Access to Information and
Under Section 22 of the 1999 Constitution the mass media is required to uphold the fundamental objectives of the State and hold the government accountable to the people. While the duty imposed on the media has been frustrated by the denial of access to information on public affairs, access to information is a fundamental right by virtue of Section 38 of the constitution which stipulates that “every citizen shall have the right to freedom of expression including the right to obtain information and impart ideas”.
Access to information is equally protected by Article 9 (2) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, which provides that “every individual shall have the right to receive information.”
In SERAP & Ors v Attorney General of the Federation (Suit No: FHC/ABJ/CS/640/2010) the applicants applied for information on the mismanagement of the $12.4 billion in the dedicated accounts in the central bank by the General Ibrahim Babangida regime. Following the refusal of the federal government to release the report of the Okigbo Panel, which had investigated the allegation, a suit was filed at the Federal High Court by the plaintiffs seeking to compel disclosure of information of the fund pursuant to Section 38 of the constitution and Article 9 of the African Charter. The trial judge dismissed the case for want of locus standi on the part of the applicants.
However, in Dododo v EFCC the Court of Appeal upheld the human right of the appellant to access information when it was said that he was entitled to a copy of the report of the investigation in respect of the petition alleging corruption by a public officer, which he had submitted to the respondents. Nwodo J.C.A., who delivered the leading judgment of the court, said: “The Appellant is entitled to the investigation report on his right as the complainant. See Article 9 of the African charter.”
We have cited the aforementioned provisions of the relevant laws and cases to emphasise the point that the struggle for access to information in Nigeria predated the enactment of the Freedom of Information Act. All the same, the human rights community, the Nigerian Press Organisation (NPO), Media Rights Agenda and other media bodies which fought the battle that culminated in the enactment of the Freedom of Information Act, 2011 deserve immense commendation.
The essence of the law is to open up the government to the public, promote transparency and accountability in government. Thus, the law has recognised the right of every citizen to access information from any record under the control of the government or public institution.
The law is also applicable to private institutions, which utilize public funds, perform public functions or provide basic services. Private organisations such as telecommunication companies and other public quoted companies fall into this category. Religious bodies, which engage in business, may also be asked to disclose information with respect to funds collected from the members of the public.
The law requires public officers to keep the records of the government. They shall be made available upon demand by interested members of the public including the media (Section 1 & 3). An applicant is required to apply for access to information in writing and to provide sufficient detail in the application. An oral application is not allowed under the law. Under Section 2(2) thereof an applicant is not obliged to give any reason or demonstrate any specific interest in the information. Upon the receipt of a written request the
THISDAY Newspapers Limited. information shall be provided within seven days. The request shall be attended to by the head of the organisation. If a letter is wrongly addressed to any department it shall be forwarded to the appropriate office as the case may be. There are adequate provisions for the information needs of illiterate and physically challenged people to access information. It is also important to note that there is protection for whistle blowers. Refusal of information shall be communicated within seven days. Public officers may ask for extension of time within which to make requested information available to an applicant (Section 6).
An applicant may be requested to pay reasonable standard charge for search, duplication and transcription (Section 8). But where the information is in the public interest payment is not required. Where information is withheld it shall be communicated to the applicant within seven days. The letter shall contain information that the applicant has the right to challenge the refusal in court. An applicant who has been denied access to requested information is at liberty to apply to the court for a review of the matter within 30 days after the denial. To prevent delay the court shall hear an application for mandamus to compel disclosure.
To ensure the implementation of the law the government is required to publish in the gazette a description of its responsibilities, the records under its control, administrative manuals etc. Public institutions are compelled to keep records and information and organise them in a way that they can be accessed. The Act requires government and public institutions to provide training for officials on the public right to access information of public records.
The law has created reporting obligations on compliance with the law for all institutions affected by it. These reports are to be submitted annually to the office of Attorney General of the Federation who in turn is required to oversee the effective implementation of the Act and report on the execution of implementation of the Act to the National Assembly.
If it is proved that information has been altered or destroyed by a public officer or any person he shall be liable to be tried and if convicted he shall be sentenced to one- year imprisonment. However, Sections 29 and 30 have provided immunity for public officers from civil or criminal prosecution for disclosing information without authorisation. In violation of the Act some public officers have been victimised for disclosing information to the members of the public, the media and the anti - graft agencies.
The exception to the FOIA includes information that could compromise national security, the conduct of international affairs, records that could expose trade secrets, test questions, architectural engineering designs, research materials under preparation, legal practitioner – client relationship, health worker – patient relationship and journalists’ confidential source of information (Sections 11, 12, 14, 15, 16 & 17).
The disclosure of personal information is also exempted except where the person involved agrees to its disclosure or where the information is already publicly available, or where the disclosure is in the public interest. For instance, members of the public are empowered by the Electoral Act 2010 to seek information with respect to nomination forms submitted by candidates who are contesting elections in Nigeria.
The Official Secrets Act and other - freedom of expression enactments and regulations cannot be invoked to prevent the disclosure of official information. This is the purport of Section 2(b) of the FOIA, which has guaranteed access to official information notwithstanding anything contained in any other law or regulation.
Ironically, the media, which led the campaign for the successful enactment of the legislation, has not significantly taken advantage of the law to seek information with a view to discharging the duty of promoting public accountability pursuant to Section 22 of the Constitution.
Our law firm has invoked the law to obtain information from the Universal Basic Education Commission (on the total amount paid to the UBE Fund since 2005 by the federal government and disbursement of the fund to states), Nigerian Communication Commission (on the disbursement of the fine of N1 billion imposed on GSM operators for disrupting services), National Drug Law Enforcement Agency (on the list of 197 persons who were convicted for drug trafficking but who were not found in prisons), Corporate Affairs Commission (on whether there was a move to ban the Nigeria Governors’ Forum).
In order to deny access to information some agencies have asked applicants for information to pay prohibitive fees. For instance, when our firm requested the National Oil Spill Detection and Response Agency to provide information on the Bonga Oil Field spillage we were asked (NOSDPRA) to pay N100, 000.00. We made the payment and collected the report. But after collecting the report we petitioned the office of the Attorney General of the Federation to protest the commercialisation of access to official information by the NOSPRA. Upon the intervention of the then Attorney-General of the Federation, Mr. Mohammed Adoke SAN, the sum of N95, 000 was refunded to us while the