The Freedom of Information Act (FOI Act 2011) suffered setback in its passage before the needful was done by the legislative arm of government. Prior to its eventual passage, both the executive and the legislative arm of government were virtually playing hide and seek games with the rights of Nigerians because of selfish and corrupt interests. This is an analysis on the right of individuals to institute court proceedings if denied access to important information by the government or any public/private institution where public fund is used.
Ordinarily, the Nigerian National Assembly should have no problem in passing the FOI bill if there were no hidden motives which may be considered superior to the rights of Nigerians. Unfortunately the whole process was delayed and over-dragged unnecessarily during the administration of former president Olusegun Obasanjo, which means they have quite a number of ‘skeletons in their cupboard.’ However, the bill was eventually passed into law in 2011 by the National Assembly, thanks to some great minds among the lawmakers who cherished transparency and accountability of government.
The FOI Act is not an act or law that is draconian in nature, it is only seeking to ensure that the rights of Nigerians in accessing information concerning government programmes and activities or otherwise, are not forbidden or constrained somehow. It strives to guarantee the right of access to information held by ‘public institutions,’ irrespective of the form in which it is kept and this is applicable to ‘private institutions’ where they perform public functions or provide public services, or where public funds are being utilized.
Hence, any attempt to deny an individual’s right to freedom of information by the government or any other public institution is liable for prosecution in the courts of law. In other words, the refusal of any public officer may warrant instituting court proceedings against that person (public officer).
Section 2(1) of FOI act profess that “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, any agency or institution howsoever described, is hereby established.” It means on no account or condition should a public officer withhold information requested for by an individual on the pretense that an existing law prevents such an action.
Section 2 (2) further buttresses the imperatives of this Act: “an applicant herein need not demonstrate any specific interest in the information being applied for.” This connotes that there should be no special proposal or scrutiny to justify the request of an applicant in respect of any information needed by that person i.e., you don’t need to show any special interest before your request is granted.
One of the most important aspects of this Act is section 2 (3) which posits that “any person entitled to the right to information under this Act, shall have the right to institute proceedings in a court to compel any public institution to comply with the provision of this act.”
As a bona fide citizen of Nigeria, one is naturally entitled to access or assess any information in the custody of government or public/private institution as provided by this Act. It is also noteworthy that the FOI Act in section 3 (2) affirmed that, a public institution shall ensure the proper organization and maintenance of all information in its custody in a manner that facilitates public access to such information.
Therefore, it is right to categorically say that the refusal of any public officer to ‘give in’ to an applicant’s request concerning any information is liable for court prosecution. However, the provisions of this Act are not rigid; it is flexible enough to accommodate some conditions that are logically or reasonably presented by the affected public officer or institution to divulge confidential information.
On the issue of some ‘exempted materials’ that may lead to the denial or non-disclosure of an information by a public officer, the proviso of the FOI Act in section 28(1) states that, “notwithstanding anything contained in the criminal code, penal code, the official secret act, or any other enactment, no civil or criminal proceeding shall lie against any person acting on behalf of a public institution, and no proceedings shall lie against such persons thereof, for the disclosure in good faith of any information, or any part thereof pursuant to this act, for any consequences that flow from that disclosure, or for the failure to give any notice required under this Act, if care is taken to give the required notice.”
From the above proviso, there’s assurance of protection for any public officer in disclosing information done in “good faith.” Also, there should be no criminal or civil charges or prejudicial punishment meted out to any public officer who, without authorization disclose to any person, any information which he believes to be in favour of the public interest. Moreover, there is substantial protection for both the “giver and the receiver” of information under the FOI Act.
Another confirmation of the reason why a public officer must not withhold information to an applicant can be seen in section 29(1) which says: the fact that any information in the custody of a public institution is kept by that institution under security classification or is classified document within the meaning of the Official Secrets Act does not preclude it from being disclosed pursuant to an application for discussion thereof under the provisions of this act, but in every cases the public institution to which the application is made shall decide whether such information is of a type referred to in sections 12,13, 15, 16, 17, 18, or 20 of this Act.
Be that as it may, as earlier noted, the FOI Act is not rigid, and as such there is room for both the applicant and the giver (public officer) of information to complement each other’s effort in information sourcing and dissemination. The Act recognizes a range of legitimate exemptions and limitations to the public’s right to know, but makes these exemptions subject to a public interest test that, in deserving cases may override such exemptions.
To sum up, the FOI Act is not intended to replace any existing procedure of accessing information. The Act was enacted by the National Assembly to further complement and enhance the free flow of information among Nigerians concerning government programmes and activities etc.
Based on the above assertion which is rightly embedded in the FOI Act, an individual is entitled to institute court proceedings if there was denial of freedom of information on the part of the public institution or a public officer with no genuine justification for such an action; of which no justification can stand if it’s against the interest of the public on matters of transparency and accountability.
©2012 ~ Odunayo Bankole