RSS

Enforcing Rights Using The Freedom Of Information Act, 2011-Legal Perspective

27 Mar

 Written by Okoi Obono-Obla

The Freedom of Information Act (FOI), 2011 is a revolutionary piece of legislation that came into force on the 31st May, 2011 when President Jonathan signed into law, the Freedom of Information Bill as required by the Constitution of the Federal Republic of Nigeria.  The FOI Act is revolutionary in the sense that it has made public records, information more free available

and provide for public access to public records and information consistent with public interest.


It has also made provision for the protection personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorisation and establish procedures for achievement of those purposes.


With the coming into force of the law, there is no more a veil or curtain of secrecy that hitherto the management of the affairs of both public and private sectors in the country.

I make bold to say that the FOI Act is the greatest weapon for the fighting corruption, exposing fraud and bringing about a clean, transparent and accountable government and even private companies that deals with governments in the country.  
The greatest innovation introduced into the legal system by the FOI Act is the liberalisation of the concept of locus standi-the right to sue by an individual, especially in the area of public interest litigation.

Previously it was difficult (if not impossible) to make public officials to account for their action because to successfully maintain an action against government or public institutions you must be able to establish that the right you want to enforce in court is peculiar to you not the one you share with the rest of the members of the society or community.  

Enforcement Procedures Under The Foi Act
However Section 1 (1) of FOI Act has unequivocally conferred the right on every Nigerian to have access to public records and information.

Sections 1 (2) of the FOI Act specifically confer locus standi on every Nigerian to apply for access to public information and record.

“An Applicant under this Act needs not demonstrate any specific interest in the information being applied for
Section 1 (3) of the FOI Act provides that any person entitled to the right to information under the Act shall have the right to institute proceedings in the Court to compel any public institution to comply with the provisions of the Act.
Section 2 (1) & (2) of the FOI Act makes it mandatory for a public institution records and keeps information about all its activities, operations and businesses.   

Section 2 (6) of the FOI Act stipulates further that a person entitle to the right of access conferred by the Act shall have the right to institute proceedings in the Court to compel any public institutions to comply with the provisions of this section. 
 So the first step towards enforcing the right vested on you or your organization to have unfettered access to public information and record is to avail yourself of the provisions of Section 3 (1) of the FOI Act that provides thus: 
“An application for access to a record or information under this Act shall be made in accordance with Section 1 of this Act”.

Form Of Application For Access To Information
The application for access to information must not be in any prescribed form or format. However the application for access to information must be clear and unambiguous on the type of information or record the applicant is requesting from the public institution.

The application must be dated and signed. It must be addressed to the public institution or official concerned.

Need For Proper Service Of An Application For Access To Information
The application must be properly or duly served on the public institution from whom the record or information is requested from.

It is advisable to serve such public institution or official with the application by means of courier service or you take the application to the High Court or Magistrate get it assess and pay a fee so that the Court Bailiff can help you to serve it on the public institution or official. 

This is to enable you have proof or acknowledgment of the service of your application otherwise the public institution or official concerned may deny service of your application for access to information.

So service of the application is fundamental or vital in the event that the public institution or official fails to allow you access to the information and you are compelled to challenge such refusal in a Court of Law.

I had such experience when i filed a case against a Local Government Area Council in Cross River State known as Yakurr in the High Court to allow me have access to documents concerning allocation from the Federation Accounts from 2008-2011. 
The Local Government Council came to Court to deny that it was served with the application but I had to produce a document given to me by DHL courier Company showing that the Local Government was served. 

Also in Major-General India Garba (rtd.) versus Special Adviser, Bureau for Local Government and Chieftaincy Affairs, Benue State of Nigeria pending in the High Court No. 5 , Makurdi, the defendant denied in Court that it was ever served with the application by the Plaintiff for access  to information about allocations to Vandeikya Local Government Area Council of Benue State after the Defendant had replied to the application saying that it would not allow the Plaintiff access to the information on ground that under the Official Secret Act it would be criminal to accede to the Plaintiffs application.

The Right Of An Applicant To Be Allowed Access To Information Within Seven Days Of Application By A Public Institution
Section 4 of FOI Act provides that a public institution to which an application is made shall subject to section 6, 7 & 8 of the Act within 7 days after the application is received take the following steps thus: 
(a) make the information available to the applicant;

(b) where the public institution considers that the application should be denied, the institution shall give written notice to the applicant that access to all or part of the information will not be granted, stating reasons for the denial, and the section of this Act under which the denial is made.

Extension Of Time For Access To Information By A Public Institution
A public institution can extend the seven days prescribed in Section 5 or Section 6 in respect of an application for a time not exceeding 7 days if- 
(a) The application is a large number of records and meeting the original time would reasonably interfere with the operations of the public institution; or 
(b) Where consultations are necessary to comply with the application.

Notice Of Refusal To Allow Access To Information By A Public Institution
Section 7 (1) of the Act stipulates that where the government or public institution refuses to give access to a record or information applied or a part thereof, the institution shall state in the notice given to the applicant the grounds for his refusal, the specific provision of the Act that relates to and that the applicant has a right to challenge the decision refusing access and have it reviewed by a Court.

Where the government or public institution fails to give access to information on record applied for under the Act or part thereof within the time limit set out in the Act, the institution shall for the purpose of the Act deemed to have refused to give access.  See section 7 (4) of the Act.

Payment Of A Fine Of N500, 000 By A Public Institution For Denial Of Access To Information
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, 000.00. See Section 7 (5) of the Act.

In the case of General Garba vs. Vandeikya LGAC, the High Court, Vandeikya awarded cost of N500, 000.00 against Vandeikya Local Government Area Council for wrongful denial of access to information to the Plaintiff. 
EXEMPTION OF CERTAIN CLASSES OF INFORMATION

Under Section 15 (1) (a) (b) & (c) of the Act, certain third party information can be exempted such as trade secret and commercial or financial information; information that would reasonably interfere with the contractual or other negotiations of a third party and proposals and bids for any contract, grants, or agreements, including information which if it were disclosed would frustrate procurement or give an advantage to any person.

Under section 16, public institution may deny an application that is subject to the following privileges-
(a) Legal practitioner-client privilege;
(b) Health works-client privilege;
(c) Journalism confidentiality privileges; and
(d) Any other professional privileges conferred by an Act.

The Right To Go To Court To Challenge Failure By A Public Institution To Alllow Access To Public Information

Under Section 20 of the Act, any applicant who has been denied access to information, or a part thereof, may apply to the Court for a review of the matter within 30 days after the public institution denies, or is deemed to have denied the application, or within such further as the Court may either before or after the expiration of the 30 days fix or allow. 
Conclusion

The FOI Act as I had previously pointed out is a revolutionary piece of legislation that is capable of bring about a culture of openness, accountability and transparency in our country that has the unenviable reputation of being one of the most corrupt countries in the world by international rating.
I therefore urge each and every one of us to avail ourselves of its provisions in the fight against corruption and graft in Nigeria.

Obono-Obla is Public Interest Lawyer

Advertisements
 
Leave a comment

Posted by on March 27, 2014 in Uncategorized

 

Tags: , , , , ,

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
%d bloggers like this: