Understanding The Freedom of Information Act

UNDERSTANDING THE FREEDOM OF INFORMATION ACT, 2011

Kehinde Emmanuel Oladele^[1]

Introduction

The words in the explanatory memorandum to the FOI[2] Act apparently portrays it’s purposes which is to availing freely public records and information, effectuating public access to public records and information, protecting public records to the extent consistent with public interest, protecting serving public officers from adverse consequences for disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes.Contradictorily, the position is evident in practice in Nigeria as not realistic nor obtainable. This writer howeverexposes the readers of this analysisto the objectives of FOI Act, and accordingly sensitize the Nigeria populace on the urgent need to utilize and enforce the provisions of the Act.

Nigeria citizens Access to Records

Section (1) of the act is crystal clear when it states that notwithstanding anything which is contained in any other Act, law or regulation, 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 howsoever described, is established[3] this is a statutory backing for citizens to request for any needful information in Nigeria without any impediment. It went further to state that applicant under the actis not mandated to demonstrate any specific interest in the information being applied for whatsoever[4]and any person right t has the right to information under the Act and same shall have the right to institute proceedings in the Court to compel any public institution to comply with the Act’s provision, this provision is not in contradiction to section 6 of the Act[5]. Meanwhile, an applicant who has been denied access to information, may apply to the Court for a review of the matter 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[6].

Expectations from public institutions As to Information

public institution[7] are to ensure that it records and keeps information about all its activities, operations and businesses[8]this should be done in a proper manner, its organization and maintenance of all information in its custody in order to facilitate public access to such information[9]section 3 of the act expressly and emphatically provides the information required to be published by the public institutions, and same are reproduced below for clarity in accordance with section 4 of the Act :

(a) a description of the organization and responsibilities of the institution including details of the programs and functions of each division, branch and department of the institution;

(b) a list of all –

(i) classes of records under the control of the institution in sufficient detail to facilitate the exercise of the right to information under this Act, and

(ii) manuals used by employees of the institution in administering or carrying out any of the programs or activities of the institution;

(c) a description of documents containing final opinions including concurring and dissenting opinions as well as orders made in the adjudication of cases;

(d) documents containing –

(i) substantive rules of the institution,

(ii) statements and interpretations of policy which have been adopted by the institution,

(iii) final planning policies, recommendations, and decisions;

(iv) factual reports, inspection reports, and studies whether prepared by or for the institution;

(v) information relating to the receipt or expenditure of public or other funds of the institution;

(vi) the names, salaries, titles, and dates of employment of all employees and officers of the institution;

(vii) the rights of the state, public institutions, or of any private person(s);

(viii) the name of every official and the final records of voting in all proceedings of the institution;

(e) a list of-

(i) files containing applications for any contract, permit, grants, licenses or agreements,

(ii) reports, documents, studies, or publications prepared by independent contractors for the institution, and

(iii) materials containing information relating to any grant or contract made by or between the institution and another public institution or private organization;

(f) the title and address of the appropriate officer of the institution to whom an application for information under this Act shall be sent, provided that the failure of any public institution to publish any information under this subsection shall not prejudicially affect the public’s right of access to information in the custody of such public institution.

Thus, the informationas expanded in the precedingsection 3 is necessary and must be widely disseminated and made readily available to the public through various means like in print, electronic and online sources, or at the offices of such public institutions[10]. Periodic update and review of informationpublished should be immediately done whenever changes occur[11]. Significantly, section 9(1) outline that every government or public institution must ensure that it keeps every information or record about the institution’s operations, personnel, activities and other relevant or related information or records.It is therefore expected that the government or public institution ensure adequate provision for appropriate training of its officials on the public’s right to access to information or records held by government or public institutions, for the effective implementation [12].

The Process of Requesting for Access to Records And when Access is Refuted

In section 3 subsection (1),an application for access to a record or information should be made in accordance with section 1 and its noteworthy that any information or record applied for under the Act does not exist in print but can by regulation be produced from a machine, and shall be deemed to be record under the control of the government or public institution[13]. The right is not exclusively for the lettered, an Illiterate or disabled applicant by reason of their illiteracy or disability, where one is unable to make an application for access to information or record, the application can be made through a third party[14]. Furthermore, authorized official of a government or public institution to whom an applicant makes an oral application for information or record, shall reduce the application into writing in the manner prescribed under subsection (1) by giving notice of the extension stating whether the extension falls under the circumstances set out which notice shall contain a statement that the applicant has aright to have the decision to extend the time limit reviewed by the Court[15] by virtue of section 21, the court shall hear and determine summarily the application.

However, in the event that the government or public institution refuses to give access to a record or information applied for under this Act, or a part thereof, the institution shall state in the notice given to the applicant the grounds for the refusal, the specific provision of this Act that it relates to and that the applicant has a right to challenge the decision refusing access and have it reviewed by a Court[16]. The Act still reiterate that the notification of denial of any application for information or records shall state the names, designation and signature, of each person responsible for the denial of such application[17].additionally, the government or public institution shall be required to indicate whether record exists[18]. The moment the government or public institution fails to give access to information or record applied for under this Actwithin the time limit set out in the Act, the institution shallbe deemed to have refused to give access[19], the Act without confusion provides that after a case of wrongful denial of access is established, the defaulting officer or institution is said to have committed an offence and liable on conviction to a fine of N500,000[20].

Further Analyses: Fee Charges and Falsification of Records)

During the process of duplication of document, and transcription, the fee of such doing would be limited to standard charges[21]. The Act provides that it is a criminal offence punishable on conviction by the Court with a minimum of 1-year imprisonment for any officer or head of any government or public institution that willfully destroy any records kept in his custody or attempt to doctor or otherwise alter same before they are released to any person, entity or community applying for it[22].

AN EXPOSITON ON THE EXEMPTIONS

Exemption of international affairs and defense[23].

Public institution may deny an application for any information the disclosure of which may be injurious to the conduct of international affairs and the defence of the Federal Republic of Nigeria. However, such an application for information shall not be denied where the public interest in disclosing the information outweighs or defeats the gravity of whatever injury that its disclosure would cause.

Exemption of law enforcement and investigation[24].

A public institution may deny an application for any information which contains a records compiled by any public institution for administrative enforcement proceedings and by any law enforcement or correctional agency for law enforcement purposes or for internal matters of a public institution, but only to the extent that the disclosure would -(i) interfere with pending or actual and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency,(ii) interfere with pending administrative enforcement proceedings conducted by any public institution,(iii) deprive a person of a fair trial or an impartial hearing,(iv) unavoidably disclose the identity of a confidential source,(v) constitute an invasion of personal privacy under section 15 , except, where the interest of the public would be better served by having such record being made available, this exemption to disclosure shall not apply, and(vi) obstruct an ongoing criminal investigation; and information the disclosure of which could reasonably be expected to be injurious to the security of penal institutions.Despite the crystal provisions above stated, an application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury that disclosure would cause.Specifically, and for emphasis, public institution may deny an application for information that could reasonably be expected to facilitate the commission of an offence.

Exemption of personal information

In line with subsection (2) of section 14 of the Act; a public institution is expected to deny an application for information that contains personal information which may include -(a) files and personal information maintained with respect to clients, patients, residents, students, or other individuals receiving social, medical, educational, vocational, financial, supervisory or custodial care or services directly or indirectly from public institutions;(b) personnel files and personal information maintained with respect to employees, appointees or elected officials of any public institution or applicants for such positions;(c) files and personal information maintained with respect to any applicant, registrant or licensee by any government or public institution cooperating with or engaged in professional or occupational registration, licensure or discipline;(d) information required of any tax payer in connection with the assessment or collection of any tax unless disclosure is otherwise requested by the statute; and(e) information 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. This is in accordance with section 37 of the constitution of the federal Republic Of Nigeria.

However, the exemption to this is that, public institution shall disclose any information that contains personal information on these two grounds:

Where the individual to whom it relates consents to the disclosure; or
Where the information is publicly available.

Emphatically, subsection 3 buttressedthat wheresuch disclosure of information referred to would be in the public interest, and the public interest of the disclosure of clearly outweighs the protection of the privacy of the individual to whom such information relates, the public institution to whom a request for disclosure is made shall disclose such information subject to section 14 (2).

Exemption of third party[25]

A public institution shall deny an application for information that contains trade secrets and commercial or financial information obtained information from a person or business where such trade secrets or information are proprietary, privileged or confidential, or where disclosure of such trade secrets or information may cause harm to the interests of the third party provided that nothing in the subsection shall be construed as preventing a person or business from consenting to disclosure

Additionally, public institution is under must to disclose any information described if that disclosure would be in the public interest as it relates to public health, public safety or protection of the environment and, if the public interest in the disclosure clearly outweighs in importance any financial loss or gain to, or prejudice to, the competitive position of or interference with contractual or other negotiation of a third party.

Exemption of professional or other privileges conferred by law[26].

An application for information that is subject to the following privileges may be denied by public institution, the privileges could be in regard of legal practitioner-client privilege; health workers-client privilege;journalism confidentiality privileges; and any other professional privileges conferred by an Act.Furthermore,information which contains course or research materials prepared by faculty members could be denied. In the circumstance that an application is made to a public institution for information which is exempted from disclosure by virtue of the Act, the institution shall disclose any part of the information that does not contain such exempted information[27].

The inherent power of theCourt to access information.

Notwithstanding anything contrary in the Evidence Act[28], or any regulation made under it, the Court may, in the course of any proceeding before it arising from an application under section 20examine any information that is under the control of a public institution, and no such information may be withheld from the Court on any ground[29]. Precautions shall be taken by the Court when appropriate, in receiving representations ex parte and conducting hearings in camera to avoid the disclosure by the Court or any person of any information[30]. And the burden of establishing that the public institution is authorized to deny an application for information or part thereof shall be on the public institution concerned in any proceeding.

The Court has the power to order the institution to disclose the information or part thereof to the applicant when it is determined that:

(a) that the institution is not authorized to deny the application for information;

(b) that the institution is so authorized, but the Court nevertheless determines that the institution does not have reasonable grounds on which to deny the application; or

(c) where the Court makes a finding that the interest of the public in having the record being made available is greater and more vital than the interest being served if the application is denied, in whatever circumstance.

Note

It is necessary to highlight that the Act does not apply to published material or material available for purchase by the public or library no abundance of museum material made or acquired and preserved solely for public reference or exhibition purposes; it doesnt apply to material placed in the National Library, National Museum or nonpublic section of the National Archives of the Federal Republic of Nigeria on behalf of any person or organization other than a government or public institution.

Safeguarding the Public officers

The provisions of the Criminal Code, Penal Code, the Official of Secrets Act, or any other enactment, shall not lead to the commencement of civil or criminal proceedings or lie it against an officer of any public institution, or against any person acting on behalf of a public institution, and no proceedings shall lie against such persons thereof, for the disclosure in good faith of any information, or any part thereof pursuant to the Act or any consequences that flow from that disclosure, or for the failure to give any notice required under this Act, if care is taken to give the required notice[31]. Subsection 2 of this section provides that the above stated laws shall not prejudicially affect any public officer which he discloses without authorization and believes to be inter alia:

(a) a violation of any law, rule or regulation;

(b) mismanagement, gross waste of funds, fraud, and abuse of authority; or

(c) a substantial and specific danger to public health or safety notwithstanding that such information was not disclosed pursuant to the provision of this Act.

And finally, no civil or criminal proceedings shall lie against any person receiving the information or further disclosing it.

Conclusion

While it is settled that the enactment of freedom of information Act, 2011 is purported to systematically availed Nigeriansthe understanding ofright to information with regulated procedure as outlined in this analysis. Nonetheless, the exercise of dissecting theAct by this writer is to thoroughly acquaint the readers to practically enforce their access to information. Incontrovertibly, varying circumstance abounds where the member of the society perhaps in ignorance of the act are denied of vital information, but with this simplified analysis necessary steps could be taken by Nigerians.

Thanks for going through this post; Understanding The Freedom of Information Act

[1]Undergraduate Law Student, Abu Zaria: oladelekeindeemmanuel2405@gmail.com: +2347033702316

[2] FOI is an acronym for freedom of information Act, 2011

[3] Section 1(1) of the Act.

[4] Section 1(2)

[5] Section 1(3)

[6] Section 20

[7] Section 7 explicitly explainedPublic institutions as all authorities whether executive, legislative or judicial agencies, ministries, and extra-ministerial departments of the government, together with all corporations established by law and all companies in which government has a controlling interest, and private companies utilizing public funds, providing public services or performing public functions.

[8] Section 2(1)

[9] Section 2(2)

[10] Section 4

[11] Section 5

[12] Section 13

[13] Section 3(2)

[14] Section 3(3)

[15] Section 3(4)

[16] Section 7(1)

[17] Section 7(2)

[18] Section 7(3)

[19] Ibid. subsection 4

[20]Ibid. Subsection 5

[21] Section 8

[22] Section 10

[23] Section 11(1)(2)

[24] Section 12(1)(2)(3)(4)

[25] Section 15

[26] Section 16 and17

[27]Section 18

[28] Evidence Act,2011

[29] Section 22

[30] Section 23

[31] Section 27