Freedom of Information Act as Editors’ Tool for Promoting Transparency and Accountability By Edetaen Ojo Executive Director Media Rights Agenda

edet@mediarightsagenda.org

What is Accountability?

• The essence of accountability is that when a person or institution is given the responsibility to hold, use or dispose of resources that do not belong to them, such person or institution has a duty to account to the owner(s) of the resources on what they did with the resources & how.
• Applying this simple principle in our context, the Government has been given the responsibility to hold, use & dispose of resources that belong to the people of Nigeria!
• What does this mean in the context of accountability?
• The duty of those given responsibilities of public office to account is or should be:

Þ    A moral code

Þ    A political necessity

Þ    A democratic culture & tradition

Þ    A legal obligation; and

Þ    A constitutional requirement

• Unfortunately, this is not something that comes naturally to many of our political actors & public office holders

The Role of the Media

• It is therefore incumbent on citizens to hold the Government & other powerful actors in society accountable.
• Government in this context includes all institutions of governance, elected & appointed public office holders, civil servants, etc., across all 3 arms & 3 tiers of Government.
• The media frequently plays & is expected to play this role on behalf of citizens & the wider society.
• Section 22 of the 1999 Constitution (as amended) specifically gives the Media this responsibility.

1999 Constitution (as Amended)

• Section 22 of the Constitution provides that:

       “The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this Chapter (Chapter Two) and uphold the responsibility and accountability of the Government to the people.”

• Two duties are given to the Media here, namely:

Þ    To uphold the fundamental objectives contained in Chapter 2 of the Constitution; and

Þ    Uphold the responsibility & accountability of the Government accountable to the people.

• So what are the “fundamental objectives” that the Media are charged to uphold?
• Chapter 2 of the Constitution outlines the principles which SHOULD underpin governance in Nigeria
• In order words, Chapter 2 articulates the guiding principles on how every Government in Nigeria should “hold, use or dispose of resources” over which it has responsibility, including how it uses STATE POWER.
• The role (AND DUTY) of the media, in the context of Section 22 of the Constitution, include:

Þ    To ENSURE that the Government is guided by &   applying these principles in governing

Þ    To constantly highlight & thereby remind the Government of its responsibility to the people – both those in Chapter 2 & elsewhere

Þ    To hold the Government accountable to the   people about how it is living up to its   responsibilities & performing its functions.

• What are the accountability issues for Government?
• The accountability issues include:
• “…the security and welfare of the people shall be the primary purpose of government”

   – Section 14(2)(b) of the Constitution

• “The State social order is founded on ideals of Freedom, Equality and Justice”

   – Section 17(1) of the Constitution

• “In furtherance of the social order every citizen shall have equality of rights, obligations and opportunities before the law”

 – Section 17(2)(a) of the Constitution

• “the sanctity of the human person shall be recognised and human dignity shall be maintained and enhanced”

 – Section 17(2)(b) of the Constitution

• “The State shall direct its policy towards ensuring that all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment”

 – Section 17(3) of the Constitution

• The State shall foster a feeling of belonging & of involvement among the various people of the Federation, to the end that loyalty to the nation shall override sectional loyalties.

       – Section 15(4) of the Constitution

• The State shall abolish all corrupt practices & abuse of power.

  – Section 15(5) of the Constitution

• These are some of the issues that the media are required by the Constitution to hold the Government accountable to.

How can Media Play Their Role?

• Government can be overwhelming for a journalist or even a media organization that is trying to hold Government accountable to the people.
• In seeking to give effect to this constitutional provision, journalists & media organizations need to see it as applicable to each & every institution or agency of government
• The goal should always be to hold each distinct institution or agency of Government accountable.
• The overall performance of the Government can then be aggregated from the performances of the different institutions & agencies.

Power of Media to Ensure Accountability

• The media have no formal oversight powers in relation to the Government
• The media cannot sanction Government officials for misconduct or abuse of power or corruption. 
• The power of the media lies in its ability to shine the light on an issue, i.e. place the issue in the public domain & provide a platform for public debates & discussions of the issue.
• “Without publicity, all other checks are fruitless: in comparison of publicity, all other checks are of small account.  It is to publicity, more than to everything else put together, that the English system of procedure owes its being the least bad system as yet extant, instead of being the worst.”
• – Jeremy Bentham, English philosopher, jurist, and social reformer

FOI Act as an Accountability Tool

• FOI Laws are designed essentially as a check against corruption & to hold public authorities accountable to citizens.
• An FOI Law is therefore one of the most important ways of achieving transparency & accountability in governance.
• Such transparency & accountability can in turn serve as a disincentive for corrupt practices or help to reveal corruption when it happens or is present.
• The FOI Act gives members of the public, including journalists & editors, a right of access to all government-held records & information, subject to certain exemptions.
• It can therefore be used to promote transparency & accountability in any sector & on any issue that is not exempted.
• The FOI Act does not ordinarily apply to private bodies (e.g. private companies, NGOs, associations, etc.)
• However, the scope of the Act is extremely broad & could be extended to even private bodies.
• Under Section 2(7) & Section 31 of the Act, it can be applied to such bodies if any of the following conditions exists:

Þ    Where the private company/entity performs a public function;

Þ    Where the private company/entity provides a public service;

Þ    Where the private company/entity utilizes public funds.

• In February 2022, the Court of Appeal in Lagos held that a “private body or company would be as accountable as a public institution or body under the Act if it has provided any form of public services, or performed any form of public function or utilized public funds.”

       – Judgment delivered on February 23, 2022, in Appeal   No. CA/L/621/2015 in Coscharis Motors Ltd v. EIE

• The implication of the decision is that any company that does contracts with government or provides any service to government for which it is paid with public funds is subject to the FOI Act
• The FOI Act is not a Media Law or made for journalists alone.
• But the Act can be a deadly tool in the hands of a journalist who is determined to promote transparency & accountability.
• As Editors sitting atop the news structures of your respective media organizations, you can direct & oversee the deployment of this weapon to promote transparency & accountability with great effect.
• One journalist who has used an FOI Law with deadly effect is the multiple award-winning British-American journalist, Heather Brooke

FOI & Heather Brooke

• Heather Brooke is probably the best known media user of an FOI Law.
• With dual citizenship
  (U.S & U.K)
• She worked as a political reporter & a crime reporter in the U.S. before she moved to the U.K. in the early 1990s where she now lives & works as a freelance journalist & lecturer.
• Since UK’s FOI Act came into force in 2005, Heather Brooke has filed over 300 FOI requests to numerous public institutions.
• She writes for all the major U.K. national newspapers.
• Her investigation into the expense accounts of U.K. MPs, using the FOI Act, led in 2009 to one of the biggest political scandals in British history & forced the resignation of the Speaker of the U.K. House of Commons.
• Heather Brooke is now a visiting professor at City University’s Department of Journalism in London.
• She has published 3 books, namely:

Þ    Your Right to Know (2006)

Þ    The Silent State (2010), and

Þ    The Revolution Will Be Digitised (2011).

• She has won numerous awards for her journalism work, including the Judges’ Prize at the 2010 British Press Awards, the FOI Award from Investigative Reporters & Editors, and a Freedom of Expression Award from Index on Censorship.

FOI Act as an Accountability Tool

• An FOI Law is a particularly good tool for obtaining documentary evidence, which cannot be easily refuted. 
• It can be used to obtain a range of public records & documents, which are critical & invaluable assets for a reporter.
• Reliance on documentary evidence in reporting, particularly public records & documents, enhances the credibility of journalistic reporting.
• Therefore, using the FOI Act to go after such documentary evidence should be part of our routine.
• Documents & records are particularly important because they help you to:

Þ    Get accurate & reliable facts on any issue or event;

Þ    Bring facts & events that were previously unknown to light;

Þ    Correctly report events that may have escaped public attention when they occurred or where the full facts were not known; and

Þ    Verify information that you may have obtained from anonymous sources, etc. 

Deploying the FOI Act in Reporting

• The FOI Act is only a tool
• Like all other tools, the result you get from using it depends on what you do with the tool & how well you are able to use it.
• The FOI Act will enable editors & the reporters working under them to obtain much of the information that they seek or are interested in
• But that will be only if they are willing to utilize the tool & are able to deploy it effectively
• There are 2 ways by which we can access information held by public institutions under the FOI Act.
• The right of members of the public to submit requests & receive the information is the most well-known feature of the FOI Act.
• This is because the primary function of an FOI Law is to provide procedures by which members of the public can request information from public institutions.
• The second major way by which we can access information is when it is made available to the public on the initiative of the public institutions themselves, without anyone submitting a request for the information.
• This practice is known as proactive disclosure or proactive publication.
• Section 2 of the FOI Act places an obligation on every public institution to publish, on an automatic or proactive basis, a range of information that are of public importance.
• If all or most public institutions comply with this requirement & publish the categories of information that they are required to proactively publish under Section 2(3)(a)-(f), this would automatically make available to the public, including the media, a huge amount of information that can aid or improve reporting as well as promote transparency & accountability.
• We would have access to these information with no more than the effort it would take us, for instance, to log on to the website of each of these ministries, departments & agencies of government.
• Some of the information that every public institution is required to publish proactively include the following:
• Þ    a description of the organization & its responsibilities, including details of the   programmes & functions of each division, branch & department;   
• Þ    a list of all classes of records under its control in sufficient detail to facilitate the exercise of the right to information.
• documents containing factual reports, inspection reports & studies, whether prepared by or for the institution;
• Þ    documents containing information relating to the receipt or expenditure of public or other funds of the institution;
• Þ    documents containing the names, salaries & titles & dates of employment of all employees & officers of the institution;
• documents containing the name of every  official & the final records of voting in all proceedings of the institution;
• Þ    a list of files containing applications for any contract, permit, grants, licenses or agreement;
• Þ    a list of reports, documents, studies, or publications prepared by independent contractors for the institution;
• Unfortunately, the vast majority of public institutions are not complying
• And no single public institution is publishing ALL the categories of information that the Section requires them to proactively disclose.
• They are illegally depriving you & the wider public of access to these information & violating the Law with impunity.
• So media practitioners & other members of the public do not readily have access to these information held by various public institutions.
• What can the Media do in the circumstance?
• The Media can & should hold the public institutions accountable for these breaches of the Act.
• By consistently highlighting, naming & shaming the public institutions that are not complying & detailing their non-compliance, the Media can pressure them to comply.
• The Media can also pressure those with the authority to enforce compliance to take action.
• Members of the Media community can also make FOI requests to public institutions or relevant private bodies to find out:

Þ    Whether public institutions & officials / private      bodies covered by the Act are complying with or enforcing applicable rules, standards, regulations, codes, or other requirements

Þ    Such requirements could cover areas like conducting periodic audits, submission of audit reports, consumer protection, public safety, food hygiene, pollution control, planning, issuances of permits, etc.

• The Media can use the FOI Act to make requests for information about:

Þ    Reports of statutory or other audits that a government agency conducted

Þ    Results of tests carried out or analyses   conducted in many different sectors

Þ    Results of inspections carried out on products, goods & services

Þ    Frequency of visits made to business or other premises by oversight or regulatory bodies

The number of complaints reported to or received by an oversight or regulatory body

Þ    Reports on & outcomes of actions taken on    complaints

Þ    Copies of minutes of meetings where decisions were made by a public institution; etc.

• Such information can help to establish patterns of behaviour, breaches of rules, regulations, laws, etc.
• This can also provide material & additional opportunities to ensure accountability through reporting.
• This approach is particularly relevant for regulatory bodies & agencies, which are established to oversee specific sectors with the aim of ensuring compliance with rules, codes, standards, etc. or bringing about the realization of certain development goals.
• There are dozens of such regulatory bodies & agencies in Nigeria covering a wide range of sectors.
• However, most of the regulatory bodies are often ignored by the Media & are not held accountable
• They, therefore, often do not perform their functions.

Regulatory bodies & agencies include:

Þ    National Agency For Food And Drug Administration And Control (NAFDAC)

Þ    Nigerian Institute Of Town Planners

Þ    Medical Laboratory Council Of Nigeria

Þ    Corporate Affairs Commission (CAC)

Þ    Central Bank Of Nigeria (CBN)

Þ    Department of Petroleum Resources (DPR)

•        Revenue Mobilization Allocation And Fiscal Commission (RMAFC)

Þ    Directorate Of Road Traffic Services (VIO)

Standards Organisation Of Nigeria (SON)

Þ    Nigerian Communication Commission (NCC)

Þ    Consumer Protection Council (CPC)

Þ    Town Planners Registration Council Of   Nigeria

Þ    Council For The Regulation Of Engineering Nigeria (COREN)

Þ    National Lottery Regulatory Commission

Þ    Librarians’ Registration Council Of Nigeria

Þ    Internet Exchange Point Of Nigeria, etc.

•        Independent National Electoral Commission (INEC)
•        Nigerian Copyright Commission

Þ    Bureau of Public Procurement (BPP)

Þ    Nigerian Electricity Regulatory Commission

Þ    Dental Technology Board

Þ    Code of Conduct Bureau (CCB)

Þ    Medical And Dental Council Of Nigeria

Þ    Nursery and Mid-Wifery Council of Nigeria

Þ    Universal Primary Education Board

Þ    Securities and Exchange Commission (SEC)

Þ    Nigerian Shippers Council

Deploying the FOI Act in Reporting

• Do we know the functions of each of these agencies?
• Do the staff & officials of these agencies themselves know their functions?
• Are they performing their statutory functions?
• If so, how are they performing these functions?
• Are they achieving the desired results?
• How are their activities/performance impacting the society or the country?
• Many public institutions have a mandate to deliver public services to citizens in different sectors, including areas like health, water, education, agriculture, electricity, roads, etc.
• We can use the Act to ensure transparency in their operations & prevent corruption
• We can also use the FOI Act to ensure the provision of or delivery of such public services by government to the people.
• FOI requests can also be used to:

Þ    Target the expense claims or reports of public officials for a variety of activities, including travels, meetings, medical expenses, etc.

Þ    Monitor processes for contract awards, the value of contracts awarded, the standards of      performance of the contracts, etc.

Þ    Check the revenues & expenditures of public institutions, as well as to monitor leakages, etc.

• The FOI Act can be used to obtain data from public institutions
• Such data can then analysed to establish patterns of behaviour or detect breaches of laws, rules, regulations, codes of conduct, etc.
• The Act can also be used to obtain the results or findings of unpublished probes, investigations or enquiries, etc.
• Such efforts will lead to better performance & contribute to promoting good governance.

In Conclusion

• The FOI Act is a powerful tool for ensuring transparency & accountability.
• Any citizen, CSOs of all descriptions, journalists, media organizations & other actors in different sectors of society can use the Act for this purpose.
• The media has a particularly critical role to play in ensuring transparency & accountability
• Let us take advantage of the FOI Act to fulfil this responsibility & ensure good governance.