Access to Information: Constitutional Perspective

By Alimi O. Adamu

Freedom of Information (FOI) deals with right to access information held by public bodies, with the objective of promoting open government. Advocates argue that information held by government and its institutions, is held on behalf of, and for the benefit of the public. Democracy works better when people are part and parcel of governance, and governance has meaning when the people have access to information on the workings of government and its institutions.

Governments the world over and through the ages have nurtured a culture of secrecy in governance. Barack Obama, when he assumed office of president of the USA in 2009, acknowledged the underlying fear behind this secrecy,  and enjoined that “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” He issued an Executive Order directing government agencies to approach FOI requests with a “presumption in favor of disclosure”.

While FOI may promote open government, no FOI regime in the world provides unfettered access to public information. Certain information would be legitimately withheld to protect public and other interests. But the legislation should clearly delineate the information that is exempt from disclosure, and provide an interface between the applicant and the custodian thereof, to determine whether discretion to withhold is properly exercised.

There are two schools of thought on access to public information. One would grant access on condition that the applicant established the need or justification for receiving the information. There would be myriad of reasons to deny application, e.g., the request is frivolous or vexatious, or that the requester has not demonstrated need for it. The burden is on the applicant to establish justification, or legitimacy of the request. Typical example is the Israeli FOI Law.

The second approach views access as a fundamental right. The applicant is entitled to access or request public information as of right, i.e., irrespective of need or motive. This is the model adopted by countries like United States, India, Liberia and Nigeria. Here, the burden is on the public institution to show, by compelling evidence, why access should be denied.

Historical Context

The first FOI legislation was passed in Sweden in 1766, with the objective of abolishing political censorship and of granting public access to government documents (The World’s First Freedom of Information Act, Anders Chydenius’ Legacy Today).

According to UNESCO, as at 1990, only 13 countries had adopted national rights to information laws. Today, over 100 countries across the world, including at least 10 African states, have enacted FOI legislations. The Economic Community of West African States (ECOWAS) is currently working towards the adoption of a binding Supplementary Act for a Uniform Legal Framework for Freedom of Expression and Right to Information.

Prior to the enactment of the FOIA in 2011, public information in Nigeria was regulated by various laws with the sole purpose of limiting public access. The most restrictive of the laws was the Official Secrets Act, which makes it mandatory that unless an authorizing officer approves release of classified information, same could not be given out without the releasing officer being penalized. Mere possession of such information was punishable by imprisonment of up to 14 years.

Previous attempts to provide open access were resisted by those who stood to benefit from keeping the people in the dark about how the government operates. For example, Section 40(4) of the 1995 Draft Constitution provided that: “Every citizen of Nigeria shall be entitled to know and be informed of the activities of the state and of every organ and its agencies.” Needless to say, the provision never saw the light of day.

Constitutional Implications of the Freedom of Information Act, 2011

One of the most vexing questions o the Freedom of Information Act, 2011 is, to what extent it applies to the States.

Section 4 of the 1999 Constitution spells out the legislative powers of the National and State Houses of Assembly. Under Subsections 4 (2) and (4) (a) respectively, the National Assembly may make laws for “peace, order and good government of the Federation” with respect to matters included in the Exclusive Legislative List (Second Schedule Parts I) and the Concurrent Legislative List (Second Schedule Part II).

On the other hand, Subsection 4 (7) empowers the State House of Assembly to make laws for the “peace, order and good government of the State” with respect to any matter not included in the Exclusive Legislative List, and on any matter set out in the Concurrent Legislative List.

Any inconsistencies in the foregoing concurrent powers of the National Assembly and the State Houses of Assembly to make laws, would be resolved in favour of the National Assembly, to the extent of said inconsistencies, and provided the Federal legislation is meant to cover the field.

Proponents of Federal authority argue that FOI is a legitimate exercise of the power of the National Assembly to make laws for peace, order and good government. However, the power is with respect to matters included in the Exclusive List only. Opponents counter that as Freedom of Information is not enumerated on the List, or on the Concurrent List; it is a residual matter in respect of which only the States may legislate, pursuant to Subsections 4 (7) (a) and (b).

The Federal power argument presupposes that the National Assembly has unlimited authority to take any legislative initiative in the guise of making laws for peace, order and good government of the Federation. This reasoning would dilute, if not totally eliminate, the residual legislative powers of the States. More ominously, it could lead us down a dangerous precipice, a harbinger of a totalitarian state. Unless proponents are able to locate FOI in either Part I or II of the Second Schedule to the Constitution, this argument will not pass the muster.

Another Constitutional basis of the FOIA is argued around Items 4 and 5 of the Concurrent Legislative List. Under item 4, the Federal Legislature is empowered to make laws for the Federation or any part thereof with respect to public records of the Federation, while Item 5 empowers the House of Assembly to make laws for public records of the Government of the State.

The powers of the National Assembly and the Houses of Assembly to legislate with respect to public records are concurrent; as a result, the laws made by the former would prevail to the extent of any inconsistencies. Notwithstanding the foregoing Items, Freedom of Information deals with much more than public records.

FOIA defines public records in the context of a piece of evidence or information constituting an account of past event or transaction. Freedom of Information on the other hand is vested right to access or request information held by a custodial institution, as surrogate of the applicant. It recognizes that the institution holds the information in performance of an office for which it has to account to the public. In other words, it is fundamental rights in the same vein as freedom of speech, freedom of worship, freedom of property, etc.

The purpose of the FOIA also shows that it is not merely about management of public records. The Long Title states that it is to “make public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personnel privacy, protect serving public officers from adverse consequences of disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes and for related matters”.

It follows therefore that freedom of information is not limited to right to access to public records.

In addition to Subsections 4 (2), and (4) (a), the National Assembly is authorized to make laws with respect to any other matter which it is empowered to make laws in accordance with the Constitution [Section 4 (4) (b)]. There is similar provision contained in Subsection 4 (7) (c), with respect to the power of the State Assemblies to make laws for the State.

Section 19 of the Constitution provides that Nigeria shall respect international treaty obligations, while Section 12 (2) empowers the National Assembly to make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.

The UN General Assembly Resolution 59 (1946) recognizes access to public information as an integral part of the fundamental right of freedom of expression. Article 19 of the Universal Declaration of Human Rights (1948) provides that the fundamental right of freedom of expression encompasses the freedom “to seek, receive and impart information and ideas through any media and regardless of frontiers”.

Upon being admitted to membership of the United Nations, Nigeria adopted these provisions as part of her treaty obligations and domesticated same in Section 39 of the 1999 Constitution, which guarantees the fundamental rights to freedom of expression. It can therefore be argued that the enactment of the FOIA is a legitimate exercise of the power of the National Assembly to make laws to enforce Nigeria’s treaty obligations.

The Constitution provides in Section 14 (2) (c), (Fundamental Objectives and Directive Principles of State Policy), for the need to ensure the participation by the people in their government.

A similar provision was interpreted by the Supreme Court of India in, Reliance Petrochemical Ltd. v Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. and others, where it held that right to know is a necessary ingredient of participatory democracy. The expression cannot be limited to mere absence of bodily restraint. It is wide enough to expand to full range of rights including right to hold a particular opinion and right to sustain and nurture that opinion. For sustaining and nurturing that opinion it becomes necessary to receive information.

Also, in the case of S.P. Gupta v Union of India, it held that right to know is implicit in right to free speech and expression. Disclosure of information regarding functioning of the government must be the rule.

James Madison, (the 4th President of the United States) wrote in a letter to William T. Barry (1822) that: “A popular Government without popular information, or means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both. Knowledge will forever govern ignorance; and a people who mean to be their own Governors, must arm themselves with the power knowledge gives.”

Thus, the Government is not only under an obligation to respect the Fundamental Rights to freedom of expression, but equally under an obligation to ensure conditions under which the Rights can be meaningfully and effectively enjoyed by all.

Ordinarily, the foregoing Section 14 (2) (c) argues for the concurrence of power to legislate, between the Federal and State governments, because they both are under obligation to promote those principles. However, item 60 (a) of the Exclusive Legislative List gives the National Assembly, power to establish and regulate authorities to promote and enforce the observance of the Fundamental Objectives and Directive Principles.

Issues of Concern under the Freedom of Information Act

1.         Any person

FOIA provides the right of anyone to access or request information. Does that mean that a fugitive from justice be entitled to request or access public information? Courts in the US have held that fugitives are not entitled to make FOI requests (see, Doyle vs. Dept of Justice, 494 F. Supp. 842 (D.D.C. 1980).

2.         Covered Institutions

S. 2(7) defines covered institutions to include “private companies utilizing public funds, providing public services or performing public functions”. This means that once a private entity performs public service or receives public funds, no matter how microscopic the degree of exposure, all its records or information is subject to FOI request. This is certainly not the intention of the Act.

Compare this to Section 3.1 of the Liberian FOI, which relates to “All public information held by public bodies and those held by private entities in respect of public funding received or public services provided.

3.         Failure to Delineate or Empower an Authorized Officer 

The Act does not expressly designate a particular individual or office that applications may be directed to but speaks in terms of public institution receiving the application. However, it presupposes that there shall be an authorized officer for purposes of compliance (e.g., Section 3(4) on oral application).

4.         Failure to Distinguish between Access and Request

“Request”, entails a formal application to the institution, which will provide the information without opportunity to read or view files, documents or records. “Access” includes being provided with the means or opportunity to have contact with the source documents or materials containing desired information. The distinction is spelt out in the FOI Act of Liberia where information is “accessed” by making it available for inspection, etc., and in a “request”, the applicant receives information without inspecting source documents and records. The FOI legislation of Greece also permits viewing or reading of most administrative documents.

5.         Does Not Provide Penalty for Failure to Record Information

The Act mandates a public institution to record, maintain and publish information but does not state penalty for non-compliance. AGF’s oversight responsibility does not include the power to compel compliance or sanction erring officials or institutions. There are no administrative, penal, or budgetary sanctions of any form whatsoever. The only sanctions under FOIA, Section 7(5) on wrongful denial of access, and Section 10, destruction or falsification of records, do not apply here.

The sole recourse is for an aggrieved applicant to sue the public institution in a law court, to compel recording, etc. Except an applicant has personal stake in the subject matter of the information, few will be willing to go through the stress of litigation.

6.         Lack of Internal Review Mechanism

The FOIA lacks intermediate mechanisms for internal or administrative review of denial of access to information. The only recourse is for aggrieved persons to sue in court to compel compliance.

As a people, we are litigation averse. Litigation is expensive and drags on endlessly. Even though cases are required to be summarily decided, not many Nigerians would think it worth their while to judicially enforce their FOI rights

We have tenant mentality toward people in government. Nigerians relate with government employees on the basis of the office or positions they held by the latter, and treat public servants like overlords.

Nigerians do not have a culture of holding public officials to account.

An applicant could be a poor or indigent student who needs information for research purposes and does not have the resources to pursue litigation. For a journalist merely fishing for information on a matter that has not fully developed, it will be difficult to get the employer to commit resources to litigation.

7.         Monetary Penalty on Public Institutions Inconsistent with our Criminal Judicial Law

The FOIA, in imposing monetary penalty on the public institution as an alternative to the defaulting officer, robs itself of potency to enforce compliance. Actions or misconduct of public institutions are carried out by human agents so, it should be reasonable that the responsible official be solely liable for paying the fine.

On the other hand, it does not seem to serve any useful purpose to impose monetary fine on the government or public institution. Court fines go to government purse, so the money merely moves from one column of the ledger to another column of the same ledger and still ends up in government coffers.

8.         AGF Cannot be Expected to Prosecute Public Institutions

Every criminal indictment is a breach of the law of the state or the country. So, it is not imaginable that a government institution would be charged to a criminal court for breach of its own law. It is a case of the Queen [or King of England] can do no wrong.

The AG is the chief law officer of the State. All criminal prosecutions of the Government of Nigeria are undertaken in his name and under his authority. However, he is also responsible for defending actions against the government. In a suit to penalize a public institution for violation of the FOIA, what would be his role, prosecutor or defender?

9.         AGF Cannot be Expected to Supervise Own FOIA Compliance

The office of the AGF and the Ministry of Justice is subject to the FOIA. So, when the AGF is given supervisory authority of the Act, who supervises or monitors compliance by the AGF’s Office?

10.       Cost Recovery for Successful Litigants

A successful litigant would have incurred attorney fees and costs in litigating his or her case in court. It is of little succor to the person that the public institution or defaulting officer is subjected to criminal sanctions. He or she would be more interested in recovering the costs of such litigation.

11.       Need to Cap Exemption Period

For exempt information, qualified or absolute, there is a question as to how long it should remain hidden from public scrutiny. What happens if the reason for exemption ceases to exist? The FOIA does not address the issue.

In the US, exempt, even classified information is declassified for release after a given number of years. Same thing applies under the Liberian Act.

11        Questionable whether 30 day Appeal Period Constitutional

The freedom of expression provided under Section 39 of the Constitution is circumscribed subsection (3) (b), to the extent reasonably justifiable in a democratic society imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.

In other words, the power of the National Assembly to derogate from the right is limited to imposing restrictions on holders of public office. In this light, one questions whether Section 20 amounts to unwarranted abridgment of right of access to court when it provides that where access is denied, an applicant may apply to court within 30 days for judicial review. The time within which to apply to court has to be consistent with the right of enforcement of other fundamental rights provisions.

12.       Sections 14 and 15 Exemption and Reverse FOI Lawsuit

Sections 14(3) and 15(4) contain public interest waiver of exemptions. Other countries, like New Zealand and USA have grappled with the issue of Reverse FOI litigation.

For example, if the PI denies access to information subject to exemption, who should defend a lawsuit to compel release of such information? Certainly it is the interest of the subject, private or corporate, that is being protected. Should public funds be used to defend personal or third party interests?

On the other hand if the PI decides to release same information and the protected subject sues, government would find itself defending the right or interest of the applicant to the information. The same question arises as to why public funds should be used to protect the interest of an applicant.

Q? Can a PI be sued for libel by virtue of release of damaging information that is otherwise exempt?

Recommendations

There is need for an Independent Commission with power to consider, review, monitor, audit or otherwise ensure compliance with the Act. It should have quasi-judicial power or authority to investigate, and if necessary, impose sanctions on erring officials. The sanctions should include fines, reimbursement of expenses, suspension, and dismissal of repeated violators. The Commission should be given power to subpoena or compel designated and other officials, and heads of public institutions to appear before it and provide information, including unrecorded information about their activities.

There should be a process of internal review of complaints by aggrieved applicants. If the review fails to resolve a dispute, the applicant can appeal to the Independent Commission, before approaching the regular court. Recourse to court should be had only after exhausting administrative remedies.

The Independent Commission, and not the AGF, should be responsible for issuing implementation guidelines and developing capacity for enforcing the Act. The AGF’s oversight should be limited to reporting compliance to the National Assembly.

There should be strict Congressional oversight, including budgetary control. The responsible Congressional committee should routinely summon heads of public institutions to testify on compliance with the Act. Members of the Congressional Committee should receive their training directly from the Independent Commission, and not from any public institution.

There is need to more clearly empower the office of the compliance officer, with autonomy to function within the public institution.

There is need to ensure integrity in recording, maintaining and publishing information, with sanctions imposed on erring institutions and individuals for non-compliance.

With a view to encouraging access to court to compel recording, a successful applicant should be entitled to claim all expenses, including reasonable attorney fees and costs, incurred in pursuing his case.

Where an applicant applies to access or requests information that should be publicly available, but for the failure of the public institution to record or publish, fees should be waived for such applicant, and if possible, the fees should be recouped from the erring official.

There is no necessity for imposing criminal sanctions on public institutions. Erring officials should be personally responsible for paying any sanctions.

There should be maximum period of non-disclosure. Exempt information should be publicly accessible as soon as the reason for the exemption no longer exists, and in any case, without conditions after a given number of years, say 15 or 20.

Mr. Alimi Adamu

Mr. Alimi Adamu

 

Alimi Adamu is a legal practitioner of nearly 30 years standing. His legal practice has spanned several countries, including Nigeria, the Fiji Islands, the Republic of the Marshall Islands, and the State of California in the United States. He is currently a Managing Partner in Momoh, Momoh, Adamu and Co. (Legal Practitioners) in Lagos as well as Principal Partner in Alimi Adamu & Co. in Los Angeles, California. He has previously served as Assistant Attorney-General in the Republic of the Marshall Islands and as a Legal Officer in the Attorney-General’s Office in the Fiji Islands.

 

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