FOI Act: Where His Lordship Got It Wrong

By Edetaen Ojo[1]

In a recent ruling, his lordship, Justice Gabriel O. Kolawole of the Federal High Court in Abuja suggested that the Freedom of Information Act, 2011 was somehow defective because it provides in Section 1(2) that an applicant seeking information from a public institution should not be required to demonstrate his or her interest in that information and called on the National Assembly to amend the Law to restrict its application.

Delivering his ruling in Suit No. FHC/ABJ/CS/402/2013: Between Paradigm Initiative Nigeria vs. Dr. Reuben Abati, his lordship declared confidently, but unfortunately, quite erroneously, that there is no “country in the world, where access to all forms of public records are thrown open even to an Applicant who is not required to show any specific interest in the information requested from a public body.”

Perhaps, if his lordship had been more circumspect on a matter which, by his own admission, he is not very knowledgeable about or if he had focused strictly on the issue that was before him or if he had invited counsel in the matter to first address him on the issue, he would not have fallen into such a grave error.

It is clear from reading through the ruling that although the issue was not even before him, his lordship had an intense desire to express his unhappiness with the Freedom of Information Act as most of his ruling dwelt on extraneous issues, which unfortunately betrayed his lack of understanding of the applicable principles and the specific provisions of the Law.

It is now well established under international law that the right of access to information is a human right which States are obliged to give effect to through appropriate legislation.  This view is now well settled in a string of decisions of international courts, most notably the judgment of the Inter-American Court of Human Rights in Claude Reyes and Others vs. Chile, delivered on September 19, 2006.  The judgment is available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_151_ing.doc.

Being a human right, people should not be required to give reasons for seeking to exercise or enjoy their human right, in the same way no one should be required to give a reason before they can exercise or enjoy the right to life, the right to freedom of expression, personal liberty, freedom from torture or any other fundamental right.

Indeed, in Claude Reyes case, the Inter-American Court of Human Rights held in Paragraph 77 of the decision that every person has a right to request information while states are under a positive obligation to provide it, adding that “The information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied.”

Most countries with FOI Laws have this basic principle incorporated in their laws to allow anyone to request information without having to demonstrate any interest in the information.  Indeed, in some countries such as Finland, the Law specifically allows people to make anonymous requests to ensure that requesters are not discriminated against.

To give a few examples, stipulations that requesters need not provide reasons for their requests or demonstrate any interest in the information requested can be found in the FOI laws of the following countries: Serbia – Article 15(4); India – Section 6(2); Liberia – Section 3.2; Mexico – Article 40; South Africa – Section 11(3); Finland – Article 13(1); Uganda – Article 6; United Kingdom – Section 8; Sweden – Article 14(3); Brazil – Article 10(3); Australia – Article 11(2); Canada – Section 6; among dozens of others.

His lordship’s assertion that no country in the world allows people access to information without requiring them to demonstrate specific interest in the information requested, could therefore not be more wrong.

Not only do most FOI Laws specifically stipulate that persons seeking information should not be required to demonstrate a specific interest or need for the information, this is indeed one of the defining principles of such laws.  It is also one of the attributes of a good and strong FOI Law such that what his lordship is proposing effectively amounts to urging the National Assembly to weaken the Nigerian Freedom of Information Act.

FOI laws are guided by a set of principles, which define the strength and quality of such Laws.  The very first set of Principles were drawn up by ARTICLE 19, the International Centre Against Censorship, in London in 1999. Titled: “The Public’s Right to Know: Principles on Freedom of Information Legislation,” the Principles were subsequently endorsed by the United Nations Special Rapporteur on the Protection and Promotion of the Right to Freedom of Opinion and Expression as well as the United Nations Commission on Human Rights.

The Principles state that: “Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information. Everyone present in the territory of the country should benefit from this right. The exercise of this right should not require individuals to demonstrate a specific interest in the information.” (Emphasis supplied)

Finally, his lordship’s proposition, if anyone were to actually attempt to give effect to the idea, is so untenable that it would be difficult to implement in any reasonable, practical or effective manner.

The idea would require that the National Assembly provides within the amended FOI Act a list of every conceivable reason or purpose that would be sufficiently acceptable or justifiable to entitle any person seeking information access to the information.  This is because if a person seeking information has to demonstrate a specific interest in the information or justify his or her need for the information, that interest or need would have to fall within a list of such reasons or needs that are recognized by the Law.

People seek information for such widely varied reasons, including a simple desire just to know, that it is difficult to imagine how the Law would approach such an exercise.  Going by his lordship’s views, the need or desire to know would, of course, not be an acceptable reason under this new FOI regime that he envisages.

An alternative could be having the National Assembly prescribe some standards that the interest or need stated by the person seeking information has to meet or satisfy.  Consequently, the Law would also have to give officials in all public institutions the discretion to determine if the stated interest or need meets or satisfies those standards.

In effect, officials of public institutions would have the right and power to say if your reason for seeking information is acceptable to them and, if not, to deny you the information.  It is not difficult to imagine how such a provision would be applied.

His lordship also expressed the view in his ruling that the FOI Act creates “a situation where scarce public resources, time and energy are permitted to be squandered in attending to a request for information which the person applying for it need not show that he needs”

It is quite unfortunate that his lordship considers it a waste of public resources, time and energy for public institutions to attend to the information needs of citizens and is unable to see the inherent benefits of a public policy which enables and indeed encourages citizens to demand accountability of their institutions and obliges those institutions to be transparent and accountable.

It has not been shown and indeed public institutions are not suggesting that operating a FOI regime in Nigeria has resulted in any substantial increase in costs to the government and other public authorities because most government agencies and departments in the country already have existing mechanisms for record keeping, although they might not be very efficient.  But even if the public institutions have to spend significant resources to improve their record-keeping and be accountable to citizens, such resources cannot be said to have been wasted by any stretch of the imagination.

The minimal cost element that may have arisen as a result of the enactment and implementation of the FOI Act would be justifiable given the immense benefits which a regime of access to information brings to the society by instituting greater transparency, accountability and efficiency.  Such costs ought to be seen by the government and his lordship in the light of the capacity of a Freedom of Information Act to advance democracy and enhance public participation. In addition, as time progresses and the public institutions become more efficient in their record keeping and in handling requests for information, the cost issues will reduce progressively.

The position of his lordship on these issues highlights the fact that while a good number of judges in Nigeria have made tremendous efforts to empower themselves on the jurisprudence of access to information laws, there is a burning need for the proper training of judges on what Justice Kolawole himself described in his ruling as “the novel nature of the rights” created by the FOI Act.  It is hoped that the National Judicial Institute (NJI) will take up this challenge and work with various interest groups sufficiently knowledgeable in this area to meet this need, which could be potentially embarrassing to the Judiciary if not addressed.