THE FOIA PROVISIONS IN FOCUS
Seven years after the enactment of the Freedom of Information Act 2011 (FOIA), Nigerians seem yet to understand and fully benefit from the purpose of the Act. The purpose of the FOIA is to make public records and information more freely available to the public and to protect these records and information to the extent consistent with the public interest; and the protection of personal privacy. Public institutions are primarily established to provide services to the public, of course, subject to its enabling law, anddue to interactions with the public, these public institutions usually are in custody or possession of information and documents of public interest. The FOIA gives the right to any person to access or request information in the custody of any public institution in Nigeria, which such a public institution is mandated to keep, andsuch a person need not demonstrate specific interest in the information. (Section 1, 2 and 3). In FEDERAL UNIVERSITY OF TECHNOLOGY, AKURE & ANOR V. ACADEMIC STAFF UNION OF UNIVERSITIES (ASUU) (2013) LPELR-20323, the court held that public institutions should abide by the laws of the country, and the FOIA being a law in this country should be obeyed.
However, this does not mean that such applicant must be obliged with such information.The public institution is mandated to make the information available to the applicant within 7 days of the receipt of the application, or give written notice stating the reason(s) for denying the application.The 7 days within which the public institution is expected to respond may be extended for a time not exceeding 7 days. (Section 4-7)
Thus, if the public institution may deny an applicant access to information sought, what are the possible reasons for such denial? The aim of this article is to explore possible reasons for denial and to examine who the final arbiter should be in the event of such denial by a public institution.
POSSIBLE REASONS PUBLIC INSTITUTIONS DENY APPLICANTS ACCESS TO INFORMATION
The possible reasons for denying an applicant access to information may generally be classified under two headings. Firstly, reasons based on exemptions under the FOIA. The FOIA contains many exemptions that allow public institutions to deny an applicant information sought. Some of these exemptions relates to the type of information. For instance, denial may be made in respect of personal information [section 14]; privileged information [section 16]; course or research materials [section 17]; records relating to tests, examinations etc. [section 19].
Others are based on the harm or injury that would arise or would likely arise from the disclosure. For instance, denial may be made in respect of information injurious to the conduct of international affairs and the defense of the Federal Republic of Nigeria [section 11]; on law enforcement and investigation [section 12]; third party information [section 15]. Notwithstanding these exemptions, an application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury that disclosure would cause. The public institution is expected to apply the public interest test in determining whether or whether not to deny the application.[sections 11, 12, 14, 15]. Further, where an application for information which is exempted from disclosure by FOIA is made, the institution shall disclose any part of the information that does not contain such exempted information. [section 18]
Secondly, reasons based on perceived fear that such disclosure of information may lead to exposing some of the corrupt practices clandestinely practiced in public institutions. It is no longer news that most, if not all public institutions in Nigeria seem to be engaging in different forms of corruption. Some are subtly carried out, others are obvious, manifesting in several forms.
These include bribery, theft, embezzlement, extortion, fraudulent activities such as bloated government contracts, listing ghost workers, establishing fake companies etc. Beyond these commonly associated corrupt activities are also other corrupt activities like favouritism, nepotism and clientelism. In fact, some public institutions will rather claim that information applied for, is missing rather than supply the information. Especially, information likely to expose or lead to the exposure of their illicit activities.
It is important to note that the FOIA mandates every public institution to 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. [Section 9(2)]. In addition, any officer or head of any government or public institution to which the FOIA applies who willfully destroys any records kept in his custody or attempt to doctor or otherwise alter same before they are released to any person, entity or community applying for it, shall be liable to a minimum of 1year imprisonment upon conviction by the court.It is also a criminal offence for the public institution to destroy or falsify any of such record, and where a case of wrongful denial is established, the defaulting officer or institution will be liable on conviction to a fine of Five Hundred Thousand Naira. (Section 10 and 7(5).
So since public institutions may hide under either of the above reasons in denying an applicant an information, it is therefore expedient that the applicant should, where there is doubt as to the actual reasons for denial, apply to the court for a review of such matter. Such application should be made within 30 days after the public institution denies or is deemed to have denied the application. [section 20] Applicants should exercise their right for a judicial review and not shy away for fear or intimidation by the officers of the public institution. Where the court grants the order for disclosure, and there is still noncompliance on the part of the public institution, then the applicant should initiate proceedings for contempt of court.(Section 72 of the Sheriffs and Civil Process Act/Law and Order 9, Rule 13 of the Judgment (Enforcement) Rules, made pursuant to the Act; Mrs. Ethel C. Chukwu&Ors V Hon. Lolo Stella C. Chukwu&Ors (2016) LPELR – 40553) In the event of a denial based on the above reasons, who ought then, to be the final arbiter?
THE COURT AS THE FINAL ARBITER IN DETERMINING THE PUBLICINTEREST:THE NEMO JUDEX IN CAUSA SUA PRINCIPLE.
The principle of nemo judex in causa sua/ nemo judex in re sua simply meansa person should not be a judge in his own cause. ORUGBA V UNA (2002) 9-10 S.C 11. The FOIA states that a public authority cannot withhold records if the public interest in disclosing the information outweighs the injury such a disclosure would cause. Public interest in this context simply means public good. It does not however mean what ‘interests the public’ nor does it mean the private interest of the applicant for the record or information. GRACE SZUCS V THE INFORMATION COMMISSIONER . So then, who ought to apply the public interest test vis-a-visthe disclosure of information? Differently put, on whose power does the determination of whether the injury caused by the release of an information outweighs the public interest or vice versa. Is it the court, the applicant, or the public institution?
Based on the principle of nemo judex in causa sua, the applicant and the public institution are both disqualified in having the final say on whether the injury that may be caused by the release of an information will outweigh the public interest; both being parties to the cause. The court, as “the option standing”, after disqualifying the applicant and the public institution becomes the final arbiter. The court in determining matters relating to the refusal of a public authority to disclose information may consider among others, if the public interest sought can promote transparency in government or public institutions, accountability, good governance, justice, fairness, equity, good conscience etc. In addition, the court must assess the extent to which public interest disclosures is served or otherwise.
It is important to note that even the FOIA supports the court as the final arbiter in such matters. For instance, the applicant who has been denied access to information, or a part thereof, may apply to the Court for a review of the matter.(section 20)Again, section 22 provides that the court may, in the course of any proceeding before it, arising from an application under section 20 of this act, examine any information to which the FOIA applies, that is under the control of a public institution, and no such information may be withheld from the court on any ground.Further, the public institution has the burden of proving to the court that it is authorized to deny an application (section 24).It ultimately lies on the shoulders of the court as the final arbiter to determine if such denial is justified and appropriate in the circumstance, and where not appropriate, order disclosure. (section 25)
In arriving at a decision, the court has unfettered powers to review the documents sought by an applicant which a public institution has refused to release. After examining any of such document or information, the court may also determine whether a portion or all parts of the information should be released to the applicant. The fact remains that although, the public institution may deny an applicant access to information within its custody, the court as the final arbiter should have the last say.The courts therefore, must remain fair and objective in determining the weight of the public interest against the injury which the disclosure will cause. They should not shy away or deviate from their main duty towards an application for judicial review. As was reported of a High Court Judge who struck out an applicant’s Motion Ex-parteseeking a declaration that the continued refusal to make information available by that public institution violated section 4 of the FOIA. The ratio decidendi for striking out the Motion was becausethe Judge felt the applicant had no interest or specific reasons for making such an application.
The court is to weighthe public interest against the injury to be caused if disclosure is made, and not to determine the viability of an applicant making the request. An applicant need not demonstrate any specific interest in the information being applied for according to the FOAI.The final arbiter, the court should only focus on determining the justiciability of the reasons advanced by the public institution for the denial, and whether whatever injury that disclosure would cause outweighs the public interest.
On a final note, the FOIA is a step in the right direction in making information easily accessible to the public and fostering public accountability. After all, S39 of the 1999 Constitution of the Federal Republic of Nigeria, provides for freedom of expression and it covers the right to hold opinions, receive and impart ideas or demonstrate information. The growth of our young democracy needs the transparency and meaningful engagement of government institutions by the populace. We should not overlook the objective of the FOIA which is to enhance national growth, unity and public good. The FOIA is aimed at engaging the public in fostering transparency in public affairs, resources and public institutions.
Notwithstanding the right to privacy, protection of reputation and national security, refusals on disclosures should be properly examined by the court. The judiciary should not be afraid to take advantage of the flexibility created by the public interest concept in adjudicating matters before it in court on refusal of disclosures under the FOIA 2011. As the final arbiter, the court has the responsibility to determine what information should be made available to the public putting into consideration the evidence before it as well as the aim to foster transparency and grow our democracy.
THE AUTHORS
Oluchi Jacquelyn IRONKWE is a legal practitioner with over 12 years’ experience. She graduated from the University of Nigeria. She is an Associate of ICSA UK and holds an LL.M in International Commercial Law from Robert Gordon University, Aberdeen, UK. She is currently the lead partner of Fontini Juris Solicitors, a corporate and commercial Law firm. She is also a PH.D candidate. Contact @ fontinijuris@gmail.com.
Mrs. Chioma Angela OKEKE is a lawyer with over 12 years legal experience. She holds a B.L and MBA. She also has an LLM in Criminal Law and Criminal Justice from the University of Sussex, UK. She is a Chartered Secretary/Administrator and a Chartered Mediator/Conciliator. Contact @ cane_ogbalu@yahoo.com.
