failure of public duty, abuse of power, mismanagement of public resources or corruption are entitled to be protected against legal proceedings and from reprisals.

8. Some Categories of Information are Exempted from Disclosure

 

Sections 11-17 of the Act exempt certain information and records from public access. Such exempted information includes information the disclosure of which could damage the 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 and commercial or financial information. Information and records pertaining to professional privileges, journalism confidentiality, legal practitioner and health worker privileges and course materials are similarly exempted.

9. There is a Right of Access to Remedies, Including Judicial Review

 

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 in the FOIA.

 

10. The Federal Attorney-General Oversees Proper Implementation of the FOIA

 

The Act positions places ultimate responsibility and obligation for implementation of its provisions on the office of the Attorney-General of the Federation. By the first day of February of each year all public institutions must submit to the Attorney-General a report with 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 upholding the institutions’ decision to withhold information, the amount of fees collected to process applications and the number of staff devoted to processing applications for information.


10 MYTHS ABOUT THE FOI ACT By Chidi Anselm Odinkalu

 

President Goodluck Jonathan assented to the Freedom of Information Act (FOIA) on 28 May 2011. With that step, the Act entered into force. However, history and antecedents of the Act, its contents, the legislative and policy purpose served by it and several other issues around the Act remain the subject of often confusing speculation. We attempt below to address some of these.

MYTH NO. 1: THE FOIA IS A PRESS LAW

REALITY: The FOIA is designed to ensure equality 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 in the Act can be exercised by both individual and corporate persons. Hopefully, armed with such information, people can take the necessary steps to work with government, make informed decisions, and organise to hold government and public officials accountable. It is the hope, of course, 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. This cannot be achieved, however, unless public officials who have responsibility for implementing the law do so with good faith and professionalism. Companies and commercial actors will also, be able to utilize the law.

MYTH NO. 2: THE FOIA WAS “DOCTORED” AND “DILUTED” BY THE NATIONAL ASSEMBLY BEFORE ASSENT

REALITY: The House of Representatives passed the FoI Bill on 24 February 2011The Senate passed a separate version of the Bill on 16 March There were, in all twelve significant differences between the versions passed by the Senate and the House. These differences reflected what were ultimately fundamental philosophical differences between the both Chambers. The Senate version was based on a vision of the right of access to public information as a privilege; the House version treated this as a right. As is required by Parliamentary procedure, each chamber nominated six members into a Conference Committee to harmonize the versions. The conference Committee completed its work on 19 May and adopted a harmonized text based on a recognition of access to information as a right. This was the version finally adopted by both Chambers on 24 May. In effect, all the differences in both versions of the Bill were harmonized in favour of strengthening the Bill. Far from being watered down, the FOIA signed into law by the President was a stronger version than was adopted by either house.

MYTH NO. 3: THE FOIA IS HONORABLE ABIKE DABIRI’S LAW

REALITY: Nigeria’s FOIA was the product of collaboration between citizens, organized civic actors and government. It took 17 years from the origin of the first draft until its adoption. The FoI Bill was inspired by Edetaen Ojo, Executive Director of the Media Rights Agenda (MRA), assisted by the Nigerian Union of Journalists (NUJ) and the Civil Liberties Organisation (CLO). The first draft of the Bill was prepared in 1994 by Tunde Fagbohunlu, now a Senior Advocate of Nigeria (SAN) and litigation partner with Aluko & Oyebode assisted by the late Bankole Aluko (later also a SAN) and Chidi Anselm Odinkalu. Hon. Abike Dabiri-Erewa was one of the strongest supporters of the Bill in the House of Representatives of the 5th National Assembly and one of its sponsors in the last Parliament together with Ita Enang and Dino Melaye. She was, however, not the only one and was, in fact not a member of the National Assembly when the Bill first entered the National Assembly in June 1999. The historic lead sponsors of the Bill when it was first introduced in the House of Representatives in 1999 were the late Tony Anyanwu, Nduka Irabor, Jerry Ugokwe. They were actively supported by Victor Lar (now a Senator in the new Assembly), Nze Chidi Duru, Lad Ojomo and Uche Maduako, who were all members of the 4th Session of the National Assembly. Other strong supporters of the Bill in the House in the 5th and 6th National Assembly include: Henry Seriake Dickson, Professor (now Senator) Sola Adeyeye, Uche Onyeagucha, Haruna Yerima, Dr. Usman Bugaje, Ita Enang (now also a Senator) and former Speaker, Aminu Masari and his Deputy, Austin Opara. In the Senate, the late Tawar Wada and Victor Ndoma-Egba, SAN were principal sponsors. Others strong supporters over the years have included former Senate President, Ken Nnamani, Comrade Uche Chukwumerije, Inatimi Spiff, Ayogu Eze, and Julius Ucha.

MYTH NO. 4: THE FOIA IS A THREAT TO NATIONAL SECURITY

REALITY: The security of Nigeria is the collective responsibility of all who live in or come from it. Far from undermining national security, the FOIA potentially contributes to enhancing it by creating common stake holding in Nigeria, providing ample exemptions as well as through its provisions on whistle-blower protection in s. 27. The FOIA contains ample provisions on exemptions in section 11-19 and 26. Information exempted from disclosure under the Act includes in s. 11(1) “any information the disclosure of which may be injurious to the conduct of external affairs and the defence of the Federal Republic of Nigeria”, as well as, under s. 12(1), information the disclosure of which could obstruct ongoing criminal investigation and law enforcement.. This applies in particular to the Police. These provisions reinforce the National Security Agencies Act of 1986 which is entrenched in S. 315(5)(c) of the 1999 Constitution and can only be amended by the special provisions contained in s.9(2) of the Constitution. The National Security Agencies Act creates three agencies with special responsibilities for the protection of Nigeria’s security. These are:

(a) the Defence Intelligence Agency (DIA), for defence and military-related matters;
(b) National Intelligence Agency (NIA), for the protection of Nigeria’s external intelligence and security; and
(c) the State Security Service (SSS), for the protection of Nigeria’s internal security.

 

The National Security Adviser (NSA) is established by S. 4 of this law as the “co-ordinator of National Security”. S. 2(3)(a) of the National Security Agencies Act requires the SSS to ensure “the protection of all non-military classified matters concerning the internal security of Nigeria.” In effect, the provisions of the National Security Agencies Act will continue to apply to document classification, especially, to those documents or record which are classified as sensitive to national security.

 

MYTH NO. 5: WE NEED THE OFFICIAL SECRETS ACT

REALITY: The Official Secrets Act applicable in Nigeria was first adopted by Imperial Britain in 1911 and introduced into Nigeria as a colonial ordinance with the Amalgamation. Imperial Britain had no citizens; it had only subjects of the Imperium. Similarly, under colonialism, there were no citizens. Following the end of colonial rule, Nigeria was dominated for the most part by military rule which did not allow proper traditions of informed citizenship to take root. Under civilian rule founded on electoral legitimacy, an FOIA is the only way to guarantee that citizens have access to what their elected representatives and institutions are doing. This ensures that they are able to make informed decisions as to whether to retain, reform or change these. In Britain where the Official Secrets Act originated, it has been regularly reviewed and amended. It is now only applicable to personnel of the security and intelligence services. By contrast, the colonial era Official Secrets Act has never been reviewed or amended in Nigeria until now.

MYTH NO. 6: THE FOIA IS NOT APPLICABLE IN THE STATES

REALITY: The FOIA implements two separate constitutional mandates within the exclusive preserve of the National Assembly. First, under paragraph 3(c) of the 3rd Schedule, the Constitution empowers the National Assembly to prescribe terms and conditions for access to information about the assets declaration of public officers. Second, item 60(a) of the 2nd Schedule, containing the Exclusive Legislative List, empowers the National Assembly exclusively to make laws for the promotion and enforcement of the Fundamental Objectives and Directive Principles of State Policy in Chapter II of the Constitution. S. 14(2)(a) of the Constitution in this chapter affirms that “sovereignty belongs to the people of Nigeria from whom government derives its power and authority”, while S.14(2)(c) requires that “the participation by the people in their government shall be ensured…” The FOIA implements these constitutional responsibilities of the National Assembly. In addition, Item C. 4 of Part II in the 2nd Schedule of the Constitution containing the Concurrent Legislative List provides that “the National Assembly may make laws for the Federation or any part thereof with respect to the archives or public records of the Federation.” States are not necessarily precluded from making any laws with respect to public records but any such laws will be superseded by the Federal law if there is inconsistency capable of diminishing the rights in the federal law. In the absence of such State laws, the FOIA applies to States.

MYTH NO. 7: THE FOIA WILL INSPIRE INTOLERABLE BREACH OF PRIVACY

REALITY: S. 14 of the FOIA provides: “a public institution must deny an application for information that contains personal information”, and provides copiously for the categories of what are or could be considered to be personal information. However, in keeping with global best practice on access to information, this exemption is subject to a public interest override. In addition, the Act also protects from disclosure in S. 16, information that is the subject of legal practitioner/client privilege; health worker/patient privilege or journalism confidentiality privileges.

MYTH NO. 8: THE FOIA WILL ENHANCE MEDIA RASCALITY

 

REALITY: Rather than inspire media rascality, the FOIA is designed to prevent it. The previous regime where public information was the preserve of a select few in public office provided a ready excuse for lazy journalism and a reign of rumour. With a FOIA, the media and others desiring to publish information in the public record will have to exercise due diligence in looking for or verifying their information. At the minimum, they now have a professional duty to disclose what efforts they made to access or verify the relevant information. It is possible, for instance, that in civil proceedings based on violations of privacy or reputational rights, the courts may take account of failure to undertake such due diligence in computing remedies and awards. In a world of citizen publishing, the FOIA will hopefully also reduce the costs of news gathering and make it possible to sustain more credible media start-ups.

MYTH NO. 9: THERE IS NO AGENCY TO IMPLEMENT THE FOIA

 

REALITY: The FOIA applies to all public institutions or agencies as well as to “private bodies providing public services, performing public functions or utilizing public funds.” The meaning of this latter category will hopefully be clarified by practice and jurisprudence. Each public institution covered by the Act shall report annually to the Federal Attorney-General who has the power and obligation to supervise and report on to the National Assembly Annually on the implementation and operation of the Act. The Act confers considerable powers of judicial review on the courts. Arguably, the National Human Rights Commission could be a forum for enforcement of the rights conferred by the Act.

MYTH NO. 10: WE’RE NOT READY FOR FOIA

 

REALITY: Citizens who are ready enough to elect their representatives and send them to Abuja or to State or Local government capitals to do the public’s business must surely be ready enough to know what their elected representatives and institutions do when they get there!

 

ODINKALU, a member of the National Executive Committee of the Nigerian Bar Association (NBA), works with the Open Society Foundations (OSF)

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