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Frequently Asked Questions about the Freedom of Information Act

What is Freedom of Information?

Freedom of information is a legal right to access personal or public information, documents, or records in official custody without compromising the integrity of the same. See section 1 (1) of the freedom of Information Act 2011. The primary purpose of the law is to make available to the public, possible information concerning the architectural operations of the government or its officials. This right includes the freedom to ask, receive and share public information. It serves as a precondition for the exercise of the basic rights of political participation and representation, guaranteed under the Constitution. See section 39 of the Constitution of the Federal Republic of Nigeria 1999.

What is Public Interest under the Freedom of Information Act?

Public interest is the interest that the society unequivocally upholds as one affecting her social political and cultural advancement. The meaning of public interest under FOIA is the public’s right to know and participate in government.

Do FOI Counsel Write FOI requests for any interested applicant?

We submit FOI requests for clients, negotiate with the agency for the disclosure, and assist in litigating denial. We have FOI request sample as a model for self-adaption

Does Freedom of Information apply to only federal institutions?

No. Although FOIA is a federal law yet it can be deployed to seek information from federal, state, and local government institutions, and private businesses with government equity and across all arms of government including the judiciary and the legislature. See AUSTIN OSAKUE & 12 ORS v. EDO STATE AGENCY FOR THE CONTROL OF AIDS

 Can I use FOIA to review documents from my state government? 

Yes. FOIA applies to agencies of the federal government, State, Local Government, and private business with government equity and across all arms of government including the judiciary and the legislature

How does one obtain access to public records from the government? 

The process is simple. All you need to do is to write a request letter stating the information you require and drop the letter or post the same to the office where you think the information is created. The government is then required to acknowledge the receipt of your request and respond to the request within 7 days of the receipt of the letter.

What if the government refuses to answer your request?

If you are not satisfied with the response or no response was gotten, you have a right to seek judicial review in the High Court within 30 days of the denial of non-satisfaction.

What types of records can be obtained using FOIA?

FOIA applies to any “records or information” which are documents that are (1) either created or obtained by an agency, and (2) under agency control at the time of the FOIA request (section 1 (1) of the Act). This includes information contained in documents, records, visual or audio tapes, or computer entries. Other sets of information accommodated by the Act include maps, photos, digital data, emails, handwritten notes, etc. (See section 31 of the Act)

Does FOI request need to be in writing? 

Yes. Request for information must be in writing

Can I go to the court for judicial review before I request copies?

No. Your review is based on the application made and refused or unattended to by the agency.

Do I need to pay any costs in order to obtain copies of public records?

Yes. This is applicable when the agency responded to your request and stated the amount you have to pay before the processing commences. In Nigeria, a fee for any applicant is limited to standard charges for document duplication and transcription where necessary. In most instances, it should not be more than One Thousand Naira. See section 8 of the Freedom of Information Act 2011. Where it is exorbitant, the requester has a right to review the rate

Will identified commercial requester be made to pay high processing costs?

No. Undoubtedly, most requesters use FOIA as a direct input into data analytics, which is a profit-making enterprise. Despite suspected commercial use of FOIA, commercial requesters are not contemplated for a higher cost. Under the law, there is no provision that agencies should access fees that cover more of their costs as to commercial requesters than other requesters. Corporate bodies are entitled to use FOIA to further their financial interest without explaining for what purpose they are using FOIA and how they are profiting from it.

Who can sue under the law?

An applicant who wants information must make a formal letter to the agency, requesting the data. Under the FOIA, the request letter must be written by the applicant because it is only the person who made an application that can sue, save a case of illiteracy and disability. See sections 2 (6), 1(3), and 31 of the Freedom of Information Act 2011.

The agency has told me that it cannot find any records responsive to my request, can I sue?

Yes. The Act allows you to sue for denial of access to information that is wrongfully withheld or poorly documented. The onus is still on the agency to prove that they never created the information or had contact with the records.

Does the Freedom of Information Act 2011 repeal the Official Secrets Act 1966?

Generally, an Act cannot be impliedly repealed. Nevertheless, the manner Freedom of Information Act was crafted clashed with the objectives of the Official Secrets Act. By the principle of democracy, disclosures take precedence over other conflicting close-up legislations. This is because the legislature cannot have the intention to open and close simultaneously. Practically, it is an exercise of malpractice for the Official Secrets Act to be enforced in government departments when FOIA is alive.

Can the Federal Government legislate on Information?

Yes because information and archives are on the concurrent list of the Constitution. The concurrent legislative list is shared between the National Assembly and the State Assemblies Federal Government and the State Government are under one big ‘umbrella’ of the Nigeria state where both can shop for legislation in the concurrent legislative list. And any law made on the matter by the federal government has an overriding effect.

Whether a pre-action notice is dispensable in FOI cases?

Yes. It is the letter requesting information that serves the purpose of intention to sue. The requirement of a pre-action notice is merely ornamental in the right to information suit. Agreed that pre-action notice has long been accepted as part of our civil procedure wherever statutes prescribe that such notice should be given. See NNPC v FAWEHINMI (1998) 7 NWLR (pt. 559) 598 such a requirement is not applicable to the enforcement of the fundamental right to Information because the request for the information itself serves the purpose of the notice. See BABARINDE v. OGUN STATE UNIVERSITY (2001) 1 CHR 156. In the enforcement of the right to information, the old crusted procedure by which a potential litigant has to prepare and head a letter pre-action notice before instituting an action is ancient and misplaced and failure to satisfy such conditions cannot render a fundamental right to information incompetent.

Is FOIA a Media Law?

FOIA is more than a media law. It is a law passed to respond to the yearnings and aspirations of civil society practitioners and the general public. In the US, the law was passed to clamp down on public service bureaucracy while in Nigeria, the law was passed in response to people’s request to participate in their government.

Can government institutions disclose information with or without formal request?

Yes. Agencies are admonished to periodically publish duties of the organization, officers, decision-making procedures, manuals governing the department, budget, and subsidiary program on their website and notice boards.

Can public officer protection law protect public officers who refuse to release public records?

No! Public officer protection law will not avail any public officer because no law can be called in aid to protect against abuse of office.

Is Freedom of Information the first open government legislation in Nigeria?

No. Before the coming of FOIA, the right to information was guaranteed by the Constitution of 1963 which was later amended in 1979, 1999, and 2010. There are a plethora of legislations on access to information in Nigeria like the Finance (Control and Management) Act of 1958, Fiscal Responsibility Act of 2007, Public Procurement Act of 2007, National Archives Act of 1992, Nigeria Extractive Industry Transparency Initiative Act of 2007 and Statistics Act of 2007. The promulgation of FOIA only opened a vista for compensatory and review process to request information if the information being sought is withheld or denied

Can FOIA be instituted under FREP Rules?

Yes. FOI action can be instituted under FREP Rules 2009 as a fundamental right to information. See PRESIDENT AIGBOKHAN & 25 ORS v. NIGER DELTA DEVELOPMENT COMMISSION (NDDC) & 3 ORS (Suit No: FHC/B/CS/21/2015).

Can a Public Officer’s assets be accessed under FOIA 2011?

Yes. A public officer has a moral and legal duty to publish his asset profile for the benefit of the public. Public spending space is the graveyard of the right to privacy. Assets of a public officer is a private thing, but when it is stated in a prescribed form, signed by the Commissioner of Oath and counter-signed by the Judge of the High Court and thereafter lodged at the Code of Conduct Bureau, it becomes a public document.

Where the information sought is not in the custody of the agency what option is open?

After receiving the Applicant’s request and if the document cannot be found the agency has a duty to transfer the request to the office(s) where they think the information is situated and serve on the Applicant’s written notice of the transfer of request. See section 5 (1) of the Freedom of Information Act 2011.

Can a minor make a request under FOIA?

No, a minor cannot make request under FOIA save only through guardian or parents

Whether a public officer who denied applicant information can be convicted?

There is a prima facie case of conviction to a fine of 500,000 against any public officer who refuses to disclose information where a case of unlawful denial is established.

Who owns government information?

The treasure trove of information about the government belongs to the public and they seek it from the government only for administrative and custody purposes.

Is FOI a fundamental right?

Yes. The right to public information or record is a fundamental right. See AUSTINE OSAKUE & 12 ORS v. EDO STATE AGENCY FOR THE CONTROL OF AIDS (EDOSACA) B/17B/2014 & PRESIDENT AIGBOKHAN & 25 ORS v. NIGER DELTA DEVELOPMENT COMMISSION (NDDC) & 3 ORS (Suit No: FHC/B/CS/21/2015)

Can an individual institute an action under the Freedom of Information Act 2011?

The right to institute an action under the law rests with individuals, NGOs, the government, and other corporate bodies (whether registered or unregistered).