Introduction
Openness, transparency and accountability are central to modern governance. Without all of this democracy dies in secrecy. But, openness, transparency and accountability alone do not make democracy or governance to flourish. The recognition that democracy flourishes when citizens engage with the democratic process and legitimize governance in a way that makes democratic governance truly representative. The absence of democratic engagement creates some
democratic deficits that make governance hollow. One way of ensuring that governance doesn’t become hollow and or democracy dying in secrecy, openness and transparency are offered as “lifelines” and as principles that guide governmentality, define and shape citizens’ insistence on access to the inner workings of government, including ways that citizens are granted access to public records. These principles – openness and transparency- are realizable not only in the way governmentality becomes responsive but in the way that it guarantees access to information.
Since openness and transparency chiefly underline access to information, the “explanatory memorandum of the Freedom of Information Act, 2011 highlights the primacy of both principles by providing that the “Act makes public records and information more freely available, provide for public access to public records and information, and protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes”. When public records and information are made freely available to citizens, governmental processes and the inner workings of government are not only open to citizens’ scrutiny, they are also subject to deliberations that legitimize government actions. The essential point here is that closing off governmental processes, either by restricting access to public records and information or allowing partial access to public records and information restricts openness and transparency; or where access to public records and transparency is allowed, the democratic legitimacy of governmental processes is enhanced through openness and transparency.
Thus, openness and transparency are essential in strengthening the relationship between the governors and the governed, as granting citizens’ access to public records and information provides them invaluable insights into the inner workings of government. As the scholar, Robert Dahl, correctly captures it, knowledge of “…the operation of the government is sufficiently open to public view and simple enough in its essentials that citizens can readily understand how and what it is doing”.
Given the foregoing, it is clear that openness and transparency are both the torches that shine on the inner workings of government and the invisible hands that lift the veil of secrecy, either to expose the chicaneries inside government.
Democracy is both participatory and representative. The successes of any democracy can be measured against the types of laws that are enacted to promote and enhance citizens’ participation in the democratic processes. Since power corrupts and absolute power corrupts absolutely, the democratic processes have to be protected against power and against those who abuse power. Laws as the Freedom of Information Act offer citizens the legal power to inquire into governmental affairs, enhance inclusion, participation, transparency, openness and accountability, and citizens’ ownership of government. The only way citizens can hold rulers to account at elections, and punish them where they err, is for citizens to own the democratic processes, scrutinize and control rulership.
All of this is possible when the right of access to public records is legally affirmed, public records and information are made more freely available, and those entitled to the right to know are not encumbered by institutional arrangements and or deprived of exercising their rights by the restrictive instrumentality of the law. The right of access to public records, or the right to know, is essential to the triumph of democracy, for without this right democratic governance is hollow and meaningless; and for without the exercise of the right to know, the government is shrouded in secrecy, citizens are either shut out of it or kept in the dark as to the steps taken to arrive at some governmental actions, thus depriving them the power to evaluate such steps and
actions.
The Nigerian postcolonial state and its rulers always seek to swallow the citizens, denying them not only their existence but also their capacities to control and own the state and the governmental processes.
To achieve this purpose, freedoms of citizens are either routinely threatened or outrightly denied. So, empowering the citizens means to pose freedoms and rights as forms of political power.
Accessibility
The constitution in any democracy protects citizens’ freedom of expression, which in every practical sense allows citizens to have their say in the governance of their country. By ensuring the protection of the hallowed freedom, citizens should have unfettered communication with those who exercise real political power on their behalf. While ultimate power resides in the citizens in theory, those who govern exercise power in practice on behalf of the electors- the citizens -often ensure that this communication doesn’t happen. When citizens’ freedom of expression or citizens’ speech acts are not encumbered by power or by extra-constitutional instruments, the participatory character of democratic governance is accentuated. The right to know, or the right of access to public records and information, underlines the participatory nature of the governance process.
Freedom of expression is central to the enunciation of democratic citizenship. Citizens need not only be aware of how they are governed, but they also need to be equipped with the required information that can help them contribute to the development of their country. So, information is key to citizens’ participation in governance and central to citizens’ contributions to their country’s economic progress and democratic growth. Thus, the type of information democracy which
freedom of expression ( as say in Section 39 (1) of the Constitution of the Federal Republic of Nigeria (with alterations), which provides that “every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information, without interference”) guarantees can be best expressed where citizens are at the very core of governance. If the government is still what it is in the Lincolnian sense, the “government of the people, by the people, and for the people”, it stands to reason that the right to access to public records and information ( essentially an aspect of the larger freedom of expression) remains one of the essential pillars of constitutional democracy.
The right of access to information simply means the unfettered access of citizens to public records and information held by, under the control, organization and management of public institutions. The right of access to information is about the constitutional power of citizens ( See Section
39(1) of the Constitution cited above) to compel the government to disclose public records in its possession, as it is about the power of citizens to
scrutinize the inner workings of government in a manner that is consistent with existing laws. The essence of access, therefore, is to ensure that government does not function in secrecy, promote an opaque culture that allows corruption to flourish inside and outside
government.
What the FoI Act says about access to records or information
A community reading of Sections 1 (1) and 3 (1) of the Freedom of Information Act, 2011 grants citizens the right of access to records.
Section 1(1) provides: Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information,
whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution howsoever described, is established.
And Section 3 (1) provides: An application for access to a record or information under this Act shall be made in accordance with Section 1 of this Act.
A careful reading of both sections shows that the right to know and the right to request access to public records are established by the Act.
Also, the FoI Act 2011 further proceeds to highlight the following principles that define and shape it: (1) Every citizen has the right to know and s/he doesn’t have to demonstrate a specific interest in the information being requested or show a reason why s/he seeks access to public records or information.
See Section 1(2); (2) Refusal to grant access to public records or information must be justified with reasons, with reference to the Act itself. See Section 7(1) and (4); (3) Presumption or assumption in favour of disclosure and burden of proof are imposed on public institutions, subject to Sections 6, 7 and 8 of the FoI Act.
See Sections 4(a) and (b) and 24; (4) Equality of applicants. See Section 1(1); (5) Third-party right to request access to information is established, where the applicants are illiterate or disabled applicants “who by virtue of their illiteracy or disability are unable to make an application for
access to record or record in accordance with the provisions of subsection 1 of this section”. See Section 3(3).
From the foregoing, it is crystal clear that the Act establishes “the right of any person to access or request information whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution however described”; and as already expressed above, an applicant is under no legal obligation to “demonstrate any specific interest in the information being applied for”.
This should be noted. Access to public records under Section 1 does not mean access to the law courts as Ademola J correctly held in PPDC v NAFDAC and Anor (Unreported Suit no FHC/ABJ/CS/760/13), “Section 1 of the FOI Act as rightly argued by the Defendant, contemplates access of records held by agencies and not access to the law courts”.
Beyond providing access to public records and information, the Act imposes the duty of keeping and maintaining public records or information and proper organization of information on public institutions. See Section 2(1) and (2). The right to institute an action for denial of the right access to public
records under the Act is guaranteed. See Sections 1(3), 2(6) and 20 of the Act.
Records or information that can be accessed under the FoI Act Records or information that can be accessed under the Act are stated in
Sections 1 (1), 2 (3), 9, 31(a), (b), (c), (d) and (e), and are reproduced herein:
Section 1(1): Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information,
whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution howsoever
described, is established.
Section 2(3): A public institution shall cause to be published in accordance with subsection (4) of this Section, the following information – (a) a description of the organization and responsibilities of the institution including details of the programmes and functions of each division, branch and department of the institution;
(b) a list of all –
(i) Classes of records under the control of the institution in sufficient detail to facilitate the exercise of the right to information under this Act,
and
(ii) Manuals used by employees of the institution in administering or carrying out any of the programmes or activities of the institution;
(c) a description of documents containing final opinions including
concurring and dissenting opinions as well as orders made in the adjudication of cases;
(i) substantive rules of the institution
(ii) statements and interpretations of policy that have been adopted by the institution,
(iii) final planning policies, recommendations, and decisions;
(iv) factual reports, inspection reports, and studies whether prepared by or for the institution;
(v) information relating to the receipt or expenditure of public or other funds of the institution;
(vi) the names, salaries, titles and dates of employment of all employees and officers of the institution;
(vii) the right of the state, public institutions, or of any private person(s)
(viii) the name of every official and the final records of voting in all proceedings of the institution;
(e) a list of –
(i) files containing applications for any contract, permit, grants, licenses or agreements,
(ii) reports, documents, studies, or’ publications prepared by independent contractors for the institution, and
(iii) materials containing information relating to any grant or contract made by or between the institution and another public institution or private organization.
Section 9:
(1) Every government or public institution shall ensure that it keeps every information or record about the institution’s operations, personnel, activities and other relevant or related information or records.
(2) Every government or public institution shall ensure the proper organization and maintenance of all information or record in its custody, in a manner that facilitates public access to such information or record under this Act.
Section 31 (a), (b), (c), (d) and (e):
“Public record or document” 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 relating to matters of public interest and includes any –(b) 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 relating to matters of public interest and includes any –(c) label marking, or other writing that identifies or describes anything of which it forms part, or to which it is attached by any means;(d) book, card, form, map, plan, graph, or drawing, (e) photograph, film, negative, microfilm, tape, or another device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced.
A community reading of the above-mentioned Sections clearly suggests that there’s no limit to the public records or information that can be accessed, save for the exempted records, documents and information stated in Sections 11, 12, 14, 15, 16, 17 and 26 of the Act, an applicant can have right of access or request information. In fact, the ‘Exploratory Memorandum’ and the Commencement’, Marginal Note of Section 1 and the interpretation provisions of Section 31 of the Act support our point.
Deniability
The Act provides in Section 4 that “where information is applied for under this Act the public institution to which the application is made shall, subject to sections 6, 7, and 8 of this Act, within seven (7) days after the application is received” must make the information available or give access to the information requested for. Refusal to make the information requested for, or give access to public records, within seven (7) days stated by the Act, is deemed as denial or refusal of access.
Clearly, deniability is explained by Section 7(4): “Where the government or public institution fails to give access to information or record applied for under this Act or part thereof within the time limit set out in this Act, the institution shall, for the purposes of this Act, be deemed to have refused to give access”.
By virtue of Section 7(1), the public institution which refuses or denies access to public records or information must give notice to the applicant, stating (a) the grounds for the denial or refusal, (b) the specific provisions of the Act which relate to the denial or refusal; and (c) that the applicant has the right to challenge its refusal of access in the law court. In giving an interpretation to Section 7(1), the court recently held in PPDC v NAFDAC and Anor (Unreported Suit No FHC/ABJ/CS/760/13) that the failure of NAFDAC to furnish the Applicant with the information and documents sought is a wrongful denial of information under Freedom of Information Act, 2011.
Further, in the case of PPDC v HON. MINISTER OF THE FCT and Anor ( Unreported SUIT NO: FCT/HC/CV/M/3057/13) Justice Olukayode Adeniyi held: “I have examined the information requested by item (vi) of the Schedule to this application. The Applicant, thereby, simply request the Respondents to supply it with a statement of account showing remittances made by each of the companies from inception of their engagements to the date of the application. By my understanding what the Applicant here requests for is not financial statements of third parties, but such that are kept by the Respondents, in whatever nomenclature or names, that show monies remitted to them by the companies they engaged to collect tolls on their behalves since the inception of the controlled parking scheme in the Federal Capital Territory. I agree with Mr Chigbu that the Respondents’ learned counsel grossly misconceived the clear provision and intendment of section 15 (1) (a) of the Act. By no stretch of interpretation could it be said that the provision covers or exempts the kind of information the Applicant had requested in item (vi) of the schedule. I so hold. As correctly contended by Mr. Chigbu, in order to establish that the information requested for in item (vi), are such that the Respondents are exempted from supplying to the Applicant, they must show that the information contains trade secrets or commercial and financial information which must be proprietary, privileged or confidential; that the information is in the possession of a third party and that the disclosure of such information may cause harm to the interest of the third party.
By the provision of section 24 of the Act, the burden of establishing that a public institution is authorized to deny an application for information or part thereof shall be on the public institution concerned. In the instant case, the Respondents have failed to discharge this burden. As such, I am satisfied that this application is meritorious and the same is hereby granted as prayed. Accordingly, it is hereby declared that the failure of the Respondents to grant the Applicant access to the information and/or documents sought by letters written to the Respondents respectively on 13/12/2012, amounts to the wrongful and unlawful denial of information under the Freedom of Information Act, 2011. Pursuant to the provision of section 25 of the Act, the Respondents are hereby further ordered and compelled jointly and or severally, within twenty-one (21) days from the date hereof, to grant the Applicant access to all the information
and/or documents sought as specified in the schedule to the Application already set out in the foregoing. I make no orders as to costs”.
From the authority of the decided cases cited above, it is clear that refusal of access to information and or denial by a public institution to disclose public records must conform with the provisions of Section 19, which provides: A public institution may deny an application for information that contains information pertaining to –
(a) test questions, scoring keys and other examination data used to administer an academic examination or determine the qualifications of an application for a license or employment;
(b) architects’ and engineers’ plans for buildings not constructed in whole or in part with public funds and for buildings constructed with public funds, to the extent that disclosure would compromise security;
and
(c) library circulation and other records identifying library users with specific materials:
(2) Notwithstanding anything contained in this section, an application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury that disclosure would cause.
However, in spite of the salutary provisions of Sections 4 and 19, the public institution can refuse or deny access to information held by that public institution IF the information requested for falls under the exempted provisions of Sections 11, 12, 14, 15, 16, 17 and 26 of the Act. It should be noted that the foregoing exemptions’ provisions of the Act are not cast in stone; in fact, they are ( save for Sections 16, 17, and 26 which are not subject to the “public interest test” ) subject to the “public interest” test stated in the provisos of the sections cited above.
It is noteworthy to mention that the Act does not define the phrase, “public interest” in the interpretation provisions of Section 31; but what constitutes “public interest”, in the context of the Act, is for the court to decide. However, we can find guidance in the dictionary and in decided cases from other jurisdictions. According to the Black Law Dictionary 7th Edition, “public interest” means ” (1) The general welfare of the public that warrants recognition and protection; (2) Some things in which the public as a whole put in stake; especially an interest that justifies governmental regulation”.
In State of Uttaranchal v Balwant Singh Chaufal & Ors (2010; Civil appeal nos 1134-1135 of 2002), Per Justice Dalveer Bhandari, the Indian Supreme Court defined public interest as “something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiously or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government”.
Another important authority that deals with public interest is the U.K. Supreme Court case of Evans v Attorney General ( 2015) 1 AC 1787; but the ratios in this judgment are beyond the scope of this paper. One point that can be taken away from the judgment is how the court navigated the balance of convenience of public interest in denying access to information and granting access to information – both on the basis of public interest. Finally, for us, what amounts to the public interest is a question of fact, to be decided on the merit of cases brought before the courts.
Penalties for Defaulters
The Act provides an ample provision against defaulters in: Section 7 (5): Where a case of wrongful denial of access is established, the defaulting
officer or institution commits an offence and is liable on conviction to a fine of N500, 000.
In addition to the above section, the court shall by virtue of Section 25 order that the information be released.
The question to be posed is twofold. Firstly, is it legally justifiable to criminalize a defaulting officer who neglects to act within the ambit of the Act, seeing that it is a public institution by virtue of Section 2 of the Act “that records and keeps information, organizes and maintains all information in its custody in a manner that facilitates public access to such information? Secondly, is the fine of N500,000 a criminal conviction on the record?
Our answer to the first question is to have recourse to Section 1 (1), which imposes the statutory duty of granting right of access to records on “any public official, agency or institution”. By the simple construction of Section 1(1), the use of the conjunction, “OR”, any public official, agency or institution”, simply means that any public official, agency or institution shall apply singularly or in combination.
So, it is proper and consistent with the legal Maxim, “Qui facit per alium facit per se” – he who acts through another does the act himself -for the act to criminalize public officials for the wrongful denial of access to public records or information. After all, agency and public institutions are juristic persons that act through non-juristic public officials.
A fine is a financial penalty imposed on conviction, either instead of, or in addition to any other sentence. Section 7(5) which creates the penalty for wrongful denial of access does not give the courts the power to impose a custodial sentence, so the court must stay within the precinct of its power. To answer the second question above, one needs to understand that Section 7(5) creates the offence of wrongful denial of access and imposes the conviction of a fine as a penalty for the breach of the Act. If the conviction to a fine of N500,000 is the final decision in which a defaulting officer is found guilty, it thus stands to reason that a fine is a conviction on the record. We rely on the Supreme Court authority of Theophilus Kure v Commissioner of Police (2020) JELR 87099 Per Adamu Galumje JSC.
Finally, it should also be noted that it is a criminal offence punishable on conviction by the court with a minimum of one-year imprisonment for any public
official or public institution to which the Act applies to willfully destroy any records, doctor or alter documents before they are released to any applicant.
Conclusion
The Freedom of Information Act 2011 lends itself out as a legal instrument for addressing corruption inside government and as the choice torch for those who have dedicated their lives to shinning the lights at the darkest recesses of public institutions in Nigeria. The initial hopes that activists nurtured in using the Act to further their public interest works have long dimmed. The reason for this has nothing to do with the Act, considering that the Act is a sui generis legislation in the same class as the Fundamental Rights Enforcement Rules (FREP) that can’t be shackled by the “locus standi” rule that dogs many public interest litigations, where finding of sufficient interest of applicants becomes the question of jurisdiction. Section 1(2) of the Act, which deals with the fact that “an applicant needs not to demonstrate any specific interest in the information applied for”, squashes the usual insistence of the court to finding locus standi of applicants in public interest matters.
Activists have to be creative in using the Act to shine torches into the dark recesses of governments of our country – after all, democracy dies in darkness. The present lethargy in activism in our country has the sad the portent of turning the Act into a dead law if it is not used constantly and creatively.
