ACCESS TO PUBLIC RECORDS AND
INFORMATION IN THE CONTEXT OF FREEDOM OF INFORMATION
The strength of the public service bureaucracy is its
institutional memory with records and management information as the
fulcrum. Records indeed provide the essential evidence that a particular
action or transaction took place or that a particular decision was made.
Such records are critical to stability of policy and inter-generational
transfer of knowledge and information.
By far the most important value of records is the
evidence it provide the people in democracy to hold decision makers
accountable for their decisions and actions, without which rights and
obligations of citizens cannot be upheld.
Whereas information technology is making information the
source of wealth, far above natural resources or even financial
resources, there are no sufficient framework of laws, policies,
standards, systems and standards to make them available as critical
empowerment tool for wealth creation and poverty alleviation.
This gap in governance is there because, the Nigerian
Federal Civil Service is still trapped in the traditional public
administration mode, and requires a critical 'paradigm shift that
the 'Freedom of Information' initiative and a few other governance
reforms will ignite to reposition it.
The Federal Civil Service, like its States counterpart,
still operate in the tradition governed by the Official Secret Act of
1958. That Law is a product of a tradition that limit freedom of access
to public information.
The Law is an extension of a basis principle of
'anonymity' of the civil servant who is supposed to be seen and not
heard. Within that tradition, a civil servant commits an offence if he
releases any confidential information to an authorized person or to any
person to whom it is not in the interests of the State to communicate
that information. That law clearly puts a gag on any person coming into
possession of government information without specific consent to release
it.
Flagship Initiatives Under Current Reform
It is important to note at this point that, even with
this legislation in view, the FGN has made impressive strides towards
freedom of information. Examples include:
-
Transparency
in Government's focal arrangement
-
Publication
of proceeds. From oil sale
-
Government
commitment to. the Extractive Industries Transparency Initiative (EITI)
-
Drive to
reinvent Government Gazette
-
Drive to
introduced Service Charter, Performance Reports etc
-
Activities
of EFCC, ICPC et al.
It was Wolfgang Stolper, a Consultant during the
preparation of the Nigerian First Development Plan (1962-1968), who
observed the general disregard in official circles, for records and
information in his remark that Nigeria "plans without fact". That was in
1962. It is worrisome that a few of the unresolved structural issues
associated with that statement might hamper the freedom of access to
information in spite of the strong incentives that ICT infrastructure
and other information age expanding technologies provide. Some of these
constraints are:
(i) Non-existence of updated policies for managing
records of government.
(ii) Responsibility for information management on
which government itself and the
citizens
depend are presently fragmented and unclear, with no specific agency or
agencies having responsibility for managing the different classes of
records.
(iii) Filing Systems are still manual, making
information therein unreliable and
sometimes
inconsistent, resulting ultimately in poor information capture and
access.
(iv) Basic retention through archiving are still
stalled by structural issues, while
disposal procedures are constrained leading to the build up of large
quantities
of
redundant records that are invariably historical data useful to policy
makers
and
researchers.
(v) Records offices are poorly resourced, making
them lacking the functionality to
manage
and preserve the evidence base of government over time.
(vi) Records officers are majorly advanced clerks or
executive officers, and with very
few of them
trained and qualified by current standard, have been accorded low
status that
invariably reflect the status and priority given record keeping and
management.
The summary of the above is that lack of reliable records
and record keeping systems will be a major impediment to the
implementation of this Freedom of Information legislation unless
sufficient political will backed up by sustained investment is
demonstrated in the implementation of an integrated public service
information Management system strategy under current reform, in the medium
term.
Focus on On-going Reforms on Records Management
A pilot scheme of integrated payroll, personnel and
pensions information management system is part of the pilot schemes in
current reform. The technical specifications of the system has been
designed and already launched in some pilot ministries and agencies. The
project covers such functional areas as data archiving, document
management, workflow capturing, post administration training
administration, among others. If pursued with desired vigour, then the
following bottlenecks to records management and public service performance
would have been tackled:
-
Perennial
"ghost workers/pensioners" syndrome.
-
Inexplicable
high payroll and pension cost.
-
Absence of
reliable database from where to mine information for planning and policy
making.
-
Deletion or
tampering with vital official documents or loss due to fire outbreaks or
outright theft.
-
And many
others.
The second component of the reform is capitalizing on the
Federal Government IT Policy to launch a number of e-government programmes.
Already the Financial Management Information System has taken off. A few
other programmes for dissemination of information about government
activities, services delivered and interaction with the public using
Electronic Publishing and Online Technology are already launched by a
number of agencies, while others are joining at a pilot scale.
The traditional channels of accessing information by the
public namely, Federal Government weekly Gazette, Statistical digest,
Nigeria Year book, Minister’s Performance Report are either being
reinvented or launched.
The Access to Information Initiative
Freedom of information or access to information law is
normally based on the principle that citizens have a right to know. We
endorse this principle and add that the drive should encourage governments
and even the private sector publicly quoted companies, not only to provide
access to records in response to formal requests, but to disseminate
information that the public is likely to want or need to know. This law
should not only allow citizens right of appeal when access to records is
not readily provided, there should be some measure of sanction.
It therefore becomes the responsibility government to
demonstrate why particular records may not be available, rather than the
citizen's responsibility to demonstrate why public access is required.
However, without sound records management practices, based
on an enabling framework of policies, standards and resourcing, the
guarantees enshrined in freedom of information and of access are
meaningless. If the records that should exist are not created, if they are
incomplete or inaccurate, if access to them is unreliable or unreasonably
delayed, or if the security of information cannot be maintained, freedom
of information laws will not work.
Confidentiality of Certain kinds of Information
A reciprocal principal of access to information is that the
confidentiality of certain kinds of information must be protected. Areas
such as National Defence and Security, Law Enforcement, International
Relations, Intellectual as property and personal privacy are common
exemptions from the right of access. Unless confidentiality of personal
information can be protected, citizens and organizations will be unwilling
to provide the personal and business information that government need to
function.
"National Interest' as Cover for Denial of Access
It is not debatable that 'the government's interest' and
'majority interest' are sometimes not synonymous with 'the public
interest'. Even at that, neither a precise and justiciable definition of
'the public interest' can or should be made, as this must always be an
evolving definition determined on the merits of each situation and
contemporary standards. The determination of what is 'public interest' can
however not be the responsibility of government, it must remain the duty
of a responsible media which effort will be credible and will stand the
test of time if it uses stringent tests to establish the criteria for the
practical application of that definition.
Whenever however 'the public interest' is claimed by government to be in
conflict with the demand for secrecy in 'the national interest', the
determination of what constitutes 'the national interest' and when it
should take precedence over 'the public interest' should be assigned by
law to the courts.
Effect of Lack of Access on Public Sector Records
When the public are denied access to information, then
public officials have sufficient leeway to manipulate official records to
achieve personal interest. Consequently, because some public officials
benefit from payroll, personnel and pensions records, false entries of
retired, dead and dismissed workers are made on payroll to create 'ghost
workers'. This represent a major cost to the civil service budget and
denial to the public of the opportunity cost of investing such resources.
When personnel records are not managed properly, it becomes
difficult and time consuming to calculate pension benefits. The result is
delayed payment that keeps our elders, ex-servicemen on hold, with
increasing numbers of them dying on cues to collect pensions when they are
to be paid.
Besides, financial records limits the tracking of misused
resources or non-compliance with financial regulations. Without accurate
records, the government's use of resources cannot be rendered for public
scrutiny.
Is it access to Public Information only?
We observe that the Preamble suggest that the access is to
public information only. It limits the access to public records in public
institutions only, whereas access to information should extend to all
institutions both in the public and private sectors.
Here, we are referring to important private sector organs
such as banks, hospitals, factories, supermarkets, limited liability
companies and even multi-nationals can also be affected by provisions of
the Law, without prejudice to sections that protect their fiducial
relationships with customers.
Thus, it is our opinion that the preamble - An Act to make
public Records and Information more freely available I provide for public
access to public records...should be amended to read:
An Act to make records and information more freely
available provide access to information in both public and private to the
extent consistent with public interest.
JUSTIFICATION: Since it is law that has universal
applicability, it may be necessary, in public interest, to require
information from private institutions and since the law does not affect
them according to the interpretation of public/government institution and
public record or document as explained on page 13 of the Bill. Reference
to this on the same page on EXPLANATORY MEMORANDUM is not enough.
This casual reference to private sector misleading, it
should therefore be reflected in the Title/Preamble and in all sections
where reference is made to that element.
Such as in Section 3 of the Short Title/Information
about government institution page 1.
This observation also affects subsection 4 under Request
for Access to records page 2.
The draft should be reconstructed to include private
institutions. Same for sections 13 and 14 under International affairs
and defence, Law enforcement and investigations page 6.
This also applies to most other sections such as sections
17,18,19, 20, 21, 22 and 23 where references are copiously made to: The
head of a government or public institutions may refuse… sections
19-23.
The draft should reflect the aforementioned reality - that
private institutions should be included. There are more sections. This
should be corrected at the point of concurrence at the Senate.
On Fees, etc. And action for waivers
section 9 (page 4). We are of the opinion that section 9 that gives the
institutions latitude to fix fees is critical for sustainability, but
require to be defined so it does not limit the access of the common man
and the poor who may not be able to afford such cost. Provision in 9(a)
and (b) that Fees shall be limited to reasonable standard charges…
are too elastic. It can be abused ostensibly by hostile institutions
through introduction of prohibitive charges:
Can the charges be fixed or limited to certain amount in
the law that recognises affordability and pervasive poverty of the teeming
masses of Nigerian people who will also need such information to be able
to enforce their rights.
NO SANCTION?
Lest we forget Section 8 which addressed the issue of where
access is refused in page 3. We observe too that there is no sanction for
refusal. While Sections 23 (page 9) and 30 (page 10) protect officers that
refuse access, there sections are too protective. There should still be
some sanctions for refusal of access information.
AMBIGUITY
Section 12 of (p 5) stating, where information is not
available in 'distinct' or 'discrete' form.
Interpreting Section 34
We feel that the term public interest should be
operationally defined to elicit key indices for application in specific
cases as antidote so that it does not provide an escape route or cover.
The term (if not defined) too can be exploited by dubious seeker of
information.
We observe that the Conference of the whole National
Assembly should meet to fast track consideration of the bill so that
Nigeria can be the second country in Africa to have Freedom of
Information.
South Africa has been the first. Ghana is close to enacting
its own. This should however be without prejudice to having a water tight
legislation that is well thought-through and implementable plus
sustainable.
NO REGULATORY BODY
Last word: What will be the
institutional framework for managing enforcement of the Act when passed?
Is a Commission or Bureau as Regulatory body to enforce the Law intended?
Or is the information Ministry intended as the regulatory agency?
Thank you.
Bureau of Public Service Reforms
Office of the Head of Service of the Federation, The
Presidency,
Plot 1463, Mamman Nasir Crescent
Off T.Y Danjuma, Asokoro
tolaopa2003@yahoo.com, 08037020617; 09.3144549 |
