Being a paper presented at the Stakeholders’ Technical Meeting on the FOI Amendment Bill and Upgrade of Reporting & Compliance Mechanisms. Organised by the International Press Centre (IPC), Lead Partner, Component 4 (Support to Media) of the European Union Support to Democratic Governance in Nigeria, Phase II (EU-SDGN II) Programme, in collaboration with PLAC and YIAGA Africa.

Introduction
The Freedom of Information Act, 2011, even in its present form, is regarded as a relatively good access to information framework, with some very strong features, although it also contains a number of weaknesses.

In the global context, out of about 140 national access to information laws listed on the Global Right to Information (RTI) Rating platform, which analyses the quality of the world’s access to information laws, Nigeria’s FOI Act is ranked No. 64 with a score of 88 points out of a maximum possible score of 150.

This is obviously above average both in score and in ranking.

The RTI Rating assesses the strength of national legal frameworks for accessing information held by public authorities, and its methodology is derived from international standards as well as best practices at the national level.

Scores are based on 61 indicators, each of which looks at a particular feature of a strong legal regime for access to information.

The indicators are divided into seven main categories, namely the strength of the right of access granted by the law, the scope, the requesting procedure, exemptions and refusals, appeals mechanisms, sanctions and protections, and promotional measures.

Our major undoing is the fact that we do not have an independent administrative appeals mechanism or administrative sanctions. The law also does not place responsibility on any institution or body to promote the Act to ensure public awareness.

To provide some additional context, it is worth noting that the laws of two countries in Africa, both of which are also in West Africa, are listed among the top 10 access to information laws in the world. These are the Gambian Access to Information Act, 2021, listed as No. 6 with a score of 128 points, and the Liberian Freedom of Information Act, 2010, listed as No. 10 with a score of 123 points.

There are many other African countries with much better laws than Nigeria, and such other countries in the top 20 ATI laws in the world are

Sierra Leone No. 11
South Sudan No. 12
Tunisia No. 15
South Africa No. 16
Namibia No. 17

So it is not unrealistic for us to aspire to have a better law, which could be among the best in the world.

The rating system only analyses the strength of the law based on its provisions and does not assess the effectiveness of the law in reality or its implementation, although we also have an Access to Information Implementation Readiness Assessment framework that we developed with the Carter Centre, which was applied in Nigeria 10 years ago, in 2015.

So, in addition to the weaknesses in the quality of the Nigerian FOI Act, which may have undermined its effectiveness, there are also shortcomings resulting from the implementation process, which really have nothing to do with the provisions of the Act.

In deciding what amendments to propose or pursue, it may also be necessary to consider some of such external factors that have manifested in the implementation process in order to determine whether texts may be introduced in amendment bills to address such issues.

It should also be noted that we have in existence Guidelines on the Implementation of the Freedom of Information Act, 2011 (Revised Edition 2013), issued by the Attorney-General of the Federation and Minister of Justice, which provide practical guidance for public institutions on the interpretation and implementation of provisions of the Act.

In many respects, the Guidelines have sought to respond to some of the gaps in the Act. We should now decide whether some of such provisions in the Guidelines are adequate in addressing those gaps or should also be incorporated into the proposed amendments to give them greater force of law.

Gaps in the FOI Act

All public institutions have certain duties and obligations under the Act. Many of these obligations are specifically mandated by the Act.

An obvious gap in the FOI Act is the lack of effective enforcement mechanisms or processes and procedures for ensuring compliance with most of the obligations imposed on public institutions by the Act.

It should be noted that the Act is not completely bereft of enforcement mechanisms. Indeed, the Act places excessive reliance on judicial mechanisms, predominantly litigation, for enforcing compliance with all its provisions, including the duties and obligations imposed on public institutions, and relies on members of the public to activate these mechanisms.

Thus, Section 1(3) of the Act provides that “any person entitled to the right to information under this Act shall have the right to institute proceedings in the Court to compel any public institution to comply with the provisions of this Act.”

The Act, therefore, gives locus standi to any person to use the judicial process to enforce its provisions, and there is no limit whatsoever to the provisions that can be enforced by relying on this section.

More specifically, with respect to the requirement for proactive publication of certain categories of information, Section 2(6) of the Act similarly states that “a person entitled to the right of access conferred by this Act shall have the right to institute proceedings in the Court to compel any public institution to comply with the provisions of this section.”

In theory, therefore, with the provisions of Sections 1(3), 2(6), 20, and 21 of the Act, as well as Sections 7(5) and 10, which create criminal offences for certain acts of omission or commission, judicial mechanisms exist for enforcing compliance with all the provisions of the Act.

Given the state of our judicial system with the high cost of litigation, the outrageous caseload of judges, the long period it takes to dispose of a case, and the widespread lack of trust and confidence in the judiciary, it is difficult to see how this can be an effective mechanism for enforcing compliance.

A major gap in the FOI Act is this lack of an effective mechanism for enforcing compliance with the reporting obligations that public institutions have under the Act. This is the singular issue sought to be addressed by the two amendment bills pending before the House of Representatives.

Under Section 29 of the Act, each public institution must submit to the Attorney-General of the Federation by February 1 of every year a report on the usage of the Act covering the preceding fiscal year, and each public institution must make the report available to the public by different means, including by telecommunication and computer, or if computer and telecommunications means have not been established by the institution, by other electronic means.

As the Attorney-General of the Federation has clarified in a January 29, 2012 circular to all public institutions, which was subsequently incorporated into the Implementation Guidelines, the submission of a report to the Attorney-General does not absolve the institution from proactively disclosing electronically or through other means information and records relating to its administrative machinery and general operations to the public as outlined under Section 2 of the Act. The “obligation to submit a report to the Attorney-General of the Federation is additional to the obligation to make such a report directly available to the public electronically, such as by publishing the report on its website.

The compliance issues here relate to the following:

• Are public institutions submitting their reports in accordance with Section 29 of the Act?

• If so, are the reports being submitted within the timeframe specified by Section 29 of the Act?

• Do the contents of the reports meet the requirements of Section 29 of the Act, particularly with reference to the information that should be provided?

An additional question may be whether the reports comply with the format and procedure specified by the Attorney-General of the Federation in his January 2012 Circular, now incorporated into his implementation guidelines issued pursuant to Section 29(5) of the Act.

Under Section 27(7) of the Act, the Attorney-General himself must also submit to the National Assembly an annual report on or before April 1 of each year, while Section 29(3) requires him to make each report, which has been submitted to him by every public institution, available to the public.

To my knowledge, the three Attorneys-General of the Federation that have held office since the Act was enacted in 2011 have submitted annual reports on the implementation of the Act to the National Assembly every year unfailingly. Not a single year has been missed. I also believe that the reports have been submitted within the timeframe specified in the Act. To date, they have collectively submitted 14 such annual reports to the National Assembly.

The compliance issues that arise with respect to the Attorney-General’s reporting, however, would be the following: Do the contents of the reports meet the requirements of the relevant provisions of the Act, particularly Section 29(7) and (8), which require that the reports should include a listing of the number of cases arising under the Act, the exemption involved in each case, the disposition of such cases, the cost, fees, and penalties assessed, and a detailed description of the efforts taken by the Ministry of Justice to encourage all government or public institutions to comply with this Act?

We may also want to propose some additional information that should be included in the Attorney-General’s reports to the National Assembly. Such information could conceivably include the names of non-complying public institutions as well as recommendations regarding sanctions that may be imposed on persistent non-complying institutions.

In addition, Section 29(4) of the Act mandates the Attorney General to make available to the Chairman and ranking minority member of the relevant committees of the House of Representatives and the Senate, not later than April of the year in which the reports are issued, hard copies and electronic copies of the reports submitted to him by public institutions.

Diligent compliance with this provision will make it possible for the National Assembly to have a fuller and clearer picture of the state of implementation and compliance with the FOI Act because members will have access to the following specific information with respect to each public institution that submits its annual implementation report:

• the number of decisions made by the public institution not to grant applications for information made to it and the reasons for such decisions;

• the number of challenges made by persons who requested such information and the reason for the action upon each challenge that results in a denial of information;

• whether the Court upheld the public institution’s decision to withhold information and a description of the scope of any information withheld;

• the number of applications for information pending before the public institution as of October 31 of the preceding year and the average number of days that such application had been pending before the public institution as of that date;

• the number or applications for information received by the public institution and the number of applications that the public institution processed;

• the average number of days taken by the public institution to process different types of applications for information;

• the total amount of fees collected by the public institution to process such applications; and

• the number of full-time staff of the public institution devoted to processing applications for information, and the total amount expended by the public institution for processing such applications.

Such information will enable the National Assembly to better assess the extent of implementation and identify additional measures that may be required to improve compliance and effectiveness.

We may also examine the extent of compliance by the Attorney-General with the broader mandatory provision of Section 29(6) of the Act, which states that “The Attorney-General shall, in his oversight responsibility under this Act, ensure that all institutions to which this Act applies comply with the provisions of the Act.”

Successive Attorneys-General have given the excuse that the Act has given them responsibilities without the authority to carry out these responsibilities.

I respectfully disagree with this view. If the attorney general is so minded, nothing stops him from relying on the provisions of Section 1(3) or 2(6) of the Act and utilising the courts to enforce compliance with any of the provisions of the Act, including the reporting obligations of public institutions. Had any attorney general taken such decisive action, even in a handful of cases, it would have sent a strong signal to all public institutions that there will be no impunity for non-compliance with the result that the level of compliance across the board would have been significantly higher.

The main challenge in this regard has been the lack of political will to act decisively.

An even more consequential gap in the Act is the lack of effective mechanisms to enforce compliance with the proactive disclosure obligations that public institutions have under the Act.

The Act requires that every public institution must proactively publish certain types of information, even without anyone requesting them. Such information should be widely disseminated and made available to the public through various means, including print, electronic, and online channels and at the offices of the institution. Every public institution is also required to review and update this information periodically and whenever any changes occur.

The provisions relating to proactive publication are among the most important in the Act. Many access to information experts argue that proactive publication is the most important part of any access to information legislation. Non-compliance with this obligation under Section 2 of the Act, therefore, puts the entire Act at risk.

This is because when the proactive publication provisions of the Act are not being complied it, it is very difficult for the aspect relating to making requests for information to work well because some people seeking information may not know what information various public institutions hold and cannot therefore know which institution to approach. If institutions are not proactively publishing the details of their FOI Desk Officers, then members of the public might not know who to direct their requests at or engage with.

In addition, proactive publication makes some information automatically available and this automatic availability of information ensures that the public has timely access to information, and that there is equal access for all members of the public without the need for anyone to file requests. Besides, proactive publications also help to ensure that all members of the public can access at least a minimum amount of information about public institutions, their activities and the services they provide or the functions they perform, including the vast majority of people who may never make a freedom of information request.

Over the last 14 years since the FOI Act came into effect, it would be accurate to say that no public institution has fully complied with Section 2 of the Act as no public institution has proactively published all the 16 categories of information that they are required to proactively publish and made them widely and readily available to the public while also reviewing and updating the information periodically and immediately whenever changes occur.

As indicated earlier, although members of the public could conceivably rely on Section 2(6) of the Act to undertake litigation for the purpose of enforcing compliance with the proactive publications obligations, this alone cannot be an effective mechanism.

Training of Officials

A major challenge impeding the effectiveness of the Act is the pervasive culture of secrecy in public institutions as well as a high level of ignorance, which the Act has attempted to address through Section 13, which imposes a dual obligation on public institutions to:

• Ensure the provision of appropriate training for its officials on the public’s right to access information or records held by government or public institutions, as provided for in the Act; and

• Ensure the provision of appropriate training for its officials for the effective implementation of the Act.

Although we do not have reliable data to make a precise assessment, there is also significant lack of compliance with this provision.

I am aware of only very few public institutions have actually carried out training for some of their officials and even fewer have done the “sensitization” for all or most of their officials.

I am aware that the Federal Ministry of Justice or the Office of the Attorney-General of the Federation has also periodically provided training for FOI Desk Officers and other officials from different public institutions while some civil society organizations are similarly providing training for officials of public institutions on the implementation of the Act.

However, most public institutions, which are the ones given the responsibility to provide the appropriate training for their officials, are not themselves complying with this requirement. Under such a situation, they are unlikely to be able to effectively implement the Act and might even be ignorant of some of their duties and obligations under the Act.

There are many other obligations that public institutions have under the Act for which there should also be effective mechanisms for enforcing compliance. These include the following:

Every public institution must ensure that it records and keeps information about all its activities, personnel, operations, businesses and other relevant or related information or record Sections 2(1) and 9(1)

Every public institution must also ensure the proper organization and maintenance of all information in its custody in a manner that facilitates public access to such information. – Sections 2(2) and 9(2) of the Act

Every public institution must designate an officer to be in charge of requests from members of the public for access to information and publish the title and address of that appropriate officer to whom applications for information under the Act should be sent. – Section 2(3)(f)

Every public institution must ensure the provision of appropriate training for its officials on the public’s right of access to information or records held by the public institutions; and for the effective implementation of the Act.

Public institutions must respond to applications for information within 7 days, whether or not they are granting access to the information requested, although under certain circumstances, the timeframe for responses may be extended for a further 7 days, such as where the application is for voluminous records and meeting the original time limit would disrupt the institution’s operations; or where consultations are necessary to comply with the application and the consultations cannot be completed within the original time limit.

Where a public institution decides to deny an application for information, it must give a written notice to the applicant stating that access to all or part of the information will not be granted, with reasons for the denial and the section of the Act relied upon for the denial of access. In addition, the notice must also state that the application has a right to challenge the refusal in court and must contain the names, designation and signature of each person responsible for the denial of access to information. A public institution refusing an application for access to information must also indicate in the notice whether the information or record applied for actually exists.

A public institution which receives an application but considers that another public institution has greater interest in the information, may within 3 to 7 days after receiving the application, transfer the application and if necessary, the information, to the other institution. In such a case, the institution must give a written notice of the transfer to the applicant.

Fees for Access to Information

The fees that public institutions can charge members of the public for access to records and documents are limited to standard charges for the duplication of documents and for transcription, where it is necessary to transcribe the information. No other fees or costs can be charged.

Although the fees are not specified in the Act, the Attorney-General’s Guidelines has addressed this gap and standardized fees across all public institutions by establishing a fee schedule for accessing information under the FOI Act. The schedule is contained in the revised Guidelines on the Implementation of the FOI Act under the section titled: “Range of Fees Chargeable for Duplication of Records under the FOIA 2011”.

The schedule is very detailed and specific and, therefore, thoroughly addresses the issue, in my view. Nonetheless, we have had some public institutions charging outrageous fees that are not based on these Guidelines as a ruse for denying access or in an effort to discourage people from requesting information from them.

Linked to the lack of effectiveness of litigation as an enforcement mechanism is the absence of an administrative or non-judicial mechanism enforcing compliance or resolving disputes.

Requesting Procedures

Section 3(1) of the Act states that “An application for access to a record or information under this Act shall be made in accordance with Section 1 of this Act.”

However, there is nothing in Section 1 of the Act that this could be in reference to. This requires some tidying up and can be addressed in any of the following ways:

• Amend the section to dispense with the suggestion that there should be a particular way of making an application for information.

• Outline procedures for making an application for information in Section 1 of the Act.

• Outline procedures for making an application for information in the particular section, that is, Section 3 of the Act.

• Authorize and require the Attorney-General of the Federation to develop requesting procedures in the form of guidelines or regulations. Such procedures could also be included in an amended Implementation Guidelines.

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