Approach & methodology:
Basics & history
Basics
“Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law.” (Ojo, 2011)
Basics & history
The Explanatory memorandum
This Act makes 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 the public interest and the protection of personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes.
Interpretation of memorandum
The supply side
The Principles
PRINCIPLE 1. MAXIMUM DISCLOSURE
Freedom of information legislation should be guided by the principle of maximum disclosure
PRINCIPLE 2. OBLIGATION TO PUBLISH
Public bodies should be under an obligation to publish key
Information. Freedom of information implies not only that public
bodies accede to requests for information but also that they publish
and disseminate widely documents of significant public interest
PRINCIPLE 3. PROMOTION OF OPEN GOVERNMENT
PRINCIPLE 4. LIMITED SCOPE OF EXCEPTIONS
PRINCIPLE 5. PROCESSES TO FACILITATE ACCESS
PRINCIPLE 6. COSTS
PRINCIPLE 7. OPEN MEETINGS
PRINCIPLE 8. DISCLOSURE TAKES PRECEDENCE
PRINCIPLE 9. PROTECTION FOR WHISTLEBLOWERS
Nature of obligations
Public Institutions
The definition
2. (7) Public institutions are 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
The 9 categories of obligations
1.Record keeping/maintenance
2. (1) A public institution shall ensure that it records and keeps information about all its activities, operations and businesses.
(2) A public institution shall ensure the proper organization and
maintenance of all information in its custody in a manner that
facilitates public access to such information.
9. (1) Every government or public institution shall ensure that it keeps every information or record about the institution’s operations,
personnel, activities and other relevant or related information or
records.
(2) Every government or public institution shall ensure the proper organization and maintenance of all information or record in its custody, in a manner that facilitates public access to such
information or record under this Act.
10. It is a criminal offence punishable on conviction by the Court with a minimum of 1 year imprisonment for any officer or the head of any government or public institution to which this Act applies to willfully destroy any records kept in his custody or attempts to doctor or otherwise alter same before they are released to any person, entity or community applying for it.
2. Proactive Disclosure/Publication
(2. (3) A public institution shall cause to be published in accordance with subsection (4) of this section, the following information-
(a) a description of the organization and responsibilities of the
institution including details of the programmes 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 programmes 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;
Proactive Disclosure
(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 agreement,
(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.
4) A public institution shall ensure that information referred to in this section is widely disseminated and made readily available to members of the public through various means, including print, electronic and online sources, and at the offices of such public institutions.
(5) A public institution shall update and review information required to be published under this section periodically, and immediately whenever changes occur.
(6) Any person entitled to the right of access conferred by this Act shall have the right to institute proceedings in the Court to compel any public institution to comply with the provisions of this section.
4. Where information is applied for under this Act, the public institution to which the application is made shall, subject to sections 6, 7, and 8 of this Act, within 7 days after the application is received –
(a) make the information available to the applicant;
(b) where the public institution considers that the application should be denied, the institution shall give written notice to the applicant that access to all or part of the information will not be granted, stating reasons for the denial, and the section of this Act under which the denial is made.
14.
(2) A public institution shall disclose any information that contains personal information if –
(a) the individual to whom it relates consents to the disclosure; or
(b) the information is publicly available.
28.
(1) The fact that any information in the custody of a public institution is kept by that institution under security classification or is classified document within the meaning of the Official Secrets Act does not preclude it from being disclosed pursuant to an application for disclosure thereof under the provisions of this Act, but in every case the public institution to which the application is made shall decide whether such information is of a type referred to in sections 11, 12, 14,15, 16, 17, 19, 20 or 21 of this Act.
(2) If the public institution to which the application in subsection (1) is made, decides that such information is not a type mentioned in the sections referred to in subsection (1) access to such information shall be given to the applicant.
(3) If the public institution, to which the application mentioned in
subsection (1) is made decides that such information is of a type mentioned in sections referred to in subsection (1), he shall give notice to the applicant.
Notice to applicant in case of refusal
7.
(1) Where 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.
(2) A 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.
(3) The government or public institution shall be required to indicate under subsection (1) of this section whether the information or record exists.
(4) Where the government or public institution fails to give access to information or record applied for under this Act or part thereof within the time limit set out in this Act, the institution shall, for the purposes of this Act, be deemed to have refused to give access.
(5) 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 N500,000.00
28.
(3) If the public institution, to which the application mentioned in subsection (1) is made decides that such information is of a type mentioned in sections referred to in subsection (1), he shall give notice to the applicant.
4. Deference to public interest in exempt cases
(1) A 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.
(2) Notwithstanding subsection (1), an application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury disclosure would cause.
Deference to public interest
12.
(1) A public institution may deny an application for any information which contains—
(a) Records complied 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 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 of this Act, 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
(b) Information the disclosure of which could reasonably be expected to be injurious to the security of penal institutions:
(2) Notwithstanding anything contained in this section, an application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury that disclosure would cause.
15. (1) A public institution shall deny an application for information that contains –
(a) trade secrets and commercial or financial information obtained 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 contained in this subsection shall be construed as preventing a person or business from consenting to disclosure;
(b) Information the disclosure of which could reasonably be expected to interfere with the contractual or other negotiations of a third party; and
(c) Proposal and bids for any contract, grants, or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person.
Deference
2) A public institution shall, notwithstanding subsection (1), deny disclosure of a part of a record if that part contains the result or product of environmental testing carried out by or on behalf of a public institution.
(3) Where the public institution discloses information, or a part thereof, that contains the results of a product or environmental testing, the institution shall at the same time as the information or part thereof is disclosed provide the applicant with a written explanation of the methods used in conducting the test.
(4) A public institution shall disclose any information described in subsection (1) of this section 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.
Deference to public interest
19. (1) A public institution may deny an application for information that contains information pertaining to –
(a) test questions, scoring keys and other examination data used to administer an academic examination or determine the qualifications of an application for a license or employment;
(b) architects’ and engineers’ plans for buildings not constructed in whole or in part with public funds and for buildings constructed with public funds, to the extent that disclosure would compromise security; and
(c) Library circulation and other records identifying library users with specific materials:
(2) Notwithstanding anything contained in this section, an
application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury that disclosure would cause.
5. Transfer of request
(1) Where a public institution receives an application for access to information, and the institution is of the view that another public institution has greater interest in the information, the institution to which the application is made may within 3 days but not later than 7 days after the application is received, transfer the application, and if necessary, the information, to the other public institution, in which case, the institution transferring the application shall give written notice of the transfer to the applicant, which notice shall contain a statement informing the applicant that such decision to transfer the application can be reviewed by the Court.
(2) Where an application is transferred under subsection (1), the application shall be deemed to have been made to the public institution to which it was transferred on the day the public institution received it
Capacity building – training
13.
Every government or public institution must ensure the provision of appropriate training for its officials on the public’s right to access to information or records held by government or public institutions, as provided for in this Act and for the effective implementation of this Act.
Assistance to the disadvantaged
3.
(1) An application for access to a record or information under this Act shall be made in accordance with section 1 of this Act.
(2) For the purpose of this Act, any information or record applied for under this Act that does not exist in print but can by regulation be produced from a machine, normally used by the government or public institution shall be deemed to be record under the control of the government or public institution.
(3) Illiterate or disabled applicants who by virtue of their illiteracy or disability are unable to make an application for access to information or record in accordance with the provisions of subsection (1) of this section, may make that application through a third party.
(4) An 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) of this section and shall provide a copy of the written application to the applicant.
8. Legal enforcement of right under Act
20. Any applicant who has been denied access to information, or a part thereof 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.
21. An application made under section 20 shall be heard and determined summarily.
22. Notwithstanding anything contrary contained in the Evidence Act, or any regulation made under it, the Court may, in the course of any proceedings before it arising from an application under section 20 of this Act, examine any information to which this Act applies, that is under the control of a public institution, and no such information may be withheld from the court on any ground.
23. In any proceedings before the Court arising from an application under section 20, the Court shall take precaution, including when appropriate, receiving representations ex parte and conducting hearings in camera to avoid the disclosure by the Court or any person of any information or other material on a basis of which any public institution will be authorized to disclose the information applied for.
24. In any proceedings before the Court arising from an application under section 20, 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.
Legal enforcement
25.
(1) Where a public institution denies an application for information, or a part thereof on the basis of a provision of this Act, the Court shall order the institution to disclose the information or part thereof to the applicant —
(a) if the Court determined that the institution is not authorized to deny the application for information;
(b) where the institution is so authorized, but the Court
nevertheless determines that the institution does not have
reasonable grounds on which to deny the application;
(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.
(2) Any order the Court makes in pursuance of this section may be made subject to such conditions as the Court deems appropriate.
9. Oversight & submission of report
29. (1) On or before February 1 of each year, each public institution shall submit to the Attorney-General of the Federation a report which shall cover the preceding fiscal year and which shall include—
(a) the number of determinations made by the Public Institution not to comply with applications for information made to such public institution and the reasons for such determinations;
(b) the number of appeals made by persons under this Act, and the reason for the action upon each appeal that results in a denial of information;
(c) a description of whether a court has upheld the decision of the public institution to withhold information under such circumstances and a concise description of the scope of any information withheld;
(d) the number of applications for information pending before the public institution as of October 31 of the preceding year and the median number of days that such application had been pending before the public institution as of that date;
(e) the number or applications for information received by the public institution and the number of applications which the public institution processed;
f) the median number of days taken by the public institution to process different types of application for information;
Oversight & reporting
(g) the total amount of fees collected by the public institution to process such applications; and
(h) the number of full-time staff of the public institution devoted to processing applications for information, and the total amount expended by the public institution for processing such applications.
(2) Each public institution shall make such report available to the public, among other means, by computer and telecommunications, or if computer and telecommunications means have not been established by the Government or Public Institution, by other electronic means.
(3) The Attorney-General shall make each report, which has been submitted to him, available to the public in hard copies, online and also at a single electronic access point.
(4) The Attorney General shall notify the Chairman and ranking minority member of the Committee on Government Reform Oversight of the House of Representatives and the Chairman and ranking minority member of the Committees on Government Affairs and the Judiciary of the Senate, not later than April of the year in which each such report is issued, of the existence of such report and make it available to them in hard copies as well as by electronic means.
(5) The Attorney-General shall develop reporting and performance guidelines in connection with reports required by this section and may establish additional requirements for such reports as the Attorney-General determines may be useful.
(6) The Attorney General shall in his oversight responsibility under this Act ensure that all institutions to which this Act applies comply with the provisions of the Act.
(7) The Attorney-General shall submit to the National Assembly an annual report on or before April 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this Act, the exemption involved in each case, the disposition of such cases, and the cost, fees, and penalties assessed.
(8) Such report shall also include detailed description of the efforts taken by the Ministry of Justice to encourage all government or public institutions to comply with this Act.
(9) For purposes of this section, the term –
(a) “Government” includes any executive department, military department, government corporation, government controlled corporation, or other establishment in the executive branch of the government (including the Executive Office of the President), or any other arm of government, independent or regulatory government agency or public institution; and
(b) “information” means any term used in this Act in reference to information or record which includes any information that would be held by a government or public institution and information subject to the requirements of this Act, when maintained by any public institution in any format, including electronic format.
Demand side
This is basically about the right of citizens to make
FOIA requests
Section
(1) Notwithstanding anything 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.
(2) An applicant under this Act needs not demonstrate any specific interest in the information being applied for.
(3) Any person entitled to the right to information under this Act, shall have the right to institute proceedings in the Court to compel any public institution to comply with the provisions of this Act.
Demand
The other areas
Complete exemption
(a) Legal Practitioner-client privilege;
(b) Health Workers-client privilege;
(c) Journalism confidentiality privileges; and
(d) Any other professional privileges conferred by an Act.
17. A public institution may deny an application for information which contains course or research materials prepared by faculty members.
Others
(a) Published material or material available for purchase by the public;
(b) Library or museum material made or acquired and preserved solely for public reference or exhibition purposes; or
(c) Material placed in the National Library, National Museum or non-public section of the National Archives of the Federal Republic of Nigeria on behalf of any person or organization other than a government and/or public institution.
Protection
Protection
(2) Nothing contained in the Criminal Code or the Official Secrets Act shall prejudicially affect any public officer who, without authorization, discloses to any person, any information which he reasonably believes to show –
(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.
(3) No civil or criminal proceedings shall lie against any person receiving the information or further disclosing it.
Others
Power of the judiciary
22. Notwithstanding anything contrary contained in the Evidence Act, or any regulation made under it, the Court may, in the course of any proceedings before it arising from an application under section 20 of this Act, examine any information to which this Act applies, that is under the control of a public institution, and no such information may be withheld from the court on any ground.
Power
23. In any proceedings before the Court arising from an application under section 20, the Court shall take precaution, including when appropriate, receiving representations ex parte and conducting hearings in camera to avoid the disclosure by the Court or any person of any information or other material on a basis of which any public institution will be authorized to disclose the information applied for.
Others
Weighty responsibility of the judiciary
(a) If the Court determined that the institution is not authorized to deny the application for information;
(b) Where the institution is so authorized, but the Court nevertheless determines that the institution does not have reasonable grounds on which to deny the application;
Weighty
(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.
(2) Any order the Court makes in pursuance of this section may be made subject to such conditions as the Court deems appropriate
Others
Burden of proof
24. In any proceedings before the Court arising from an application under section 20, 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.
FOI Act as Editors’ tools for promoting accountability & transparency
“Entries in the annual prize competitions of Investigative Reporters and Editors (IRE) show that government records requests are often a part of the investigative stories that generate public debates and changes in policies.
By James T. Hamilton in:
‘FOIA AND INVESTIGATIVE REPORTING Who’s Asking What, Where, and When—and Why It Matters’
FOI Act as Editors tools….
1. Editors can decide to become or encourage their line editors and reporters to become Nigeria’s Heather Brooke
Heather Brooke
Þ Your Right to Know (2006)
Þ The Silent State (2010), and
Þ The Revolution Will Be Digitised (2011).
Tool
2. Editors can help strengthen the legal framework of the FOI Act by supporting the demand for its inclusion in the constitution especially in view of the reluctance of some state governments to abide with the law under the pretext that they have not domesticated it.
In its 2012 memorandum to the National
Assembly the Media Network on the Review of
the 1999 Constitution requested a
Constitutional Guarantee of the Right of Access to Information as follows:
That a constitutional backing for the right of access to information should be included in the proposed new Constitution as a sub-section of the current Section 39. The section should be a comprehensive section containing guarantees for a range of free expression, media freedom and access to information rights.
Tools
The Network comprised:
In collaboration with:
Along the line of legal framework, Editors should push for the reform of laws that serve as obstacle to the effectiveness of FOI Act. An example is the Code of Conduct Bureau and Tribunal Act, which does not allow the disclosure of assets declared by public servants or elected political office holders does clearly negating the principles of FOI Act
4. Since it has become a reality that some state governments would rather have their own FOI laws, Editors should push for the enactment of FOI Acts by all the State governments through their State House of Assembly. It can then become a tool to hold the state governments accountable. And if we look at the pattern of trail of erstwhile pubic officials for corruption, then we will see the necessity
5. Editors should exercise oversight over the oversight of the FOI Act by annually engaging the office of the Attorney General and Minister of Justice on the performance of its functions in relation to Section 29 of the FOI Act. By so doing Editors can give maximum publicity to and bring before the court of public opinion, MDAs that are fulfilling their obligations and those that are defaulting in meeting FOI Act requests.
. Editors should lend support and give voice to the demand by civil society groups, especially those in the open government partnership that the office of the Attorney General should stop appearing in court to defend FOI Act request defaulting MDAs since it is the same office that is saddled with the responsibility of ensuring compliance by public institutions
7. Apart from holding the office of the AG/MJ to account, Editors should beam their search light on the state of compliance of MDAs with the sets of obligations imposed on them by the FOI Act to proactively disclose information. An Editor, may for example, decide to go through the institutions inducted into MRA’s Hall of Shame and examine whether or not they’ve changed their attitude to FOI Act requests
8. To promote factually accurate reporting of the public interest issues of social protection, Editors can tailor FOI Requests towards providing enlightening information during calendar events especially by the United Nations. Some that readily come to mind are:
A brief on social protection:
A brief on social protection:
A mix of policies and programmes designed for individuals and households throughout the life cycle to prevent and reduce poverty and socio-economic shocks by promoting and enhancing livelihoods and a life of dignity.
The 8 categories are:
9. Editors can as a matter editorial priority encourage their judicial editors or reporters to do investigative reports on legal cases arising from FOI Requests so that the role or effectiveness of the judiciary in strentghening the regime of FOI can be properly highlighted. Doing so also ensures that there is follow-up on such stories.
* CDHR vs EFCC
Citing the freedom of information law, civil rights group, Committee for Defence of Human Rights (CDHR), requested the Economic and Financial Crimes Commission (EFCC) to disclose the source of the information that CDHR and its President, Mr. Olasupo Ojo, received the sum of N52 million and compromised itself in order to smear the anti-corruption body.
EFCC declined to make the information available which prompted CDHR to urge the court to compel EFCC to make the information available to CDHR.
The law firm of Bamidele Aturu and Co had approached the court on behalf of the Plaintiff for an order of mandamus directing the EFCC to disclose to or make available to him the information he requested in his solicitor’s letter to the Commission dated the 7th day of June 2011.
SERAP and WARDC vs. Federal Government of Nigeria.
A Federal High Court in Ikeja, Lagos granted leave to Socio-Economic Rights and Accountability Project (SERAP), and Women Advocates Research and Documentation Center (WARDC) to apply for an order compelling the Federal Government to disclose information and documents on the spending on fuel subsidy for 2011.
10. Editors can as a matter editorial priority encourage their political and finance reporters reporters to use the FOI Act for investigative reports on political or campaign finance in two ways:
85 – possession of funds outside the country
86 – Filing of annual statement of assets and liabilities
87 – Contribution for parties and candidates
88 & 89 – Election expenses and the limitations
90 – Illegality of anonymous contribution
11. Editors can as a matter editorial priority encourage their reporters to report the fulfillment of campaign promises relating to their beats. In 2011, IPC documented 91 campaign promises of President Goodluck Jonathan, while in 2019, about 31 campaign promises of President Buhari were documented.
12. Editors can encourage their newsrooms to use FOI Act to request for information from MDAs on contract awards and state of implementation in order to expose possible acts of corruption. So also, the utilization of foreign and local loans by Federal and State governments
Additionally:
Note: You can download FOI Act @
http://www.ndr.org.ng/resources-2/
http://www.mediarightsagenda.net
About me Lanre Arogundade