Sunday, May 28th, 2023, marks the 12th anniversary of the Freedom of Information Act (FOIA 2011). Nigeria became the fifth African nation with a freedom of information law when on May 28, 2011, the seal was put on the bill. Although the FOI Act is not the only legislation that allows access to information in Nigeria, its emergence was to create a law that caters to the documentation of public records, compliance reporting, review, and enforcement. The law came principally to give bite to disclosure by establishing a legal right to such demand and review procedures. It is meant to simplify public access to governance and to allow the citizens a peep into government decisions and proposals.
Ironically, the purposes for passing the Act are endangered because ministries, departments and agencies, MDAs are not complying with the law. Instead of following the provisions of the Act, government agencies are defending suits rather than releasing records. Payments of lawyers to defend FOI requests are topping MDA’s budgets, when litigation ought to be the pill and not the snack of FOI applications. Some agencies give pseudo-replies to FOI requests. To plug the hole, the Attorney-General of the Federation, AGF, needs to audit MDAs’ responses to FOI requests and litigation.
It is not enough to say MDAs responded to a request; the content of the response must be placed side-by-side with the request submitted. Not all requests must be treated positively, but in all cases, notice must be issued (whether of approval or denial). When the information sought for is exempted, the requester can be informed by a notice of the status of the request relying on the section of the law that exempts the class of information. Failure to issue the notice means MDAs deliberately refused to give information or records and that is a breach of the law
The most ironic case of FOI Counsel is our request to the office of the Attorney General of the Federation (AGF). It was for records on local and international donations and grants to Open Government Partnership between 2015 and 2018. The AGF informed us that he never received any foreign donation for the OGP. The irony is that the response came 10 weeks after the request was made which is outside the response period. It is difficult to understand why men cannot obey the law they made or supervise. The FOI Act is not suffering from lack of stakeholders’ patronage, but government ineptitude.
FOI Counsel does not believe that FOIA needs to be legislated upon at the sub-nations, but we commend those who have taken the initiative to influence the passage of the law in various states like Delta, Kaduna, Imo, and Ekiti State even though there are some parts of the law at the sub-national that need to be reviewed.
Beyond court fines in lieu of imprisonment, there should be a letter of caution and sanction from the AGF for defaulting MDAs. The current court fine for defaulters is not beneficial to FOI requesters as the fine goes back to the government. Strengthening the implementation of the law requires more hands for judicial review and the support of stakeholders. As part of our activities to celebrate FOIA @ 12, we are organizing a Litigation Surgery and Award first to build the capacity of users of the law and also to reward sterling contributions to the development of the usage of FOIA. There will be hybrid training for young lawyers and three persons will be awarded. Just as we litigate against the infidels we must commend the faithful. The awardees are Hon. Justice Mohammed Lima for pronouncing access to information a fundamental right, the Media Rights Agenda (MRA) for leading civil society in the campaign for the enactment of FOIA, and the Juritrust Centre for organizing a continuous education on FOIA for judges. The event will also be used to launch our newsletter and website