A Thorough Examination Of Nigeria Freedom Of Information Act, 2011 -By Kehinde Emmanuel Oladele

Introduction

The explanatory memorandum of the FOI Act[2] outlines its objectives, which include providing public access to records and information, ensuring the protection of public records within the bounds of the public interest, safeguarding personal privacy, shielding public officers who disclose official information without authorization, and establishing procedures to achieve these goals. Unfortunately, the practical implementation of these purposes has not been successful in Nigeria. In light of this situation, the author of this analysis highlights the essential nature of the FOI Act and aims to raise awareness in society about the pressing need to make use of the provisions contained within it.

Nigeria citizens Access to Records

Section one of the act makes it very apparent that anybody has the right to request or access information, regardless of its format, whether it is in the possession or under the control of a public official, institution, or organization. In Nigeria, residents have the legal right to ask for any essential information on this basis.It continued by stating that applicants are not required by the statute to establish any particular interest in the information they are applying for.[3]It further specifies that section 6 of the Act is not in conflict with anyone who has the right to obtain information under the Act’s provisions; they have the right to do so by filing a lawsuit against any public institution.[4]Within 30 days of the public institution’s denial or determination that it was a denial, or within any additional time the court may fix or permit either before or after the 30-day window has passed, an applicant who was denied access to information may apply to the court for a review of the matter.[5]

Expectations from public institutions As to Information

public institution[6]are to make sure that it maintains records of all of its operations, companies, and activities.[7]This should be carried out properly, as the organization and upkeep of all the material under its control promotes public access to such information.[8] According to section 4 of the Act, section 3 of the act plainly and emphatically stipulates the information that public institutions must publish. These provisions are reproduced here for clarity: 

(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.

Therefore, the information as described in section 3 above is essential and must be widely distributed and sequentially made accessible to the public through various ways, such as in print, electronic, and online sources, or in the offices of such public institutions.[9]When changes take place, the material published should be periodically updated and reviewed.[10] It’s important to note that Section 9(1) mandates that every government or public institution make sure to maintain all information and documents pertaining to the operations, personnel, and activities of the institution, as well as any other pertinent or connected information and data. Each government and public institution must ensure that appropriate provisions are made for the correct training of its officials in this field in order to carry out the public’s right to access information or documents stored by them.[11]

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

It is also important to understand that any information or record requested under the Act does not exist in print but may, in some circumstances, be produced by a machine and is regarded as a record controlled by the government or public institution. Applications for access to records or information under this section 3 subsection (1) should be submitted in accordance with section 1 of the Act, which was previously explained.[12]The right is not reserved only for the literate; illiterate or disabled applicants who are unable to apply directly for access to information or records due to their illiteracy or disability may do so through a third party.[13]The authorized representative of a government or public institution shall also, in accordance with subsection (1), put in writing the applicant’s oral request for information or a record by notifying the applicant of the extension and specifying whether the circumstance falls within the provisions of this section. The notice must also mention the applicant’s right to have the decision to extend the deadline reviewed.[14]In pursuance of section 21, the court must hear the application and make a quick decision.

Nevertheless, if a public institution or the government refuses to give access to a record or data sought under this Act, or a portion thereof, the institution shall state the grounds for the denial in the notice it sends to the applicant and shall identify the particular section of this Act to which it refers. Additionally, the institution is required to let the applicant know that they have the legal right to challenge the institution’s judgment and have a judge decide the case.[15] The Act continues to provide that the names, titles, and signatures of each person responsible for denying any application for information or records must be included in the communication of denial of such application.[16]also, the government or public institution must state in accordance with this section’s subsection (1) if the information or record is present.[17]  When information or records sought under this Act are not provided by the government or public institution within the allotted time frame, the failure to comply shall be deemed a denial of access.[18], The Act clearly stated that whenever an instance of improper access denial is confirmed, the defaulting official or institution is deemed to have committed an offense and is subject to a fine of N500,000 upon conviction.[19]

 Additional Examination: Fee Charges and Falsification of Records

The cost of doing so shall not exceed standard fees for the transcribing and duplication processes.[20]
It is against the law to knowingly destroy or alter with government or public institution records before releasing them to people, organizations, or communities who have applied for them, according to the law. After being found guilty by the court, the institution’s officer or head may receive a sentence of at least one year in prison.Top of Form[21]

 CATEGORICAL EXPOSITON ON THE EXEMPTION

1. Exemption of international affairs and defense[22]

A public entity has the right to refuse a request for information if doing so could endanger diplomatic relations or the stability of the Federal Republic of Nigeria. However, if the public interest in its exposure outweighs any potential harm it might cause, the request for information cannot be denied.

• Exemption of law enforcement and investigation[23].

A public institution has the right to reject a request for information if it pertains to records generated by the institution for internal purposes, legal or correctional actions, or both., but only if the disclosure would:

(I) Interfere with ongoing or anticipated 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) Inevitably disclose the identity of a confidential source.

(v) Invade personal privacy, except when the public interest would be better served by making the record available.

(vi) Obstruct an ongoing criminal investigation, or when the disclosure could reasonably be expected to be harmful to the security of penal institutions.

Nevertheless, despite these unambiguous rules, a public entity cannot reject a request for information if the public interest in the material’s disclosure outweighs any potential negative effects. It should be highlighted that if a public institution reasonably believes that a request for information will help in the conduct of an offense, it may refuse the request.

• Exemption of personal information.

In accordance with subsection (2) of section 14, a public institution is obligated to reject an information request that contains personal data, which may include:

a) Records and personal information pertaining to clients, patients, residents, students, or any individuals who receive social, medical, educational, vocational, financial, supervisory, or custodial care or services directly or indirectly from public institutions.

b) Personnel records and personal information relating to employees, appointees, elected officials of any public institution, or applicants for such positions.

c) Files and personal information concerning applicants, registrants, or licensees, maintained by any government or public institution involved in professional or occupational registration, licensure, or discipline.

d) Information required from taxpayers for the purposes of tax assessment or collection, unless disclosure is specifically requested by the relevant statute.

e) Information disclosing the identities of individuals who file complaints with or provide information to administrative, investigative, law enforcement, or penal agencies regarding the commission of any crime.

The only exception to this rule is that public institutions are required to publish any information that contains personal information for the reasons listed below:

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

Subsection 3 particularly states that the public institution to which a request for disclosure is made shall disclose such information subject to section 14 (2) of this Act where such disclosure of the information in question would be in the public interest and the public interest of the disclosure clearly outweighs the protection of the privacy of the individual to whom such information relates.

• Exemption of third party[24]

An information application may be rejected by a public institution if it contains trade secrets and financial or commercial data that was received from a person or company and is deemed to be private, privileged, or confidential. Furthermore, the public institution must reject the application if revealing such trade secrets or data could harm the interests of a third party. It is significant to remember that this paragraph does not prevent a person or corporation from giving their authorization to release the information. A public institution must release any information if doing so would clearly outweigh any financial benefit or loss to, or harm to, the competitive position of, or interference with contractual or other negotiations of, a third party. This requirement applies in particular to situations involving public health, public safety, or environmental protection.

• Exemption of professional or other privileges conferred by law[25].

Public institutions have the power to refuse requests for information that fall under the following rights: the journalistic secrecy privileges, the lawyer-client privilege, the health workers’ privilege, and any other legal professional protections. Written assignments from professors or other faculty members may also be excluded from submission. Any portion of the material that does not contain the information that is exempt from disclosure under the Act must be disclosed by a public institution in response to a request for information that is exempt from disclosure under the Act.[26].   

The inherent power of the Court to access information.

Regardless of any provisions to the contrary in the Evidence Act[27],no information that is under the control of a public institution, regardless of any provisions to the contrary in the Evidence Act, may be withheld from the Court for any reason during any proceeding before it arising from an application under Section 20.[28]When it is essential, the Court will implement measures to prevent the revelation of any information by the Court or any individual when hearing arguments ex parte and in secret. And in any action, the public institution in question must demonstrate that it has the power to deny an application for information or a portion of it. 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

The Federal Republic of Nigeria’s National Library, National Museum, or nonpublic section of its National Archives all hold materials that have been added on behalf of anyone other than the government. These materials have also been published, made accessible for public purchase, gathered by libraries or museums solely for the purpose of public exhibition or reference, or published.

Safeguarding the Public officers

An officer of a public institution or someone acting on their behalf may not be subject to legal action due to the requirements of the Criminal Code, Penal Code, Official Secrets Act, or any other piece of legislation. Additionally, these people cannot be sued for truthful release of data or any portion of it in compliance with this Act. This immunity covers both the consequences of the disclosure and the inability to provide any notice required by this Act, given that reasonable care is used to provide the requisite notice.[29]According to this section’s subsection 2, the laws mentioned above will not negatively impact any public officials whose information they divulge without permission, it is 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. 

Any person who obtains or exposes the information is immune from legal action, either civil or criminal. further.

Conclusion

While it is settled that the enactment of freedom of information Act, 2011 is purported to systematically availed citizenry an understanding of right to information with regulated procedure as outlined in this analysis. Nonetheless, the exercise of demystifying and dissecting the act by this writer is to thoroughly acquaint the readers to pragmatically enforce these rights. Obviously, 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, awareness is made.

About the Author

Kehinde Emmanuel Oladele possesses multiple roles and talents. He is an author, a dynamic undergraduate law student, and a skilled writer with proficient research abilities. He has a notable collection of publications both nationally and internationally, demonstrating his dedication to making substantial contributions to jurisprudence as a whole. Furthermore, he is an active member of the Academic Legal Writers and Authors Association of Nigeria and currently serves as an Author/Editor in the LIFIN Editorial Board, an academic initiative established in Nigeria. His authored book was titled “DEMYSTIFYING NIGERIA LAWS ON CONTEMPORARY SOCIO LEGAL ISSUES,” published by Eliva Press. For those interested, the book can be accessed through the provided link: https://www.elivapress.com/en/book/book-7628589326/.

He can be reached him via email at oladelekehindeemmanuel2405@gmail.com or through the phone number +234 7033702316.

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

https://orcid.org/0000-0001-7263-3489: +2347033702316

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

[3] Section 1(2)

[4] Section 1(3)

[5] Section 20

[6]Public institutions were defined expressly in Section 7 as all government authorities, including executive, legislative, and judicial agencies, ministries, and extra-ministerial departments, as well as all corporations created by law and all businesses in which the government holds a controlling interest, and private businesses that use public funds, offer public services, or carry out public functions.

[7] Section 2(1)

[8] Section 2(2)

[9] Section 4

[10] Section 5

[11] Section 13

[12] Section 3(2)

[13] Section 3(3)

[14] Section 3(4)

[15] Section 7(1)

[16] Section 7(2)

[17] Section 7(3)

[18] Ibid. subsection 4

[19] Subsection 5

[20] Section 8

[21] Section 10

[22] Section 11(1)(2)

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

[24] Section 15

[25] Section 16 and17

[26]Section 18

[27] Evidence Act,2011

[28] Section 22

[29] Section 27