Nigerian FOI Law Not Effectively Implemented

26 May 2016

Below is the concluding chapter from the April 2016 report by the Carter Center on its examination of selected agencies in Uganda using the Center’s Access to Information Legislation Implementation Assessment Tool, which is described in the report.

Nigeria adopted a Freedom of Information law on May 28, 2011 when former President Goodluck Jonathan signed the FOI Bill passed by the National Assembly into law. Nearly five years on, the law is not being fully or effectively implemented. A number of reasons can be deduced for this situation. For example, there remains a pervasive culture of secrecy in government business which is compounded by the oath of secrecy that civil servants swear to upon employment under the existing Official Secrets Act. Another reason for the ineffective implementation of the FOI Act is the low level of usage of the legislation by the public. Citizens are not making requests for information because of the belief that civil servants are not ready to abide by the right of access to information granted to citizens, and this in turns leads to inadequate implementation as there is limited demand.

This assessment, however, strives to determine the readiness – capacity, extent and quality – of public institutions’ to implement the Freedom of Information Act. Beginning as a pilot phase for Nigeria, it involved a set of questions administered to seven federal government agencies namely: Ministry of Water Resources, Ministry of Justice, Ministry of Finance, Ministry of Education, Ministry of Health, Nigerian Electricity Regulatory Commission, and the National Bureau of Statistics. In implementing the project, MRA staff conducted desk research as well as field research, using the Access to Information Implementation Assessment Tool developed by The Carter Center. The field research involved MRA personnel visiting the seven selected public institutions to administer a standardized questionnaire.

The general finding from the research showed that the agencies are institutionally not prepared to effectively implement the FOI Act. Virtually none of the procedures, processes and facilities that these institutions are expected to put in place to enhance the effective implementation of the law were present. All of them are yet to comply with their obligation to proactively publish certain kinds of information as required by the Act, their websites do not contain the relevant information, and are largely obsolete. The websites appear to be used mainly as a public relations tool rather than as a platform to inform the citizenry and the world at large. At best, public institutions which regularly update their websites and have FOI “portals” upload just skeletal information that do not serve the purpose of assuring relevant and timely information in accord with the principles of the FOI Act. While it may seem though that the Ministry of Justice and the Nigerian Electricity Regulatory Commission have made some strides in proactive disclosure through their web portal, these efforts are far cries from the comprehensive categories of information and records that the FOI Act requires to be proactively published.

Although some of the agencies have FOI Units or Committees, there is no division of labor among the members of the committees or members of the units. They are selected to represent each of the departments of the agencies and not to address specific issues or special areas in the implementation of the Act. Aside from the Ministry of Justice, the other public institutions assessed do not meet to discuss, review or strategize on implementing the law. It seems the units/committees were set up to abide by a circular issued by the Head of the Civil Service of the Federation directing each agency to constitute a FOI committee, rather than to truly advance the implementation and effectiveness of the FOI Act.

The FOI Act clearly states that government institutions should designate FOI officers to whom requests for information should be directed and who should deal with such communications, the findings show in a number of aspects this is not the case. While most public institutions have appointed senior personnel (deputy director and above) as FOI Officers, ostensibly to ensure that it reduces the line of consultation before information/records are released, all mails irrespective of their content pass through the registry of the agency’s CEO who minutes on it before any official can treat it. It is only on the directive of the CEO that the correspondences are managed. This additional layer of review slows down the request and response process; FOI requests do not receive any special treatment but instead become one more victim to official bottlenecks and bureaucracies.

It also was discovered that some of the designated FOI Officers were not agency core staff but on deployment from other ministries, such as the Ministry of Information or the Ministry of Justice. This raises the potential for the FOI specialized official can be recalled and reassigned to another ministry by their original ministry, thus frustrating the seamless implementation of the law as officials who have been appointed and trained on the FOI functions and responsibilities may be redeployed anytime.

Overall, training remains a weakness in the implementation of the FOI law. Other than the Ministry of Justice’s FOI unit, which said it had received training locally and internationally, the rest of the agencies assessed have only received basic training on the FOI Act and its implementation. The FOI officer in theMinistry of Health said he had received an additional training on record management, but he does not perform that function: he is a lawyer deployed from the Ministry of Justice and is responsible for the legal service of the Ministry to which was added the function of FOI officer.

It was observed during the field research that only the Ministry of Justice has clearly marked and designated offices for FOI. In the other agencies, FOI is domiciled and handled as an added responsibility by the media/media, legal services or Planning, Research and Statistics (PRS) Departments. Moreover, the Ministry of Justice was the sole agency in which the receptionist even know that an FOI Unit existed; and thus where to direct citizens to make their requests.

One way of denying citizens access to the information that they have requested is by not responding to the request, which the FOI Act refers to as “deemed denial.” In the course of the field research, this practice of ignoring requests for information was a repeated occurrence and it was only because of the doggedness to obtain the information in order to implement the project that ensured the researcher was able to interview officials in all the selected agencies. It is unlikely that ordinary citizens or organizations who are not carrying out a funded project and who reside outside of the nation’s Federal Capital Territory will be able to muster the time and resources to do the kind of repeated follow-ups that was required to be able to obtain information required under this project.

Nearly five years into the implementation of the FOI Act, public institutions do not have budgets allocated for the implementation of the Act. What this means is that where the Act is implemented, it is only through the agencies diversion of monies from other activities or services.

Another attitude observed with public officials was that they prefer to err on the side of caution by denying access to information, as it was difficult getting supporting documents from even the FOI officers, including in cases where they claimed that the documents were available. At the Ministries of Justice and Health as well as the Nigerian Electricity Regulatory Commission, the public officials refused to give a copy of some documents which they claimed were available saying they were not for public consumption. Moreover, only a handful of the agencies are submitting the annual report of their implementation of the FOI Act to the office of the Attorney General of the Federation, as required by the law.

The state of record keeping in most of Nigeria’s public institutions is not such that will enhance the easy implementation of the FOI Act. Agencies have not started to digitize their records and information. Modern equipment available to the agencies are not used to collate, store and retrieve agencies’ documents but more for the day to day running of these agencies. Documents and records generated before the widespread use of computers in Nigeria’s public institutions are not digitized and electronically stored, making it more difficult for timely retrieval and to assure appropriate preservation.

The oversight responsibility of the FOI Act rests with the Federal Attorney-General and not an independent information commissioner. An AttorneyGeneral in Nigeria is a political appointee; who combines the office with that of the Minister of Justice. Being saddled with the oversight responsibility for the implementation of the FOI Act adds a third office, making the work of the AttorneyGeneral not only burdensome but susceptible to political interference.

Recommendations

In advancing full and effective implementation of the Freedom of Information Act, the government should ensure that public institutions are equipped with increased capacities to meet their responsibilities under the law, including training, sensitization, and instituting necessary measures and structures to facilitate implementation of the law.

Public institutions with FOI units or committees should consider division of labor among the members of the committee/units to promote improved implementation as well as identifying all the requirements under thelaw and sharing the duties among themselves. Moreover, government agencies should be encouraged to make budgetary provisions for the implementation of the FOI Act.

Records keeping remains a perennial weakness. Agencies will need to develop policies for digital records and make efforts to digitize their information to ensure that the law is effectively implemented.

Finally, there should be a sanctions mechanism to motivate public institutions to comply with their obligations under the FOI Act, particularly the proactive publication obligations and the obligation to submit annual implementation reports.

While FOI implementation is slowly growing, much still needs to be done. A strong directive from the Office of the Head of Service or the Presidency is needed to shake the ministries from their inertia or, alternatively, a sanctions mechanism for failure to comply with the provisions of the FOI Act should be considered.

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