Laws are hardly fascinating collections of words. They don’t make leisure reads. The Freedom of Information Act is different. It is a clearly written piece of legislation and I enjoyed reading it. It also holds an ‘against all odds’ badge in our democratic history. We will always be grateful to the great minds that pushed for this bill.
The EIE coalition has been kind and provided what appears to be the bill that President Goodluck Jonathan signed into law. You may download it from its website, as I have. I have relied on this in providing highlights of the law.
Your rights:
You have the right to request for information, whether written or otherwise from a public institution. You don’t have to explain why you need the information and you can even go to court to compel the institution to comply. Illiterate or disabled applicants may apply through a third party. There will be a formal application that applicants may fill. In any case, you don’t even require a written application. You could verbally request that an authorised official of a public institution provides the information. (S)he will now write it and provide you a written application. This may not be advisable for evidentiary reasons.
Who can you ask?
You may demand from any ‘public institution’. These include the three arms of government: executive (e.g. President), legislature (e.g. lawmakers), judiciary (courts), as well as any parastatals supported by public funds (e.g. PHCN). More importantly, you may demand for information from private bodies providing public services (e.g. ppps), who perform public functions or utilise public funds. All public institutions are required to keep records of their operations and businesses. Specific information is provided in section 3 (3) of the law. It is now a criminal offence to wilfully destroy records or alter them.
What you may be told:
The public institution to which the application is directed may provide the information to the applicant within 7 days of the request. It may also deny the application and give written notice of such denial within the same 7 day period. This notice must explain why it denied your request and state whether the information exists. Where the institution fails to give notice within the 7 day period, it is deemed to have refused to give access. If the public institution thinks that another institution has greater interest in the information, it must transfer the application within 3-7 days and also inform you. This period is not set in stone. It may delay the transfer if it can show that the application is for a large number of records and that the 3-7 day period will reasonably interfere with its operations, or that it requires more time to make consultations.
When can a public institution say no?
You cannot invoke the FOI to receive published material, or material available for purchase or public reference materials. You cannot receive access to ‘personal information’. This is defined in section 15(1) and includes information for tax assessment; files on financial, medical, or educational services from public institutions. A public institution can also deny information that contains trade secrets, financial information, proposals and bids for contracts, grants, etc. Additional information is provided in section 16 (1). You can ask for a waiver of these provisions where public interest ‘clearly’ outweighs the protection of the individual’s privacy. Individuals or institutions may also consent to provision of the information.
A public institution may also refuse access where disclosure is injurious to the conduct of international affairs and the defence of the Federal Republic of Nigeria; or where it would derive a person of fair trial or disclose the identity of a confidential source. Additional cases are in section 13 (1). You may not receive information on test questions, course or research materials prepared by faculty members scoring keys for examination, library circulation and records identifying library users, among others. Other information is provided in section 20. The same public interest waiver applies to these cases.
For example, you cannot demand for a copy of President Jonathan’s Ph.D. thesis except the court agrees with you that public interest outweighs his private rights.
What can you do if a public institution says no?
Where the institution fails to give notice within the 7 day period, it is deemed to have refused to give access. Where you have been refused, you may apply to court for a review within thirty days. The court may extend time to apply within that period. Where wrongful denial of access is established, the defaulting officer or institution shall be liable to a N500,000 fine on conviction.
Money matters – Fees:
The only fees required under the FOI are standard charges for duplication and where necessary, transcription. This does not exclude charges under any other laws.
Fascinating (lawyer) stuff:
Burden of proof of authorised denial is on public institution. This means that all you have to do is say that the institution refused your application and leave it to show that it the refusal was valid. The Official Secrets Act is no longer an excuse to restrict access.
Yes, I agree – fun lawyer stuff, right? *yawn*
A public institution cannot deny access to part of a record containing results or product of environmental testing carried out by or on behalf of a public institution.
Downside 🙁
It looks like each state has to sign its own Freedom of Information Law. The National Assembly can only make laws for the public records of the federation and not the states.
This is not legal advice but contains my opinion on the subject. Please speak to your lawyer before acting on the information provided.
Thank you! You’ve provided a great public service – breaking this down into non-legalese. If the law is enforced, it’s a huge and welcome leap forward for Nigeria.
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Good work. May I ask a question or more here? As most of the nation’s citizens mainly deal with the states and not with the Fed. will this help as much if any of the states refuses to sign this sunshine laws/open records as they are called? Can’t or doesn’t the Fed. government have the power to order every state to composarily sign this laws. Freedom of press does not apply only to the Fed.level, the states are under the Fed. though they have their own laws but they are aswerable to the Fed government. On what ground can/may a state refuse to sign these laws? Thanks for the work.
Hi Bazooka5,
Thank you. I think the law was so well written that it was all too easy to summarise. With our federal constitution, FGs can legislate on matters in the exclusive list (and it will automatically apply to states). One example is on company law. So we have the Companies and Allied Matters Act that applies to everyone, federal and state . There is the concurrent legislative list, which FG and states can both make laws. Public records come under that list. Ordinarily, the principle of law in this area is that where the FG makes a law on a matter that is included in this list, the state’s law cannot contravene the FG’s law. Therefore, I would have said that while the FG cannot make the states legislate, states can’t make laws that contradict the FOI Act. The language of the 1999 Constitution for public records (Concurrent Legislative List – Second Schedule to the Constitution, Part II, items 4&5) says: 4. The National Assembly may make laws for the Federation or any part thereof with respect to the archives and public records of the Federation.5. A House of Assembly may, subject to paragraph 4 hereof, make laws for that State or any part thereof with respect to archives and public records of the Government of the State.So I think the FOI Act will apply to states generally. They will probably have to make their own laws for areas that the law does not cover.So from a quick overview of the law:1. Even if states refuse to sign, the FOI will still generally apply2. FG can compel a state just as you can. Any one can. 3. The grounds are the same as contained in the Act itself. Most of them are subject to the public interest waiver.Aside: I am excited about this law. Hopefully, someone will test it soon.And thank you too.
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“A public institution can also deny information that contains trade
secrets, financial information, proposals and bids for contracts,
grants, etc….”
This is a lovely article sweetheart, i want to thank you for sharing all this with us as i would have never gotten around to reading the bill for obvious reasons- i’m not a lawyer and have a phobia for cryptic legalese. Anyways, about the above quoted, doesn’t exempting “financial information, proposals and bids for contracts..” defeat the whole point of the bill? It really has me perplexed, perhaps we Nigerians are being taken for a ride again?
Thanks for this…
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hello funmi, I think what Sec 15(2) of the FOIA actually reads is that a public institution can deny information with regards to a part of the record containing “the result of a product or environmental testing carried out by or on behalf of a public institution” and not the reverse as you stated.