- Category: GENERAL
- Published on Tuesday, 26 June 2012 13:49
- Written by Temitope Olodo
“It is implicit that citizens in a representative democracy have a right to seek to participate in and influence the processes of government decision making and policy formulation on any issue of concern to them, whether or not they choose to exercise the right. The importance of FoI legislation is that it provides the means for a person to
have access to the knowledge and information that will assist a more meaningful and effective exercise of that right” - Australian Information Commissioner
When I read this morning that SERAP was seeking information from Mr. President, the above quotation flashed in my mind and any reasonable Nigerian would understand the reasoning behind their action for sending a Freedom of Information request to President Goodluck Jonathan asking him to “provide information on your assets declaration details between May 2007 and May 2012, and to publish widely the information on a dedicated website.”
A similar approach was taken by human rights lawyer, Mr. Femi Falana, demanding answers as to why his Arik Air flight into Nnamdi Azikwe Airport on 19th of June was prevented from landing by the Airport Authorities for 25 minutes outside the scheduled time slot.
The two cases are similar and they reflect a particular perception of this administration. In the first instance, there is no reasonable justification for endangering lives of air passengers and likewise, in a democratic setting, leaders are set to lead by example.
However, the request for information submitted by Mr. Femi Falana, to the Minister of Aviation, PRINCESS STELLA ADAEZE ODUAH, OON, under the Freedom of Information Act to request for the name of the V.I.P (Very Important Personality) who prevented his Arik Air flight into Abuja from landing as scheduled is fascinating and I believe it is in the public interest to know how this FOI saga would play out including how the request sent by SERAP to President Goodluck Ebele Jonathan GCFR would be handled.
Many Nigerian human right activists and journalists alike believe the Freedom of Information Act 2011 is their ultimate weapon for extracting information out of Nigeria's Public Authorities/Institutions but the gospel of truth is that some of their opinions are misconception and lack of outstanding of the Act itself. Over 85 countries around the world have implemented the FOIA in one form or the other and the first known Act was passed in 1766 by the Swedish.
It is important to remind ourselves the origin of the Act. The Freedom of Information Act was first introduced as a bill in the House of Representatives in 1999 as a private member’s Bill on the 8th of December 1999 and published in the federal government’s Gazette. Subsequently, the bill went through the first and second reading on the 22nd of February and 13th of March 2000 respectively. After over 11 years, the House of Representatives passed the Bill on the 24th of February 2011 and the Senate approved it on March 16, 2011. The harmonised version was passed by both Chambers on 26th of May 2011 and it was conveyed to President Goodluck Jonathan on the 27th of May 2011 for endorsement and he signed it into law on the 28th of May 2011. The gospel truth is this; there were elements within the corridors of power that never wanted the bill to see the light of day.
The Act under Section 3(2) of the Act provides for access to public records and information but there are also exemptions to the release of certain public records within the Act. The beauty of the Act is that it places the burden of proof on the public institutions to explain why access to information is denied rather with the requester. Therefore, the person making the request for information does not usually have to give an explanation or reason for requesting for information, but if the information is not disclosed within the 7 days timeline; then there is a valid reason for the requester to seek legal redress on the matter.
What is interesting to date is that after one year of the existence of the Act, both the Ministry of Aviation and the Office of the President have not effectively complied with the provisions of the Act. For instance, normally both Mr. Falana and SERAP’s request for information should be sent directly to designated FOI contact within these respectively offices but with the lack of visible compliance on the part of the Ministry and the Office of the President with the provisions of the Act then they are only doing what any reasonable person would do. The Act also places an obligation on public authorities to provide a publication scheme which informs the general public about the type of information they could response under the FOI Act but with such publication scheme unavailable it makes it harder to extract information from the public authority.
However, The Act also recognises that there may be valid reasons for withholding information requested for by the requester and that is because the information might be one of the many areas exempted under the law such as:
· Information about investigations and proceedings conducted by public authorities;
· Court records;
· The interests of Nigeria abroad;
· The prevention or detection of crime; or
· Information relating to personal information and others etc
If a public institution decides to refuse a request for information under the exemption listed above or others, then it is a requirement by law that the public institution inform the requester of the refusal within 7 days of receiving the request under the Freedom of Information Act 2011.
It is important that when public institutions are refusing a request for information because part of the request falls under an exemption that they are not withholding an entire document. The public institution can still provide a redacted version of the document along with a refusal notice stating why some of the information cannot be released.
Thus, when a public institution decides to refuse a request for information, it is important that they explain which exemption or exemptions you have applied, why you have applied them and, where appropriate, fully explain the public interest factors for and against disclosure.
At least, we are aware that the court is willing to intervene to ensure compliance with the decision of the Federal High Court, today in Abuja ordering the Clerk of the National Assembly to release to the Legal Defence and Assistance Project (LEDAP), details of the salaries, emoluments and allowances that were collected by national legislators between 2007 and 2011.
However, whilst the above case is a victory for advocates of openness I believe that both Mr. Falana and SERAP cases are different. In the case of Mr. Falana, if I was advising the Minister of Aviation on her response to the request, she could refuse to release that information on the grounds of national security. If the V.I.P is on official assignment on national security reasons then the Act protects an exemption and the release of individual name is also exempted on grounds of personal information. Unfortunately, Nigeria FOI law does not have exemptions such as ‘Neither Confirm nor Deny’ which exist in other FOI legislation such as the United Kingdom. The requester of the information, Mr. Falana, could get that information in a different way which is through ‘Round Hobin Tactic’
Though, Mr. President is a public office holder yet sending him a request outside the FOI Act and if I was advising Mr. President I would bounce back the request for information and ask the requester to resend it to the Office of the President. Under the Freedom of Information Act, the President is not under an obligation to declare his salary because that is personal information but his office is under an obligation to declare how much he is paid as a public office holder. If I was advising SERAP, the best approach is to ask his office to declare how much he was paid as a public office holder between 2007 and 2012. In fact, I will ask him to release money received as payment for services rendered to any organisation (private or public) that receive government funding or works with Nigeria government.
It is important to understand that Nigeria FOI Act does not define public interest. In some literatures, the public interest test is sometimes referred to as “Public Interest Override” because the public interest consideration sometimes “overrides” the exemption and the section covering ‘Landmark FOIA Judicial Decision’ provides some insight into the decision of the court on the subject matter.
Therefore, the “public interest” is a vague concept which is naturally not defined in access to information legislation. This flexibility is intentional because there is an acceptance that public interest will change over time and according to the circumstances of each situation thus, the need that the law does not try to categorically define what is “reasonable.”
The FOI Act also recognises that there may be legitimate reasons for withholding information either for the protection of the public, national security or infringement of individual rights. Thus, the Act sets out a number of categories where exemptions rules could be invoked but most of these exemptions are subject to a public interest test.
Nigeria Freedom of Information Act 2011 (FOIA) gives rights of public access to information held by public institution yet it is clear that public institution can refuse a request on the grounds of national security. The FOIA gives an exemption from disclosing information where the exemption is needed for the purpose of safeguarding national security. This exemption is subject to a public interest test.
Although, there is no definition of “National security” in the law but it is capable of a wide interpretation. The interests of national security are not limited directly to preventing military and terrorist attacks within Nigeria boundary but include the safety of Nigeria citizens overseas, the protection of our democratic constitution, the effective operation of national security bodies, and co-operation with other countries in fighting international terrorism. When the FOIA was passing through UK Parliament, the House of Lords made it clear that the government should have significant discretion in determining what is in the interests of national security.
In the case of Norman Baker MP v IC and Cabinet Office (EA/2006/0045; 28 February 2007) the Information Tribunal held that the Cabinet Office was not required to release information about the Wilson doctrine, which covers the interception of MPs’ telephones. The tribunal decided it helpful to refer to a decision by the House of Lords (HL): Secretary of State for the Home Department v Rehman ( UKHL 47;  1 AC 153). In that case, it was held by the Law Lords that the interests of national security were not limited to preventing specific threats to the UK alone but included the protection of democracy, international co-operation and other aspects of the government’s counterterrorism policy. The exemption under the law for safeguarding national security does not apply simply because the information relates to national security and it must be applied in a blanket fashion. There must be evidence to support the assertion that disclosure of the information requested would pose a real and specific threat to national security.
What I am trying to point out is that, on the prima facie the Freedom of Information Act could be viewed as an instrument for extracting information but you have the right person with good knowledge of the Act then it would be used to prevent disclosure.
SERAP invokes FOI Act to seek Jonathan’s assets declaration
A civil society group, Socio-Economic Rights and Accountability Project (SERAP) has sent a Freedom of Information request to President Goodluck Jonathan asking him to “provide information on your assets declaration details between May 2007 and May 2012, and to publish widely the information on a dedicated website.”
The group said that “failure to comply with the request within 7 days of receipt and/or publication will compel us to seek appropriate legal action to enforce the FOI in your case.”
The request dated 26 June 2012 was signed by the group’s executive director Adetokunbo Mumuni.
According to the group, “The disclosure of the information requested will give SERAP and the general public a true picture of the assets of the president from May 2007 to May 2012, and will demonstrate the president’s oft-expressed commitment to transparency and accountability and show that your signing of the FOI was not just a public relation exercise but a public duty done in good faith.”
The group said that it is “concerned that your recent statement that you would not publicly declare your asset is a clear violation of the Nigerian Constitution and the UN Convention against Corruption to which Nigeria is a state party, and entirely inconsistent with your oft-repeated promises to prevent and combat high-level official corruption in the country.”
“Your statement may also have breached the provisions of chapter two of the 1999 Constitution dealing with Fundamental Objectives and Directive Principles of State Policy, which among others require the government to take steps to eradicate corrupt practices and the abuse of power,” the group added.
“We are also concerned that your statement shows your government’s lack of political will to lead by example, and to combat the endemic grand corruption which has continued to have corrosive effects on the human rights, in particular economic and social rights of millions of Nigerians. Your statement is also inconsistent with the action of a president who signed into law and is supposedly committed to the effective implementation of the Freedom of Information Act,” the group also said.
The group also said that “We believe that disclosure of assets is crucial for ensuring that public officials’ personal interests including that of the president as the leader of the nation, do not conflict with their duties and responsibilities. Public disclosure also helps to provide a baseline and thus means for comparison to identify assets that may have been corruptly acquired and that a public official may legitimately be asked to account for.”
“Specifically, Section 153 of the Constitution establishes a Code of Conduct Bureau to ensure, among other things, that all public officers, as defined in Part II of the Fifth Schedule, declare their assets on assuming office and immediately their terms of office expire. Paragraph Three of Part 1 (A) of the Third Schedule, empowers the Bureau to receive declarations made by all public officers, examine same and keep them in custody. Paragraph 3(C) says the Bureau shall have the power to “retain custody of such declarations and make them available for inspection by any citizen of Nigeria on such terms and conditions as the National Assembly may prescribe.”
“Similarly, the UN Convention against Corruption requires public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials,” the group also added.
The organization also said that, “By virtue of Section 1 (1) of the Freedom of Information (FOI) Act 2011, SERAP is entitled as of right to request for or gain access to information, including information on the assets declaration by the president of Nigeria, being a public document within the meaning of the FOI, and which is in the custody or possession of any public official, agency or institution.”
According to the organization, “By virtue of Section 4 (a) of the FOI Act when a person makes a request for information from a public official, institution or agency, the public official, institution or urgency to whom the application is directed is under a binding legal obligation to provide the applicant with the information requested for, except as otherwise provided by the Act, within 7 days after the application is received.”
The organization also said that, “By Sections 2(3)(d)(V) & (4) of the FOI Act, your excellency is under a binding legal duty to ensure that documents containing information relating to your assets declaration are widely disseminated and made readily available to members of the public through various means.”
“The information being requested does not come within the purview of the types of information exempted from disclosure by the provisions of the FOI Act. The information requested for, apart from not being exempted from disclosure under the FOI Act, bothers on an issue of national interest, public concern, interest of human rights, social justice, good governance, transparency and accountability,” the organization also said.
When asked why he has not yet publicly declared his assets during his recent media chat the president responded that: “I don’t give a damn about that. The law is clear about it and so, making it public is no issue and I will not play into the hands of the people. I have nothing to hide. “I declared (assets publicly) under the late President Umaru Musa Yar’Adua because he did it, but it is not proper. I could be investigated when I leave office. “You don’t need to publicly declare it and it is a matter of principle. It is not the President declaring assets that will change the country.”