FREEDOM OF INFORMATION (FOI) ACT (P.8)

FREEDOM OF INFORMATION (FOI) ACT

The Freedom of Information (FoI) Bill, passed by the House of Representatives on 24^th February, 2011 and the senate on 16^th March, 2011 was given assent by President Goodluck Jonathan on 28^th of May, 2011.

 

The signing of the FoI bill into law after about 12 years of agitation was a needed breather and a complete departure from the stringent provisions of the Official Secret Act.

The Official Secrets Act of 1962, which became Law of the Federation: Official Secrets Acts Cap 03 of 2004, was modeled after the English Official Secrets Act (1911). The Act laid emphasis on the prohibition of the disclosure of ‘official’ or ‘classified’ information. S.1 of the Act provides as follows:

“…………………, a person who (a) transmits any classified matter to a person to whom he is not authorized on behalf of the government to transmit it; or (b) obtains, reproduces or retains any classified matter which he is not authorized on behalf of the government to obtain, reproduce or retain, as the case may be guilty of an offence”. This means in effect that a journalist or any person who picks up a classified document, irrespective of where or how he got it, and publishes or transmit it to a third party is prima facie liable of an offence under the Act.

In the same vein, S.1 (2) of the Act provides that “A public officer who fail with any instruction given to him on behalf of the government as to the safe guarding of any classified matter by virtue of his office is obtained by him or under his control guilty of an offence”. This section would apply to a public officer who gave a classified document to a journalist or any other party. S.9 of the Act defines ‘classified matter’ as any information or thing which, under any system of security classification, from time to time, in use by or by any branch of the government is not be disclosed by the public and of which disclosure to the public would be prejudicial to the security of Nigeria.

It was therefore, little wonder that the signing of the FoI bill into law by President Goodluck Jonathan was largely applauded, especially by the media whose business it is to source, collate, process and publish information, some of which may be in the domain of the Official Secrets Act.

Some high points of the FoI Act, which is expected to promote transparency and accountability in governance, are as follows:

·     Any Nigerian can apply for access to publish records and information;

·     Any institution that fails to provide the information required would be fined N500, 000;

·     Any applicant can sue the agency that refuses to release the information;

·     Certain information can be withheld if it could compromise national security, give away a confidential source, be injurious to international affairs, intrude privacy, expose trade secrets, etc;

·     Nevertheless, a court may compel the release of such information if the national interest is considered to be more paramount;

·     If any public officer destroys or doctors public records before making them available, he risk criminal prosecution and imprisonment of a minimum of one year;

·     There shall be no liability for a public officer who makes the information available under the Act. The applicant is also not liable.

The signing into law of the FoI Act should re-position the Nigeria Press Council to better discharge its mandate of serving as buffer between information seekers and givers in the context of the new law. The council, and other stakeholders: Nigeria Union of Journalists (NUJ), Newspaper Proprietors Association of Nigeria (NPAN) and the Nigerian Guild of Editors (NGE); as key players in the information industry, will have to contend with challenges which may arise from issues bordering on social and professional responsibility, particularly with the provision in section 15 of the Professional Code of Ethics for journalists on press freedom and social responsibility.

The new Act, a landmark in the annals of Nigerian history, has raised Nigeria’s profile in the comity of nations and foisted on the nation the challenges of transparency as a concurrent demand of democratic governance.

Highlights of some Sections of the FoI ACT 2011

S.2 (1) of the freedom of information Act 2011 states thus: ‘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, however described, is hereby established.

The above describes the law and ousts the jurisdiction of other existing laws and thereby removing the force of authority those laws previously had’.

S.28 (1) of the FoI Act specially absolves any public officer from civil or criminal liberty under the criminal code, Official Secrets Act and the Penal Code for disclosure done in good faith. The section states as follows: ‘Notwithstanding anything contained in the Criminal Code, Penal Code and Official Secrets Act or any other enactment, no civil or criminal proceedings shall lie against that person thereof, for the disclosure in good faith of any information or any part thereof pursuant to their bill, for any consequences that flow from that disclosure, or for the failure to give any notice required under this bill, if care is taken to give the required notice’.

Section 12, 13, 15, 16, 17, 18 and 20 of the Act lists areas exempted from the right of the public to know. These exceptions include but are not limited to information that could compromise national security, conduct of international affairs, records that could expose trade secrets, test questions, certain professional privileges and architectural plans.

S.26 (3) the court may compel release if national interest is considered to be paramount.

S.28 (2) this section further ousts the jurisdiction of both the Criminal Code and Official Secrets Act where a public officer has without authorization disclosed information in respect of the circumstances contained in subsections 2 (a) and (c). The person who also receives such information or further discloses same is also protected under this subsection.

S.29 specifically states that documents kept either under security classification or classified documents as defined under the Official Secrets Act would be disclosed so far as there is an application for its disclosure.

The section further states that the decision to disclose would be dependent on the type of information i.e. whether it falls under those referred to in section 12, 13, 15, 16, 17, 18, or 20 of the FoI Act.

S.29 (2) of the Act empowers a public institution after confirming that the information does not fall within the sections mentioned in S.29 to give access to such information.