By: President Aigbokhan, Esq
April 21, 2020
In the case of Dr. Chris Emenike Nlemoha v. West African Examination Council (WAEC) ((SUIT NO: FHC/L/CS/342/2019), the applicant sought for certified true copy of WAEC certificate of Uzodinma Goodhope Odiaka. The applicant has an uncertified copy of the WAEC result of Uzodinma Goodhope Odiaka and the result sheet in possession of the applicant is mutilated as the grades are not clear and or altered manually. The applicant therefore requires the Respondent to certify the document under FOIA 2011. The Respondent refused on the ground that the document is a private document. The applicant approached the federal high court seeking for an order of court compelling and directing the Respondent to within seven (7) days from the date of Judgment furnish the Applicant with Certified True Copy of WAEC result of Uzodimma, Goodhope Odiaka with candidate and certificate numbers 11649117 and SG904497 respectively. The main question under investigation in this case is whether an educational result or certificate is a public document that can be sought from institution under FOIA.
Personal information is an information that is private, secret and not to be disclosed to third party. Information privacy is concerned with control over access to private information or facts about oneself. Privacy right on information means that information held about the individual should be accessible to him or her only and animate or inanimate third party should be protected against disclosure or facilitating invasion of such personal data. Public record, document or information means a record in any form having been prepared or having been or being used, received, possessed or under the control of any public or private bodies.Agencies owe requesters the duty to produce or reproduce information recorded by them or can be reproduced from a computerized process.
The concern of this judgment is that privacy protection has been heightened even for records that is traditionally a public document. Much of students’ information in Nigeria is with public institutions who have built a wall round them rightly but school certificate which is issued by the institution to students are not private documents in the eye of the law.
This case is a profound enquiry whether a school certificate is a private document. The court in this case agreed that a result or certificate of result issued by a public institution to a candidate who sat for examination is a public document. It is important that record of information relating to private life of an individual be distinguished from record of individual or public activities with public institutions. Under the Freedom of Information Act 2011, a public institution can deny an application for information that contains requests for details of test questions, scoring keys and other examination data used to administer an academic examination. The emphasis is on test questions, scoring keys and data used to administer examination (See Section 19 (1) (a) of the FOIA 2011). These are information of the examination body that are kept from prying eyes to enhance standard. Importantly, school certificate issued by public institutions is a public document and does not enjoy any iota of privacy. In its judgment delivered on 7th day of November, 2019, Hon. Justice A. M. Liman effortlessly resolved the impasse over the status of school result or certificate this way;
“It is important to first identify what is an educational certificate or result of an examination conducted by the Respondent. A certificate is a document certifying that a Candidate has sat for an examination conducted by any examining body, including WAEC. The purpose of the examination is to qualify a Candidate for either admission into a Higher Institution, to become eligible to contest an election or to qualify for a particular job. This result is not only issued to the student or candidate but also copies of the result are submitted to public and private institutions to enable the bearer secure entry, or employment or nominations. In effect, this certificate is a public declaration to the world at large that the Candidate has sat and scored the marks stated therein.
The certificate therefore is the public declaration by the Respondent the original of which is issued out to the Candidate, a counter part of which is kept by the Respondent and certified copies are distributed to the individual institute or organizations to which the certificate may concern. How therefore could such a certificate become a personal information?. In my respectful view, the clear purport of section 14 of the Freedom of Information Act does not envisage that a certificate or statement of results issued to Candidates should be treated as personal information. They are public documents within the provisions of section 104 of the Evidence Act and therefore should be publicly available”.
There are two distinct fundamental requirements which must be met for privacy right to be sustained. First, there must be facts in existence in respect of which there is a reasonable expectation of privacy and secondly, the publicity given to those private facts must be considered highly “offensive to an objective reasonable person. In this case, the disclosure of academic result of an identified person which is already in public domain is legitimate. The implication of this judgment is that result or school certificate can be released to all without the consent of the bearer even though it bears identifiable details like name, address, age etc. the impact of non-disclosure amounts to breach of the law on one hand and withholding evidence on the other hand (where there is an ongoing trial).
For institutions with byzantine complexity like WAEC, the information being sought in this case is not one of the class of documents that requires the weight of public interest to justify its release. The court judiciously preserve its energy against frivolously weighing of the equities of privacy exemption which is plaintiffs use for the file and the defendants keeping of the file. The standard generated in this case is of great importance and condition upon which the judiciary and public can stand to gain life access to the enormous public records in the bowel of government or its agencies. Hon. Justice Liman interpreted the FOIA such that it makes sense to our citizens in distress and assures activist like Dr. Nlemoha of equal freedom and justice in the on-going case of the Nigerian certificate versus public institution integrity. The judgment is a positive watershed in the search for a balance between privacy and access and importantly, stakeholder’s understanding of the rights.
This case is an enormous encouragement to FOI activists, that there is a chance to play the privacy game but where it matters most, the court will stand its ground to give a meaning to its law as done in this case. The court must stand up on this judgment to pronounce in principle that access is to be placed above bureaucracy and façade privacy tracks. Disclosure of public documents must be allowed as food not drug. It is now time to consider an appropriate options of proper storage and retrieval of information or records that compliments proactive disclosure. This will no doubt simplify management of public information on one hand and public access to this information on the other hand in a way that projects the interest of the public and the times that we are in.
President Aigbokhan is a specialist in access and privacy litigation and is currently the Executive Director of Freedom of Information Counsel and writes from Benin City. He can be contacted on 08032683434