Sunday, 5 June 2011

Freedom of Information Act 2011: Good Stuff!

Laws are hardly fascinating collections of words. They don’t make leisure reads. The Freedom of Information Act is different. It is a clearly written piece of legislation and I enjoyed reading it. It also holds an 'against all odds' badge in our democratic history. We will always be grateful to the great minds that pushed for this bill. The EIE coalition has been kind and provided what appears to be the bill that President Goodluck Jonathan signed into law. You may download it from its website, as I have. I have relied on this in providing highlights of the law.

Your rights:
You have the right to request for information, whether written or otherwise from a public institution. You don’t have to explain why you need the information and you can even go to court to compel the institution to comply. Illiterate or disabled applicants may apply through a third party. There will be a formal application that applicants may use. In any case, you don’t even require a written application. You could verbally request that an authorised official of a public institution provides the information. (S)he will now write it and provide you a written application. This may not be advisable for evidentiary reasons.

Who can you ask?
You may demand from any ‘public institutions’. These include the three arms of government: executive (e.g. President), legislature (e.g. lawmakers), judiciary (courts), as well as any parastatals supported by public funds (e.g. PHCN). More importantly, you may demand for information from private bodies providing public services (e.g. ppps), who perform public functions or utilise public funds. All public institutions are required to now keep records of their operations and businesses. Specific information is provided in section 3 (3) of the law. It is now a criminal offence to wilfully destroy records or alter them.

What you may be told:
The public institution to which the application is directed may provide the information to the applicant within 7 days of the request. It may also deny the application and give written notice of such denial within the same 7 day period. This notice must explain why it denied your request and state whether the information exists. Where the institution fails to give notice within the 7 day period, it is deemed to have refused to give access. If the public institution thinks that another institution has greater interest in the information, it must transfer the application within 3-7 days and also inform you. This period is not set in stone. It may delay the transfer if it can show that the application is for a large number of records and that the 3-7 day period will reasonably interfere with its operations, or that it requires more time to make consultations.

When can a public institution say no?
You may not invoke the FOI to receive published material, or material available for purchase or public reference materials. You may not receive access to ‘personal information’. This is defined in section 15(1) and includes information for tax assessment; files on financial, medical, or educational services from public institutions. A public institution can also deny information that contains trade secrets, financial information, proposals and bids for contracts, grants, etc. Additional information is provided in section 16 (1). You can ask for a waiver of these provisions where public interest ‘clearly’ outweighs the protection of the individual’s privacy. Individuals or institutions may also consent to provision of the information.
A public institution may also refuse access where disclosure is injurious to the conduct of international affairs and the defence of the Federal Republic of Nigeria or where it would derive a person of fair trial or disclose the identity of a confidential source. Additional cases are in section 13 (1).
You may not receive information on test questions, course or research materials prepared by faculty members scoring keys for examination, library circulation and records identifying library users, among others. Other information is provided in section 20. The same public interest waiver applies to these cases. For example, you may not demand for a copy of President Jonathan’s Ph.D. thesis except the court agrees that public interest outweighs his private rights.

What can you do if a public institution says no?
Where the institution fails to give notice within the 7 day period, it is deemed to have refused to give access. Where you have been refused, you may apply to court for a review within thirty days. The court may extend time to apply within that period. Where wrongful denial of access is established, the defaulting officer or institution shall be liable to a N500,000 fine on conviction.

Money matters - fees:
The only fees required under the FOI are standard charges for duplication and where necessary, transcription. This does not exclude charges under any other laws.

Fascinating (lawyer) stuff:
Burden of proof of authorised denial is on public institution. This means that all you have to do is say that the institution refused your application and leave it to show that it the refusal was valid. *yawn*
The Official Secrets Act is no longer an excuse to restrict access. A public institution cannot deny access to part of a record containing results or product of environmental testing carried out by or on behalf of a public institution.


Downside :(
It looks like each state has to sign its own Freedom of Information Law. The National Assembly can only make laws for the public records of the federation and not the states.

This is not legal advice but contains my opinion on the subject. Please speak to your lawyer before acting on the information provided.

This is also on NigeriansTalk