FOIA Compliance Low in Nigeria

1 July 2015

This commentary was posted June 29, 2015, on the website of Center for Social Justice in Nigeria.

The Freedom of Information Act 2011, according to its long title, was made as an Act to make public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with public interest and the protection of personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorisation and establish procedures for the achievement of these purposes and for related matters.

The Act establishes a right of access to public information in the custody or possession of any public official, agency or institution howsoever described. It contains claw back clauses and general exemptions to the rule in matters such as international affairs and defence, law enforcement and investigation, personal and third party information, professional privileges, research materials and proprietary information. Thus, in these matters, information can be withheld by the public authorities and the applicant will be informed of the grounds upon which the disclosure is refused. But the Act also provides for severability of materials that are not exempted from materials containing these exemptions.

The National Assembly in its wisdom provides for a quick disposal of proceedings when a definite request for information is sent to the authorities. The public institution has seven days to respond to the request either by granting it or denying the same and stating reasons for denial in a written form or transfer the same to another public agency with greater interest in the subject matter. There is also provision for extension of time to grant the request if the documents are large in number or bulky. If the applicant is dissatisfied with the denial, he can approach the courts within 30 days of the public institution stating so and the Act specifically states that the application shall be heard and determined summarily.

Level of Compliance Weak

Despite these beautiful and very clear statements of the law, the level of compliance with the FoIA among the Ministries, Departments and Agencies is low.

In very clear and obvious cases, instead of granting the requested documents to applicants, many MDAs in clear violation of the law fail, refuse and neglect to do so. Pray, why would an agency that spends taxpayers’ money not make the details of the expenditure public and prefer to go to court to defend its refusal to disclose the details? Why would a minister refuse to disclose the details of persons who have defrauded the treasury and prefer a long drawn litigation? These public agencies would rather spend large sums of money hiring senior lawyers who charge very high fees to defend the indefensible. To add salt to the injury is the fact that the fat fees are also coming at the same taxpayers’ expense. At the end of the day, the public treasury bleeds while the society fails to get the benefits accruing from the proper and timely implementation of the law. This could not have been the intention of the legislature in making the law.

If the MDAs are pleading ignorance of the law or they are confused about what to do with a particular request, the Attorney-General of the Federation as the chief law officer of the nation should establish a summary procedure with the requisite manpower in his office for them to get legal advice on the propriety of releasing public documents. This should give the MDAs advice on request within the statutory timeframe to revert to the applicant. And where the leadership of the MDA fails to abide by the advice, the Attorney-General of the Federation should be in a position to advise government on a surcharge of the fees payable to lawyers from the remuneration of the Accounting Officer of the MDA, when there is clear evidence that the material sought by the applicant did not come under the exemptions permitted by the law.

These abuses of the judicial system would have been curtailed if the courts have leaned in favour of enforcing the clear provisions of Section 7 (8) of the FoIA which states that: “Where a case of wrongful denial of access is established, the defaulting officer or institution commits an offence and is liable on conviction to a fine of N50,000”. On several occasions, this particular relief has been refused by the courts in applications made by an Abuja-based civil society group, the Centre for Social Justice. However, none of the judgment has offered the reasons for declining to grant this relief.

Courts Tardy

Another major challenge for the enforcement of the FoIA is the tardiness of the courts. How can a matter that is stated by law to be heard and determined summarily be pending in the court for two years without commencement of hearing? One adjournment follows another and lawyers from the Ministry of Justice or defence counsel hired by the MDA take turns to frustrate the hearing of the application and presiding judges either encourage them or simply look the other way. In many instances, counsel for the applicant and respondent are in court and the judge adjourns the matter to a definite date and the date was even agreed to by lawyers on both sides. On the adjourned date, the lawyer to the respondent deliberately absents himself from the court and fails to write a letter or send a message to explain his absence from court. Instead of going on with the FoIA proceedings, the judge orders the counsel for the applicant to serve the respondent a hearing notice. And when the respondent’s counsel eventually appears at the later date, he makes no explanation and no one asks him to explain the reason for his absence. The court can now be held hostage by a counsel who is not ready to defend the case against his client! This cannot the justice intended by the FoIA, the rules of court or the notion of the average Nigerian of the concept of justice. The idea that summary proceedings can go on for two to three years is antithetical to the word “summary”. The proceedings could have been anything but not summary.

In this period of the change mantra, the MDAs must be made to understand that they cannot spend public resources and hold the same public in contempt. The information sought to be disclosed will in most instances facilitate god governance which will benefit the same person(s) seeking to block the disclosure. Bringing down the cost of governance includes blocking leakages such as these unnecessary litigation fees in matters which could have been disclosed without the rigour of litigation. Finally, the civil society needs to put pressure and beam searchlight on the implementation of this law through a long term strategic engagement of the judicial system and insist that it works as stated in the clear provisions of the law.

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