The Role of Public Officials in the Unfettered Implementation of the Freedom of Information Act
Presented by Kehinde Adegbite Esq at the Two-Day Capacity Enablement Workshop Organised for Government Officials on the Freedom of Information Act (FOIA), 2011 held at Queen’s Court, Ado/Ikere Road, Ado-Ekiti, Ekiti State Between 23rd May, 2017 and 26th May, 2017
“What makes civilised societies civil is the Freedom of Information Act.”
Dr Ayobamidele Taiwo
“It is scrutiny by the general public that keeps the powerful honest.”
Heather Brooke
WHAT IS FREEDOM OF INFORMATION?
It is the right of every person to request for information from public institutions or to have access to information in the custody of public institution. In other words, it is everybody’s right and any law that establishes this right such as the Nigeria’s Freedom of Information Act, 2011 is everybody’s law because, like members of the public, a public official too can use the law to obtain information for personal use and benefit.
Article IV (1) of the Declaration of Principles on Freedom of Expression in Africa provides, “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.”
The primary purpose of the Freedom of Information Act is to give the people of Nigeria and non-Nigerians residing in the country greater access to information and records officially held by government so that the people will become more involved in the process of governance. The right of the people to official information is one of the tenets of democracy and a veritable weapon to deter corrupt practices and arbitrary use of governmental powers . The law, i.e. Freedom of Information Act (FOI Act), does not however fail to recognize the limits to people’s right to know. Personal privacy is still protected to the point that public interest is not jeopardized.
HOW DID WE GET HERE?
The FOI Act has a chequered history in Nigeria . The push for the passage of this law started in Nigeria in 1999 but was not passed until 2011 when the former President, Dr. Goodluck Jonathan, assented to its bill on 28th May, 2011. The idea behind this law is premised on the fact that the power exercised by any government actually belongs to the people and flowing from this, the people are entitled to be informed about the affairs of their government. This right of the people to know is exercisable through their ability to request for information and be given access to certain pieces of information.
Nigeria is not the first country to recognize the significance of this law through its enactment. As far back as 1766, Sweden, being the first country in the world to do that, passed her Freedom of Information Law and thereafter, many countries have followed suit. Now, about 90 countries have this law, while only ten of these countries are in Africa . The human urge to know what their representatives are doing on their behalf is a natural instinct. Heather Brooke expressed this when she said, “The movement towards radical transparency and accountability has been gaining steam for several decades.”
Nigeria is one country coming from the background of utmost secrecy in official information. A lot of laws is still in existence that forbid the release of publicly-held information. Prior to the passage of FOI Act, it was a serious challenge for media practitioners to access information, while researchers, civil society organisations and other people were no less encumbered by laws that prohibited access to official information and public records. Government business in Nigeria was shrouded in secrecy. For example, Nigerians wanted to know how much Governors collect as security votes as well as salaries of their national lawmakers, among others. But the question is- with the passage of the FOI Act in Nigeria, has the situation changed? As the common saying goes, “old habits die hard”. The situation has not radically changed. Legislation like Official Secrecy Act, Criminal Code, Penal Code, Evidence Act and Public Service Rules still exists. However, the provisions of the FOI Act supersede those anti-disclosure statutes and in cases of conflict between these laws and the FOI Act, the latter prevails. In spite of this, six years of the FOI Act in Nigeria have not been impressive; many public institutions and officials are yet to come to terms with the obligations imposed on them by the new law. Official information is still not largely available, even on request, while basic information that should be provided publicly without request is still held secret. One of the ways out of this debacle is for corporate bodies, civil society groups and individuals to continue to sensitise public officials concerning their roles under the Act as well as the right of members of the public and with time, implementation of the FOI Act will take roots in Nigeria, enhancing accountability and transparency in public life.
Every government or public institution must ensure the provision of appropriate training for its officials on the public's right to access information or records held by government or public institutions, as provided for in this Act and for the effective implementation of this Act.
Therefore, this workshop should be taken very seriously!!!
A. Gains in Complying with the FOI Act
Why this Workshop is Important
Section 13Every government or public institution must ensure the provision of appropriate training for its officials on the public's right to access information or records held by government or public institutions, as provided for in this Act and for the effective implementation of this Act.
Therefore, this workshop should be taken very seriously!!!
HOW DOES THIS LAW AFFECT YOU AS PUBLIC OFFICIALS?
Although FOI Act came into existence in Nigeria in 2011, it is not asking public officials to do anything entirely new. The Act talks about keeping of public records and documents – this is what public officials have been doing all along before this law came when they put documents in files and keep the files in offices. The only thing that is new is that they now have to give members of the public access to the documents that they keep. The question is – why do they have to do this?A. Gains in Complying with the FOI Act
Public officials have a lot to gain with this law:
1. When they give information requested for by the public, they gain public respect and confidence.2. Giving out of information improves the image of the government as members of the public begin to see such government as being transparent and honest.
3. It wards off unnecessary litigations and saves the government costs that may be incurred in defending law suits.
4. It paints public officials/servants in good light as efficient and effective.
B. Pains in not Complying with the FOI Act
1. When public officials hoard information that should be released to the public, government’s image is being destroyed.
2. Refusal to release information can attract a criminal prosecution and penal consequence to a public official.
3. It can lead to incessant court actions.
4. It can paint a government as undemocratic, corrupt, dictatorial, and not transparent.
5. It paints public officials/servants as lazy, inefficient, and incompetent.
C. How can Public Officials Implement the FOI Act?
Broadly speaking, a public official has four roles under the FOI Act, i.e. to keep records of public information, to proactively make public information available to the members of the public, to respond to requests by members of the public to have access to publicly held information or to obtain such information from a public body, and to submit annual report of compliance with the provisions of the Act. In specific terms, these roles shall be broken down vis-Ã -vis the respective sections of the Act that provide for them.
Role #1
Section 1 (1) of the FOI Act says that right of any person to access or request for public information may be exercised either by putting it in writing or making it orally.
If it is made orally, a public official has a duty to put it in writing for such applicant and give it to him or her – Section 3 (3).
Role #2
A public official must know that an applicant does not owe anybody any duty to provide a reason or reasons why he or she needs the information being requested for – Section 1 (2).
Role #3
Public officials have a responsibility to record and keep information about activities and operations of public institutions and to organise the information so kept properly in order to facilitate easy access to the information – Sections 2 (1) & (2) & 9 (1) & (2).
Role #4
Every public institution has a duty to ensure that certain information is made freely available to members of the public even without asking. Details about an officer designated to attend to requests for information in each public institution should also be provided – Section 2 (3), (4), and (5).
Role #5
When an application is made for information, a public official must make it available within 7 days or provide a written notice to an applicant within the timeframe if the information requested for cannot be made available – Sections 4 & 7.
Role #6
If an application for information is made to one public institution and such public institution has to transfer the application to another public body, a public official has a duty to inform the applicant accordingly – Section 5 (1) & (2).
Role #7
On some occasions, the time limit of 7 days set in Section 4 may have to be extended by another 7 days – Section 6.
Role #8
A public official must be prompt to respond because failure to respond within the time limit and failure to communicate with the applicant accordingly will be deemed as refusal of application which may carry a dire consequence – Section 7 (4).
Role #9
A wrongful refusal of application for information may earn a public official a penal consequence – Section 7 (5).
Role #10
A public official who doctors or destroys public information may be prosecuted for an offence – Section 10.
Role #11
Public information may not be disclosed by a public official, if such information is prohibited from being disclosed under Sections 11, 12, 14, 15, 16, 17, 19, and 26.
Role #12
A public official may justifiably disclose public information that should not have been disclosed, if the official is of the opinion that it is in the public interest to disclose it or it can be severed or a court has ordered its disclosure – Sections 11 (2), 18, & 22
Role #13
A public official may validly disclose classified information under the Official Secrets Act without any adverse legal consequence to such public official – Section 27.
Role #14
A public official shall make annual report of its activities under the FOI Act to the Attorney-General of the Federation – Section 29.
Role #15
Each public institution shall make such report available to members of the public – Section 29.
THE JOURNEY SO FAR
The first test of the Act was reported to be by an organization known as the Social and Economic Rights Accountability Project (SERAP), which, citing the relevant sections of the Act, approached the governors of Enugu, Kaduna, Rivers and Oyo States demanding details of budget allocation and expenditure of their Universal Basic Education Commissions (UBEC), since 2005. When, two months after, the information was not supplied, the organization approached the courts citing the appropriate sections of the FOI Act.
Role #1
Section 1 (1) of the FOI Act says that right of any person to access or request for public information may be exercised either by putting it in writing or making it orally.
If it is made orally, a public official has a duty to put it in writing for such applicant and give it to him or her – Section 3 (3).
Role #2
A public official must know that an applicant does not owe anybody any duty to provide a reason or reasons why he or she needs the information being requested for – Section 1 (2).
Role #3
Public officials have a responsibility to record and keep information about activities and operations of public institutions and to organise the information so kept properly in order to facilitate easy access to the information – Sections 2 (1) & (2) & 9 (1) & (2).
Role #4
Every public institution has a duty to ensure that certain information is made freely available to members of the public even without asking. Details about an officer designated to attend to requests for information in each public institution should also be provided – Section 2 (3), (4), and (5).
Role #5
When an application is made for information, a public official must make it available within 7 days or provide a written notice to an applicant within the timeframe if the information requested for cannot be made available – Sections 4 & 7.
Role #6
If an application for information is made to one public institution and such public institution has to transfer the application to another public body, a public official has a duty to inform the applicant accordingly – Section 5 (1) & (2).
Role #7
On some occasions, the time limit of 7 days set in Section 4 may have to be extended by another 7 days – Section 6.
Role #8
A public official must be prompt to respond because failure to respond within the time limit and failure to communicate with the applicant accordingly will be deemed as refusal of application which may carry a dire consequence – Section 7 (4).
Role #9
A wrongful refusal of application for information may earn a public official a penal consequence – Section 7 (5).
Role #10
A public official who doctors or destroys public information may be prosecuted for an offence – Section 10.
Role #11
Public information may not be disclosed by a public official, if such information is prohibited from being disclosed under Sections 11, 12, 14, 15, 16, 17, 19, and 26.
Role #12
A public official may justifiably disclose public information that should not have been disclosed, if the official is of the opinion that it is in the public interest to disclose it or it can be severed or a court has ordered its disclosure – Sections 11 (2), 18, & 22
Role #13
A public official may validly disclose classified information under the Official Secrets Act without any adverse legal consequence to such public official – Section 27.
Role #14
A public official shall make annual report of its activities under the FOI Act to the Attorney-General of the Federation – Section 29.
Role #15
Each public institution shall make such report available to members of the public – Section 29.
THE JOURNEY SO FAR
The first test of the Act was reported to be by an organization known as the Social and Economic Rights Accountability Project (SERAP), which, citing the relevant sections of the Act, approached the governors of Enugu, Kaduna, Rivers and Oyo States demanding details of budget allocation and expenditure of their Universal Basic Education Commissions (UBEC), since 2005. When, two months after, the information was not supplied, the organization approached the courts citing the appropriate sections of the FOI Act.
Other organisations followed. For instance, the Legal Defence and Assistance Project (LEDAP), citing the FOI Act, dragged to court the accountants-general of the 36 states of the federation, as well as the Auditor-General of Kwara State, for refusing to make available to it details of security votes allocated and released to the states from 2007 to 2011. This was after the organization had allowed the waiting time to lapse. In August, 2011, another organization, the Nigeria Association for the Care and Resettlement of Offenders (NACRO), citing the FOI Act, approached the Ogun State Government for information on the concessioning of government-owned Gateway Hotels.
In 2015, an organisation known as BudgIT approached the Office of the Secretary to the Government of the Federation for details of expenditure on Independence Day anniversaries under the Goodluck Jonathan administration. The Office of the SGF provided the details with figures falling far below those earlier flagged by some of the ex-president’s critics.
In 2015, an organisation known as BudgIT approached the Office of the Secretary to the Government of the Federation for details of expenditure on Independence Day anniversaries under the Goodluck Jonathan administration. The Office of the SGF provided the details with figures falling far below those earlier flagged by some of the ex-president’s critics.
The debate on whether or not the law is binding on all states in Nigeria still remains unsettled as at now. The Nigerian Supreme Court is yet to lay the controversy to rest. There are conflicting decisions of High Courts on it. Some High Courts have ruled that the FOI Act is binding on states, while some others have ruled otherwise . So far, only Ekiti State replicated the law as at July, 2011 and in many other states, the freedom to request for or to have access to official information is almost totally non-existent.
Notwithstanding the lull in the frequent use of this wonderful legislation, it is a law that will not die because public awareness is growing day by day. It is a citizen’s law and as the power which the governed can wield against the government, public officials must be up and doing to ensure that the very small segment of the society that may want to take advantage of the legislation is attended to promptly and rightly.
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