…Strengthening Enforcement and Compliance Being the second and the concluding part of a paper presented at the Stakeholders’ Technical Meeting on 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,
…Strengthening Enforcement and Compliance
Being the second and the concluding part of a paper presented at the Stakeholders’ Technical Meeting on 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.
Other Issues for Consideration
Powers of the Attorney-General to Issue Guidelines
Powers conferred on the AGF by Section 29(5). The language of the provision suggests that the powers conferred on the Attorney-General to develop reporting and performance guidelines is limited to the reports required by Section 29 of the Act and does not extend to other issues or provisions of the Act. For ease of reference, the provision states as follows:
“29(5) The Attorney-General shall develop reporting and performance guidelines in connection with reports required by this section and may establish additional requirements for such reports as the Attorney-General determines may be useful.”
Scope and Applicability of the FOI Act
In the light of the judgement of the Supreme Court in Appeal No. SC/614/2018: Austin Osakue & 8 Ors v. Edo State Agency for the Control of AIDS (EDOSACA), delivered on April 11, 2025, in which the court affirmed the applicability of the FOI Act to records and information held by public institutions at the state level, it is proposed that this situation is reflected in the Act through an amendment where text along the following lines may be introduced: “This Act applies to all public institutions at the federal, state, and local government levels, including the judiciary and legislature, regardless of the tier of government under which they were established or operate.”
In addition, in order to operationalise the decision, some of the existing provisions may need to be clarified or more clearly stated, such as the power of the Attorney-General of the Federation to issue directives to public institutions at the state and local government levels as well as the obligation of public institutions to submit annual reports to the Attorney-General.
Oversight and the Capacity of Office of the Attorney-General of the Federation
The oversight body for a Freedom of Information Law is the guardian of the right to information. Its functions generally combine multiple roles. It promotes the law to create public awareness of the law and how to use it; ensures that public institutions comply with the law, including proactive publication obligations; investigates complaints from individuals or organisations denied access to information; receives reports from public institutions; conducts an audit or review practices of public bodies to assess compliance; enforces the law, including by issuing orders, imposing administrative sanctions, or referring matters for prosecution, where necessary.
• The oversight body frequently acts as a neutral arbiter between requesters and public institutions in cases of denial, delay, or inadequate responses; provides a mechanism for appeal or redress that is faster and less costly than going to court; and offers mediation or conciliation services in appropriate cases.
• Promoting awareness of the right of access to information among the general public is often a critical part of its mandate, which it does through public campaigns, training, and outreach to deepen understanding of the law and its benefits.
• The oversight body also provides guidance, training, and support to information officers and public institutions in general on how to implement their FOI obligations. It develops and issues standard operating procedures, templates, or model manuals to help public institutions comply with the law and assists them in setting up record-keeping and disclosure systems.
• It is responsible for data collection or gathering about various issues relating to the implementation of the law; compiles and publishes annual reports to the public and legislature on the state of implementation of the law and also analyses trends, challenges, and progress, and makes recommendations for reform.
There are different models of oversight bodies in the world’s approximately 140 countries with access to information legislation. While the independent Information Commission is often hailed as perhaps the best model, there are other models that are working well.
The effectiveness of any FOI regime often depends on the independence, authority, powers, and resources of its oversight institution. Whatever model is adopted, if it has these attributes, it has a good chance of working.
South Africa, with the oldest access to information law in Africa, presents an interesting case study. Oversight responsibility for the Promotion of Access to Information Act (PAIA) was previously carried out by the South African Human Rights Commission (SAHRC). However, since June 30, 2021, the Information Regulator of South Africa has assumed full oversight responsibility for PAIA from the SAHRC. The Information Regulator was established under the Protection of Personal Information Act (POPIA) but also given explicit powers over PAIA.
Since the FOI Act was enacted in May 2011, the Office of the Attorney-General of the Federation has served as the oversight body. But it has only been able to carry out a few of the functions of such a body.
The Office of the Attorney-General has been unable to perform some of the critical functions such as:
• data collection and gathering regarding the usage of the Act,
• promoting the Act through public awareness activities;
• serving as an independent administrative appeals mechanism;
• investigating complaints or enforcing compliance, whether through administrative sanctions or criminal prosecutions, among others
Until April 2025, when it was not clear whether the FOI Act applied to public institutions at the state and local government levels, the Attorney-General’s Office had focused its attention and efforts on federal public institutions in its oversight functions.
Even then, I am not sure that it has a reliable database of all federal public institutions and can give us a precise figure on the number of federal public institutions that are subject to the Act. Should this be the situation, it would be a huge failing on the part of an oversight body, especially one that is also responsible for data collection and ensuring compliance.
Given the enlarged scope of the FOI Act since April 2025, in light of its applicability to public institutions at State and local government levels, it is not clear if the Office of the Attorney-General has made the pivot to now include public institutions at the state and local government levels in their oversight remit.
Regardless, it is imperative that an assessment be conducted regarding the capacity of the Office of the Attorney-General of the Federation along two prisms, namely:
1. The level of authority and powers it has to carry out its oversight functions; and
2. Its personnel and other resource capacity to now oversight more than 1,300 federal public institutions; public institutions of all 36 States and the Federal Capital Territory; and the public institutions of all 774 Local Government Councils in the country as well as private bodies to which the Act applies such as those utilizing public funds, performing public functions or providing public services.
In the light of the decision of the Lagos Division of the Court of Appeal in Appeal No. CA/L/621/2015: Coscharis Motors Ltd v. The EIE Project Ltd/GTE, delivered on February 23, 2022, wherein the Court, per Otisi, JCA, held that “a private company that is not at all funded by public funds and that does not provide any form of public services nor perform any form of public function may, for purposes of the FOI Act be deemed to be a public institution or body within the meaning of the Act, if that private company walks that path even for a single transaction.”
The Court said in the judgment thus: “Contrary to the postulation of the Appellant (Coscharis Motors), it is irrelevant if it is a one-off and never-to-be-repeated occurrence or incident. For that one-off and never-to-be-repeated occurrence or incident, the private body or company would be as accountable as a public institution or body under the Act if it has provided any form of public services, or performed any form of public function or utilized public funds.”
The Court went further to state that “public funds were employed or used as payment for the two BMW bulletproof vehicles purchased from the Appellant (Coscharis Motors) by NCAA. Stretching this further, it means that the Appellant made use of or had recourse to public funds, which were given by NCAA as payment for the vehicles in issue. To the extent that this path was walked, the Appellant was a public institution within the meaning of the FOI Act, 2011 and thereby subject to an enquiry or request, pursuant to the Act. It was not of any relevance that the path was walked only once.”
What does this mean? It simply means that every private company that does government contracts and is paid with public funds is a public institution within the meaning of the FOI Act and thus subject to FOI requests. This judgment remains valid and subsisting and therefore exponentially increases the number of public institutions falling within the purview of the oversight functions of the Office of the Attorney-General.
Having regard to these realities, an assessment of the capacity of the Office of the Attorney-General should also include how this oversight body or mechanism can be strengthened.
Summary Procedure for FOI Cases
Section 21 of the Act states that: “An application made under Section 20 shall be heard and determined summarily.” However, the term “summarily” is not defined in the Act and there appears to be no common understanding among lawyers about its precise meaning and how it might be applied in the judicial process.
Courts of first instance have generally ignored this section of the law and have not sought to apply it, with the result that it typically takes between one and four years to hear and determine an application made under Section 20 of the Act.
However, the Abuja Division of the Court of Appeal provided some insight into the interpretation of Section 21 of the Act in a judgment it delivered in CA/ABJ/CV/1210/2023: Lawyers Network Against Corruption Ltd/GTE v. Central Bank of Nigeria, on January 24, 2025, wherein the Court, per Abang, JCA, held, amongst other things, that the intention of the lawmaker is that any issue that may likely delay or unduly obstruct the prompt and quick hearing of an application made pursuant to FOI Act be taken away to ensure summary hearing of the application.
This amendment process presents an opportunity to properly define or clarify the issue.
An alternative approach could be to mandate the adoption of Practice Directions to guide the adjudication of cases arising under the FOI Act.
However, given that both the Federal High Court and State High Courts are given jurisdiction in such cases, a challenge would be who should issue the Practice Directions, i.e. can the Chief Justice of Nigeria issue a single Practice Direction or would the Practice Directions be issued by the Chief Judge of the Federal High Court and Chief Judges of the various State Judiciaries?
Sanctions Framework
I do not believe that every act of non-compliance with the provisions of the FOI Act should rise to the level of criminality. Non-compliance should only be a crime when the act in question t intentionally obstructs, subverts, or violates the core rights guaranteed by the law in a manner that is deliberate, malicious, or grossly negligent, and that undermines transparency, accountability, or the public interest.
I am of the view that criminal sanctions should be a last resort, and should only be necessary and justified in serious, deliberate, and obstructive violations of FOI Act. Experience from various jurisdictions shows that criminal sanctions are not necessarily effective as they are frequently unenforced.
This has obviously been our experience in Nigeria where no single public institution or official has been prosecuted for breaching any of the provisions of the Act over the last 14 years, even when various courts have found that breaches were committed and suggested that the responsible institutions or officials should be prosecuted.
I am of the view that criminal sanctions may only be appropriate in certain cases but certainly not for every act of non-compliance. Such circumstances include:
• When a public official knowingly destroys, mutilates, falsifies, or alters documents to prevent disclosure under the Act or mislead the requester.
• Where a public official or institution consistently and willfully refuses to release non-exempt information, despite a clear statutory obligations, a court order or directives by an oversight body, where the oversight body is empowered to issue such directives.
• When a public official falsely classifies information in an effort to obstruct or prevent public access to the record that is deemed public by law.
• When a public official or institution takes retaliatory action against a requesters or whistleblower, such as threatening or intimidating a requester for filing an FOI request and, in the case of the whistleblower, suspending, demoting, transferring, dismissing or otherwise punishing the person for disclosing public interest information that reveals wrongdoing.
• When a public official intentionally obstructs investigations by oversight bodies, including courts and anti-corruption agencies, into violations of the FOI Act that could lead to criminal charges or refuses to cooperate with an Attorney-General’s inquiry into FOI compliance.
• When a public official knowingly submits false or misleading information in response to an FOI request, thereby undermining the right to information or the integrity of public records.
Even where these conditions might exist, additional considerations should be factored into determining whether to make an act of non-compliance a criminal offence, including determining whether the non-compliance was deliberate or malicious; if it is an isolated incident or part of a broader pattern of non-compliance; whether the non-compliance caused any harm to public interest or democratic oversight; and whether there are civil or administrative remedies that can be equally or more ineffective.
Alongside a few instance when criminal sanctions might be appropriate, a strong administrative sanctions regime should also be developed and made part of the framework. Such administrative sanctions can be incorporated directly into the amended Act with a clear enforcement mechanism.
An alternative approach could be for the Act to authorize the Attorney-General to develop and adopt a set of administrative sanctions
A third option could be for the sanctions and the sanctions process to be linked to the Federal Government’s Public Service Rules and enforced through the mechanism of the public service administration.
The current Public Service Rules already offences related to information, categorized as Misconduct and Serious Misconduct.
Misconduct includes offences such as deliberate delay in treating official document; failure to keep records; unauthorized removal of public records; negligence; and discourteous behaviour to the public.
Serious Misconduct includes offences such as falsification of records; suppression of records; withholding of files; unauthorized disclosure of official information; and violation of Oath of secrecy.
However, the Public Service Rules will likely still require some amendment to properly contextualize the sanctions and their enforcement.
But a challenge remains regarding how they would apply to public institutions and officials at the State level and private bodies to which the Act applies.
