The Freedom of Information Act 2011, according to its
long title, was made as an Act to make 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
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 these purposes and
for related matters.
The Act establishes a right of access to public
information in the custody or possession of any public
official, agency or institution howsoever described. It
contains claw back clauses and general exemptions to
the rule in matters such as international affairs and
defence, law enforcement and investigation, personal
and third party information, professional privileges,
research materials and proprietary information. Thus, in
these matters, information can be withheld by the public
authorities and the applicant will be informed of the
grounds upon which the disclosure is refused. But the Act
also provides for severability of materials that are not
exempted from materials containing these exemptions.
The National Assembly in its wisdom provides for a quick
disposal of proceedings when a definite request for
information is sent to the authorities. The public
institution has seven days to respond to the request
either by granting it or denying the same and stating
reasons for denial in a written form or transfer the same
to another public agency with greater interest in the
subject matter. There is also provision for extension of
time to grant the request if the documents are large in
number or bulky. If the applicant is dissatisfied with the
denial, he can approach the courts within 30 days of the
public institution stating so and the Act specifically states
that the application shall be heard and determined
summarily.
Despite these beautiful and very clear statements of the
law, the level of compliance with the FoIA among the
Ministries, Departments and Agencies is low. In very
clear and obvious cases, instead of granting the
requested documents to applicants, many MDAs in clear
violation of the law fail, refuse and neglect to do so.
Pray, why would an agency that spends taxpayers’
money not make the details of the expenditure public
and prefer to go to court to defend its refusal to disclose
the details? Why would a minister refuse to disclose the
details of persons who have defrauded the treasury and
prefer a long drawn litigation? These public agencies
would rather spend large sums of money hiring senior
lawyers who charge very high fees to defend the
indefensible. To add salt to the injury is the fact that the
fat fees are also coming at the same taxpayers’ expense.
At the end of the day, the public treasury bleeds while
the society fails to get the benefits accruing from the
proper and timely implementation of the law. This could
not have been the intention of the legislature in making
the law.
If the MDAs are pleading ignorance of the law or they are
confused about what to do with a particular request, the
Attorney-General of the Federation as the chief law
officer of the nation should establish a summary
procedure with the requisite manpower in his office for
them to get legal advice on the propriety of releasing
public documents. This should give the MDAs advice on
request within the statutory timeframe to revert to the
applicant. And where the leadership of the MDA fails to
abide by the advice, the Attorney-General of the
Federation should be in a position to advise government
on a surcharge of the fees payable to lawyers from the
remuneration of the Accounting Officer of the MDA, when
there is clear evidence that the material sought by the
applicant did not come under the exemptions permitted
by the law.
These abuses of the judicial system would have been
curtailed if the courts have leaned in favour of enforcing
the clear provisions of Section 7 ( of the FoIA which
states that: “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 N50,000”. On several occasions, this particular relief
has been refused by the courts in applications made by
an Abuja-based civil society group, the Centre for Social
Justice. However, none of the judgment has offered the
reasons for declining to grant this relief.
Another major challenge for the enforcement of the FoIA
is the tardiness of the courts. How can a matter that is
stated by law to be heard and determined summarily be
pending in the court for two years without
commencement of hearing? One adjournment follows
another and lawyers from the Ministry of Justice or
defence counsel hired by the MDA take turns to frustrate
the hearing of the application and presiding judges either
encourage them or simply look the other way. In many
instances, counsel for the applicant and respondent are
in court and the judge adjourns the matter to a definite
date and the date was even agreed to by lawyers on
both sides. On the adjourned date, the lawyer to the
respondent deliberately absents himself from the court
and fails to write a letter or send a message to explain
his absence from court. Instead of going on with the FoIA
proceedings, the judge orders the counsel for the
applicant to serve the respondent a hearing notice. And
when the respondent’s counsel eventually appears at the
later date, he makes no explanation and no one asks him
to explain the reason for his absence. The court can now
be held hostage by a counsel who is not ready to defend
the case against his client! The idea
that summary proceedings can go on for two to three
years is antithetical to the word “summary”. The
proceedings could have been anything but not summary.
In this period of the change mantra, the MDAs must be
made to understand that they cannot spend public
resources and hold the same public in contempt. The
information sought to be disclosed will in most instances
facilitate good governance which will benefit the same
person(s) seeking to block the disclosure. Bringing down
the cost of governance includes blocking leakages such
as these unnecessary litigation fees in matters which
could have been disclosed without the rigour of litigation.
Finally, the civil society needs to put pressure and beam
searchlight on the implementation of this law through a
long term strategic engagement of the judicial system
and insist that it works as stated in the clear provisions
of the law.
www.punchng.com/opinion/freedom-of-information-matters-arising/