All Public Institutions Must Prepare Themselves for the Effective Implementation of the FOI Act, Says Judge
In the Federal High Court
Holden at Lagos, Nigeria
On Tuesday the 2nd Day of October, 2012
Before the Honourable Justice M.B. Idris, Judge
Suit No. FHC/L/CS/494/2012
Between:
Mr. Boniface Okezie – PLAINTIFF
And
The Central Bank of Nigeria – RESPONDENTS
Questions for Determination
The Originating Summons in the action is dated May 10, 2012. The question posed for determination is as follows: Whether having regard to the provisions of the Freedom of Information Act, 2011, the Defendant is not under a duty to make available to the plaintiff the information requested in the Plaintiff’s letter of 26 January 2012.
The Reliefs sought are as follows:
1. An Order of the court directing the Defendant to release to the Plaintiff forthwith the following information as demanded by the Plaintiff through his Solicitors in a letter to the Defendant dated 26 January, 2012:
a. The cost to Central Bank of Nigeria (CBN) and the Government and people of Nigeria so far of the banking reforms instituted by the CBN and particularly;
b. The amount of legal fees and other fees paid and to be paid to professionals and professional bodies;
c. How much of the amount in (a) above represents fees paid and to be paid to the firms of:
(i) Olaniwun Ajayi LP of The Adunola, Plot 12, 401 Close, Banana Island, Ikoyi, Lagos, and
(ii) Kola Awodein & Co of 6th floor, UBA House, 57, Marina, Lagos
d. What is the total sum paid to the firm of Olaniwun Ajayi LP in respect of the prosecution of Cecilia Ibru, former Managing Director of Oceanic Bank Plc, and how much of this sum was in the form of Commissions on the properties recovered from her.
e. The total cash and value of properties recovered from Cecilia Ibru.
f. The whereabouts of the money and properties recovered.
g. What part of this cash and properties has been returned to Oceanic Bank and/or its shareholders.
2. And for such further or other reliefs as the Court may deem fit to make in the circumstances of the case.
Summary of the Facts
The application was supported by an affidavit of 7 paragraphs and a written address. In the said affidavit, the following declarations were made:
I, Kingsley Isicheli, male Christian, Nigerian Citizen of Reinsurance House 46 Marina, Lagos State, do hereby make an oath and states as follows:
1. That I am a Legal Practitioner in the law firm of Indemnity Partners.
2. That I have the consent of the Plaintiff and that of my employer to depose to this affidavit.
3. That on behalf of the Plaintiff and upon his instruction, the firm wrote the Defendant a letter dated 26 January 2012 wherein we requested of the Defendant of the following information within its custody:
a. The cost to Central Bank of Nigeria (CBN) and the Government and people of Nigeria so far of the banking reforms instituted by the CBN and particularly;
(i) The amount of the legal fees and other fees paid and to be paid to professionals and professionals bodies.
(ii) How much of the amount in (a) above represents fees paid and to be paid to the firms of:
(iii) Olaniwun Ajayi LP of The Adunola, Plot L2, 401 Close, Banana Island, Ikoyi, Lagos, and
(iv) Kola Awodein & co of 6th Floor, UBA House, 57, Marina, Lagos.
b. What is the total sum paid to the firm of Olaniwun Ajayi LP in respect of the prosecution of Cecilia Ibru, former Managing Director of Oceanic Bank Plc and how much of this sum was in the form of Commissions on the properties recovered from her.
c. The total cash and value of properties recovered from Cecilia Ibru.
d. The whereabouts of the money and properties recovered.
e. What part of this cash and properties has been returned to Oceanic Bank and/or its shareholders.
4. That the Defendant acknowledged the receipt of the letter on 3 February 2012. A copy of the letter showing the acknowledgement and of receipt by the Defendant is hereby attached as exhibit A.
5. That the Defendant is a public body agency or institution of Government created by law.
6. That the Defendant has neglected refused or failed to make available the requested information to the Plaintiff.
7. That I make this affidavit in good faith believing same to be true and correct and in accordance with the oaths Laws of Lagos State.
The Defendant filed a Counter affidavit on 7 June 2012, and a written address in opposition. In the affidavit, the deponent declared as follows:-
I, Chiaka Ihuarula Sylvia Mogaha, Female, Christian, of Central Bank of Nigeria, Tinubu Square, Lagos do hereby make oath and state as follows:
1. I am a senior legal officer in the employment of the Defendant and as such I am conversant with the facts herein deposed to.
2. I have the consent of my employer to depose to this affidavit.
3. The Defendant was served with the Respondent’s Originating Summons dated 10 May 2012 to determine whether the Defendant is not under a duty to make available to the Plaintiff the information requested in the Plaintiff’s letter dated 26 January 2012 in compliance with the provisions of the Freedom of Information Act.
4. Attached to the affidavit in Support of the said Originating Summons is a letter dated 26 January 2012 requesting for some information and addressed to the Defendant.
5. The said letter dated 26 January 2012 was received by the Defendant.
6. The information requested in the said letter related primarily to the professional fees paid to two of the firms of lawyers handling various matters for the Defendant.
7. On receipt of the said letter, the Defendant’s legal department was requested to look at the propriety of releasing the information sought by the Plaintiff.
8. The Defendant was advised against releasing such information as its release would violate the legal practitioner–client privilege.
9. Based on the advice obtained from the Defendant’s legal department, the Defendant took the decision to deny the Plaintiff’s application for information.
10. Particularly, the Defendant denied the Plaintiff’s application for the following reasons inter alia;
(a) The information sought in the said application relate to the contractual relationship and negotiations between the Defendant and legal practitioners and other professionals engaged by the Defendant for their services to the Defendant.
(b) The said information sought by the Plaintiff is specifically on the remuneration of the said legal practitioners and other professionals for their services to the Defendant, and if disclosed, would adversely interfere with the contracts and negotiations for services between the Defendant and those professionals.
(c) It is a momentous condition of the service by those professionals to the Defendant that their remuneration shall never be disclosed to any third party.
11. I sincerely believe that it is in the interest of justice to refuse the Plaintiff’s application.
12. I make this affidavit in good faith believing the same to be true and correct and in accordance with the Oaths Act.
The Plaintiff filed a Reply to the counter-affidavit and a reply address on points of law on 2 July 2012. In the reply affidavit, the following declarations were made:-
I, Boniface Okezie, male, Nigerian investor of the Christian faith and President of the Progressive Shareholders Association of 206, Herbert Macaulay Street, Yaba, Lagos, hereby make oath and state as follows:
1. It is common knowledge that the National Assembly being concerned about the free and non-transparent spending of the present CBN Governor, Mallam Lamido Sanusi, of public funds is now considering a bill to amend the CBN Act in order to curb the powers of the holder of that office over decision making within the institution and subject its budget to appropriation.
2. It is also common knowledge that the CBN Governor has spent in excess of the national budget in the last three years supposedly in pursuing banking reform although the total exposure of banks in the discount window under his predecessor was a meager N220 billion.
3. I know that hundreds of billions of Naira were said to have been recovered from Mrs. Cecilia Ibru, the former CEO of Oceanic Bank Plc which were said to have been stolen from the bank.
4. I know that the CBN Governor has through his policies forced the shareholders of Oceanic Bank Plc into an acquisition by Ecobank Plc in which they lost about 75% of the value of their shares to the acquiring bank and its shareholders but I am not aware that the hundreds of billions of Naira said to have been recovered from the said Cecilia Ibru was returned to the bank and its shareholders and therefore was taken into account in the valuation of their shares in the acquisition transaction.
5. I am also not aware to what extent the capital injected or to be injected by the said Ecobank Plc, being the advantage it was to bring into the said Oceanic Bank Plc, exceeded the said hundreds of billions of Naira said to have been recovered from the said Mrs. Ibru.
6. I have also heard the rumour amongst the public that the said CBN Governor and his associates within and outside Government have either embezzled, misappropriated or otherwise dissipated the recovered funds and property or otherwise, cannot account for them,
7. I therefore believe that there is strong and compelling public interest in the disclosure of the information sought from the Defendant which would set the records straight concerning its expenditure of public funds and assist the taxpaying public to better assess the cost effectiveness of the self-styled banking reform programme embarked upon by its present Governor, and that this interest outweighs by far the concerns it has expressed in its counter-affidavit.
8. My Solicitor, Chuks Nwachuku, now informs me and I verily believe that it is not the usual practice of lawyers to force their clients, particularly Government or public institutions into no-disclosure agreement in relation to their fees.
9. I therefore believe that the deposition of the defendant that it has entered into such non-disclosure agreement is an afterthought.
And I make this oath in honesty believing the same to be true and correct and in accordance with the Oaths Act.
At the hearing, learned Counsel for the Plaintiff adopted the processes filed and urged the Court to grant the reliefs sought in the Originating summons. Learned Counsel for the Defendant also relied on the processes filed, and adopted the written address. Learned Counsel urged the Court to discountenance the reply affidavit and the accompanying written address because the reply affidavit contained fresh facts and that the reply address was tied to those facts. That there was no direct nexus between section 16 (a) and the FOI Act and section 192 (1) of the Evidence Act, and that the two Acts addressed different situations.
In reply, Learned Counsel for the Plaintiff argued that the reply affidavit was competent and that in interpreting the provisions of the FOI Act, the Court should have recourse to the canons of interpretation. It was contended that questions not addressed by Counsel should be taken as admitted and reference was made to questions (e), (f) and (g) on the Originating Summons, and the Court was urged to grant the reliefs sought.
The learned trial judge said he had read the processes filed, including the written addresses. He said he has also carefully considered the submissions made in the addresses and those made orally in open Court at the hearing of the case.
He said the question for determination is whether having regard to the provisions of the Freedom of Information Act (FOI Act), the Defendant is not under a duty to make available to the Plaintiff the information requested in the said Plaintiff’s letter of 26 January 2012.
The judge noted that historically, freedom of information legislation comprises laws that guarantee access by the general public to data held by its government and that they establish what is known as a “right to know” legal process by which requests may be made for government-held information, to be received freely or at minimal cost, having standard exceptions.
He also noted that over 90 countries around the world have implemented some form of legislation guaranteeing the right of access to information with Sweden’s Freedom of the Press Act, 1766 being the oldest of such legislation in the world.
According to the judge, a basic principle behind most freedom of information legislation is that the burden of proof falls on the body asked for information, not on the person asking for it. He added that the person making the request does not usually have to give an explanation for their actions, but if the information is not disclosed, a valid reason has to be given.
The judge said “if a public authority receives a request for information which it has obtained from another person and that public authority holds the information subject to a duty of confidence, that information will be exempt if providing it to the public would constitute an actionable breach of that confidence.”
The learned judge identified the highlights of the Freedom Information Act, saying that there is no doubt that it is intended to act as a catalyst for change in the way public authorities approach and manage their records.
He said under the FOI Act, any individual is able to make a request to a public institution for information and that an Applicant is entitled to be informed in writing as to whether the information is held and have the information communicated to them.
He noted that if any of the information is refused, the organization must provide the Applicant with a Notice which clearly states the reasons why it is withholding the information that has been requested.
He noted further that an Applicant may not be able to get all the information he wants as the Act requires that there will be valid reasons why some kinds of information may be withheld, such as if the release would prejudice national security or commercial interests. He cited generally sections 1, 12, 14, 15, 15, 17, 19, 20 and 21 of the FOI Act.
The judge also observed that public institutions are expected to have information communicated to an Applicant promptly but not later than seven days after it has received a request, adding that where a request is refused, the public institution shall give notice to the Applicant and should state the exemption providing the basis for refusal within the FOI Act and why it applies to the information requested. This notice, he said, must also be communicated to the Applicant within seven days.
He explained that there are two general categories of exemption, namely:
(a) Absolute exemptions: which are those where there is no duty to consider the public interest; and
(b) Qualified exemption: which are those where, even though an exemption exists, an authority has a duty to consider whether disclosure is required in the public interest.
The judge explained further that the public interest test requires an authority to determine whether the public interest in withholding the information outweighs the public interest in disclosing it by considering the circumstances of each particular case in the light of the potential exemption which might be claimed, adding that “the balance lies in favour of disclosure since withholding outweighs disclosure, imperatively.”
According to him, the public interest test applies to the exemptions contained in section 15(1) and 16 of the FOI Act.
The judge proceeded to deal with the issues of information provided in confidence under section 15(1) (a); legal professional privilege under section 16 (a); and information expected to interfere with the contractual or other negotiations of third party under section 15(1) (b) of the FOI Act.
He noted that Section 15(1)(a) in part provides an exemption to the right of access under the FOI Act if release would be an actionable breach of confidence, adding that this exemption qualifies the right of access under the FOI Act by reference to the common law action for “breach of confidence”.
He said according to that action, if a person who holds information is under a duty to keep that information confidential (a ‘ duty of confidence’), there will be a ‘breach of confidence’ if that person makes an unauthorized disclosure of the information.
He explained that the concept of ‘breach of confidence’ has its roots in the notion that a person who agrees to keep information confidential should be obliged to respect that confidence. However, he said, the law has now extended beyond this and the Courts recognize that a duty of confidence may also arise due to the confidential nature of the information itself or the circumstances in which it was obtained.
The judge said the concept of ‘breach of confidence’ recognizes that unauthorized disclosure of confidential information may cause substantial harm. For example, the disclosure of a person’s medical records could result in a serious invasion of that person’s privacy, or the disclosure of commercially sensitive information could result in substantial financial loss. The law therefore protects these interests by requiring the information to be kept confidential and if information is disclosed in breach of a duty of confidence, the Courts may award damages, or another remedy, to the person whose interests were protected by the duty.
According to the judge, this exemption only applies if a breach of confidence would be ‘actionable’ and a breach of confidence will only be ‘actionable, if a person could bring a legal action and be successful.
He said the Courts have recognized that a person will not succeed in an action for breach of confidence if the public interest in disclosure outweighs the public interest in keeping the confidence, adding that although, the Act requires no explicit public interest test, an assessment of the public interest must still be made. He said further that the factors the Courts have considered to date and the weight they give to them are not the same.
The judge said “if a public authority receives a request for information which it has obtained from another person and that public authority holds the information subject to a duty of confidence, that information will be exempt if providing it to the public would constitute an actionable breach of that confidence.”
He said further that “whether or not a public authority holds information subject to a duty of confidence depends largely on the circumstances in which it was obtained and whether the public authority expressly agreed to keep it confidential. A duty of confidence may also arise due to the confidential nature of the information itself.”
According to him, if a request includes information which may fall within this exemption, three questions must be asked. If the answer to any of the questions is ‘no’, the information will not be exempt under section 15. The questions are:
• Was the information obtained by the public authority from any other person?
• Is the information held subject to a duty of confidence (express or implied)?
• Would the disclosure of this information to the public, otherwise than under the Freedom of Information Act, constitute an actionable breach of confidence? This will include consideration of whether there would be a defence to an action for breach of confidence.
Examining the first question, the judge said section 15 of the FOI Act only protects information which was obtained by a public authority from a person, including another public authority, and that the origin of the information could be an individual, or a group of individuals or an organisation.
He said further that “whether or not a public authority holds information subject to a duty of confidence depends largely on the circumstances in which it was obtained and whether the public authority expressly agreed to keep it confidential. A duty of confidence may also arise due to the confidential nature of the information itself.”
He said while the exemption may apply where a duty of confidence is owed by one public authority to another, it will not apply where both of those public authorities are government departments, adding that “although government departments are treated as separate persons for the purposes of freedom of information, a government department cannot claim that the disclosure or any information by it would constitute a breach of confidence actionable by any other government department.”
The judge said the phrase ‘from a person’, will usually require the information to have been obtained from outside the department and not from an employee but added that this will not always be the case.
He noted that Section 15 of the FOI Act may apply where disclosure would breach a duty of confidence which a public authority owes to an employee in their private capacity but that on the other hand, if the information is disclosed in the course of employment, when an employee is acting on behalf of the public authority and solely in the capacity of employee, there will be no duty of confidentiality for the purposes of section 15.
He noted further that the person from whom the information was obtained may not be the same person whose confidence is being protected as the information may have passed through the hands of another person before reaching the public authority.
Examining the question, whether the Information held is subject to a duty of confidence, the judge observed that public authorities routinely hold information which has been obtained from other public bodies, private organizations and individuals to which obligations of confidence are likely to attach. He gave examples as: frank exchanges of views with other public authorities, information which is commercially sensitive: and the personal, private information of individuals.
But he said information will only be held subject to a duty of confidence if it has the ‘necessary quality of confidence’ and cited Coco vs. AN Clark (Engineers) Ltd (1969) R.P.C. 41. He explained that this means that it must be information which is worthy of protection and that someone must have an interest in the information being kept confidential. For example, he said, even if a commercial contract states that everything in the contract is ‘confidential’, any useless or trivial information cannot be confidential and no duty of confidence will arise in relation to that information.
The judge explained further that for information to be ‘confidential’ it must also be ‘inaccessible’ in the sense of not being in the public domain or a matter of public knowledge, adding that whether information is in the public domain is a question of degree and will depend on the circumstances and the extent or public knowledge at the time when disclosure is required.
He said information relating to an act which is done in a public place may still be private information and, equally, an activity is not necessarily private simply because it is not done in public. For example, he said, in Campbell vs MBN Limited (2004) 2 All ER 995, the House of Lords founds that publication of a photograph of the claimant leaving a narcotics anonymous meeting could be a breach of confidence. Even though the claimant had been in a public place, the photograph enabled the location of the claimant’s treatment for her addition to be identified.
He said the Courts will recognize that a person holds information subject to a duty of confidence in two types of situations, namely:
• Where that person expressly agrees or undertakes to keep information confidential: there is an express duty of confidence.
• Where the nature of the information of the circumstances in which the information is obtained imply that the person should keep the information confidential: there is an implied duty of confidence.
Discussing the first situation, he said where a public authority expressly agrees to keep information confidential there is an express duty of confidence, provided that the information has the necessary quality of confidence. For example, he said, where a public authority signs a contract which contains a confidentiality clause or agrees in correspondence that, if information is provided, it will be kept confidential.
The judge said while it will usually be a question of fact whether a public authority has agreed to or undertaken a duty of confidence, there are important policy considerations involved in the question of whether it is appropriate for a public authority to agree to a duty of confidence. He added that public authorities must consider the application of this exemption not only when disclosure of confidential information is requested but also when potentially confidential information is obtained, “If information does not need to be kept confidential but a public authority expressly agrees to keep it confidential when it is obtained, this may result in the information being exempt from the Act under section 15. In light of the public interest in open government and freedom of information, public authorities must consider carefully whether it is appropriate to agree to keep information that it receives confidential.”
The judge noted that when considering whether to agree to hold information subject to a duty of confidentiality, a public institution should consider:
• The nature of the interest which is to be protected and whether it is necessary to hold the information in confidence in order to protect that interest.
• Whether it is possible to agree to a limited duty of confidentiality, for example by clearly stating the circumstances in which a public authority would disclose information.
• Whether the information will only be provided on the condition that it is kept confidential and, if so, how important the information is in relation to the functions of that public authority.
• The nature of the person from whom the information is obtained and whether that person is also a public authority to whom freedom of information and the Code of Practice applies, adding that where the person supplying the information is also a public authority, departments must be particularly cautions is agreeing to keep the information confidential.
He stressed that if it is necessary and justifiable for a public authority to agree to keep the information confidential, that public authority should take practical steps to respect the confidential nature of the information, adding: “Ensuring that the circulation of confidential information is controlled and that the confidential status of that information is regularly reviewed will assist with responding to future freedom of information requests.”
On the question of where the nature of the information or the circumstances in which the information is obtained imply that the information should be kept confidential, the judge said “An implied duty of confidence can arise even though a public authority has no pre-existing relationship with the person to whom the duty is owed, or has not agreed to keep the information confidential.”
He said some information which is obtained by a public authority will be manifestly confidential and that by its very nature it will be clear both that substantial harm could be caused by its disclosure and that the public authority should not disclose it to members of the public. For example, he said, where a public authority obtains the medical records of an individual, in most circumstances, it will be clear that disclosure of that information to the public could cause substantial harm and offence to that individual. In this type of situation, he said, the law may step in to imply a duty of confidence. The public authority may then be obliged, by virtue of the very nature of the information, to keep it confidential.
He said whether the nature of the information concerned means that it is held subject to a duty of confidence is a question of degree and will, to a certain extent, depend on the circumstances at the time that disclosure is requested.
The judge also noted that the circumstances in which information was obtained may impose an implied duty of confidence in relation to information which is not obviously of a confidential nature such as where the public authority may not be immediately aware of its confidential nature. For example, he said, if a public authority has statutory powers of compulsion, that is to say if it can legally oblige people to provide information for certain purposes, a duty of confidentiality will often arise in relation to that information and the public authority may be prohibited from disclosing the information in other contexts.
He said this may also apply where information is provided under ‘threat of compulsion’ such as where a person provides information to a public authority in the knowledge that if they did not do so, the public authority would use its powers to compel disclosure.
Additionally, he said, when a public authority obtains information for a particular purpose, a duty of confidentiality may arise which prevents that information being used for a different purpose. For example, he said, confidentiality attaches to information which is given to the Police during the course of a criminal investigation, whether it is given by a suspect under caution or by a potential witness. He referred to Frankson and Others vs Home Office; Johns vs Office (2003) I WLR 1953, in particular per Scott Baker L.J at 35.
He said other factors which may be relevant to ascertaining whether information is held subject to an implied duty of confidence could include:
• Whether there is a long-standing, consistent and well-known practice on the part of the public authority of protecting similar information against disclosure and the supplier of the information could reasonably have expected this to continue.
• Whether the information is provided gratuitously or for consideration and in the latter case, it is less likely that an obligation of confidence would arise.
The judge said whether an implied duty of confidence arises is essentially a question of law and that if a public authority has not expressly agreed to keep information confidential but suspects that a duty of confidence may be implied, it will often be necessary to seek legal advice.
He also examined the question whether the disclosure of this information to the public, otherwise than under the Freedom of Information Act, would constitute an actionable breach of confidence.
He said for a disclosure to breach a duty of confidence it must be unauthorized and unauthorized disclosure could take place where disclosure runs contrary to the express wishes of the person to whom the duty is owed or where a department does not have the consent of the person concerned.
HE added that if a person has sanctioned disclosure of the information, for example if they have expressly consented to disclosure, section 15 will not apply as disclosure would not be a breach of confidence actionable by that person.
He said the English Courts have recognised that disclosure will not constitute an actionable breach of confidence if there is a public interest in disclosure which outweighs the public interest in keeping the information confidential, adding that when considering the application of section 15, departments must consider whether the public interest in disclosure of the confidential information concerned means that it would not constitute an actionable breach of confidence to disclose that information to the public.
He said the following principles must be applied when conducting this balancing test:
• Where a duty of confidence exists, there is a strong public interest in favour of keeping that confidence.
• There is no general public interest in the disclosure of confidential information in breach of a duty of confidence. If the public interest in keeping the confidence is to be outweighed it will be necessary to identify a specific interest in favour of disclosure.
• There is a public interest in ensuring public scrutiny of the activities of public authorities. If disclosure would enhance the scrutiny of the activities of public authorities then this will be a factor in the balancing exercise. However, where the interests of a private person are protected by a duty of confidence, whether an individual or an organisation, the general interest in public scrutiny of information held by a public authority is unlikely in itself to override the public interest in keeping the confidence.
• The Freedom of Information Act itself has no influence on the weight which attaches to the public interest in the disclosure of information for the purposes of section 15.
• The English Courts have traditionally recognized that the defence to breach of confidence in the public interest applies where disclosure would protect public safety, or where there has been wrongdoing, such as misfeasance, maladministration, negligence or other iniquity on the part of the public authority.
• When considering the balance of interests, public authorities must have regard to the interests of the person to whom the duty of confidence is owed, the public authority’s own interests in non-disclosure are not relevant to the application of this exemption.
• No regard may be had to the identity of the person who is requesting the information nor to the purpose to which they will put the information. The question is whether disclosure ‘to the public’ would be a breach of confidence, and not whether disclosure to the particular person requesting the information from a journalist or pressure group must be treated in the same way as a request from a person who is conducting historical research.
The judge said that if this exemption is wrongly applied and information is incorrectly withheld, a public authority may face sanctions under the Act for not complying with the duty to provide information. He added that however, if the exemption is wrongly applied and information is incorrectly disclosed, a public authority may, in some circumstances, face an action for breach of confidence.
He noted that in balancing the relevant public interests, the question to be asked is what conclusion would a Court come to if the information were disclosed to the public and an action for breach of confidence was brought? That is to say:
• If a Court would conclude that the public interest in disclosure to the public outweighed the public interest in keeping the confidence then the information will not be exempt under section 15 and unless another exemption applies, the information must be disclosed.
• If a Court would conclude that the public interest in disclosure did not outweigh the public interest in keeping the confidence, the information will be exempt and the request should be refused on the basis of section 15.
The judge said that when considering the public interest test, one should not consider the motive for the freedom of information request nor the effect which disclosure to that particular requester would have, adding that however, one must consider the effect that disclosure to the public would have.
He gave examples of cases where there may be a public interest in the disclosure of confidential information to include:
• Information revealing misconduct/mismanagement of public funds
• Information which shows that a particular public contract is bad value for money.
• Where the information would correct untrue statements or misleading acts on the part of public authorities or high-profile individuals.
• Where a substantial length of time has passed since the information was obtained and the harm which would have been caused by disclosure at the time the information was obtained has depleted.
He also gave examples of cases where the public interest is unlikely to favour the disclosure of information to likely include:
• Where disclosure would provoke some risk to public or personal safety.
• Where disclosure would be damaging to effective public administration.
• Where there are contractual obligations in favour of maintaining confidence.
• Where the duty of confidentiality arises out of a professional relationship.
• Where disclosure would affect the continued supply of important information such as information provided by whistleblowers.
• Where information was provided under compulsion.
But he stressed that these examples are for illustrative purposes only, adding that decisions on which the delicate balance of arguments may rest will vary on a case by case basis.
The judge said Section 16(a) applies to information that would be subject to legal professional privilege and that legal professional privilege covers confidential communications between lawyers and clients and certain other information that is created for the purposes of litigation. He explained that Section 16 ensures that the confidential relationship between lawyer and client is protected.
He said Section 16 is subject to a public interest balance, adding that the English High Courts have recognized that there is generally a very substantial public interest in maintaining the confidentiality of legally privileged material, and that as such equally weighty factors in favour of release must be present for the public interest to favour disclosure. He referred to Dr. John Pugh, MP vs Information Commissioner and Ministry of Defence (EA/2007/0055) 17TH December 2007 and Dept. of Business and Regulatory Reform vs O’Brien (2009) EWHC 164 (QB)
The judge explained further that Legal Professional Privilege (LPP) is a rule of litigation that protects, in general terms, confidential communications between lawyers and their clients, adding that it may also cover some communications between a lawyer and third parties for the purposes of preparing litigation. He said under the litigation rule, if material is subject to LPP, a party generally does not have to disclose it during the course of legal proceedings.
He said the principle of LPP has been established by the Courts in recognition of the fact that there is an important public interest in a person being able to consult his or her lawyer in confidence and that the Courts do not distinguish between private litigants and public authorities in the context of LPP. He added that just as there is public interest in individuals being able to consult their lawyers in confidence, there is public interest in public authorities being able to do so.
He held that Section 16 applies to information in respect of which a claim to LPP could be maintained in legal proceedings and that it does not require that any legal proceedings are in fact in progress, although it will certainly be of potential relevance where that is the case.
He noted that LPP can be waived, both intentionally and unintentionally, adding that as the privilege belongs to the client not the lawyer, it is for the client to choose whether to waive privilege.
He also noted that prior to the FOI Act, intentional waiver would generally occur in the context of litigation, and based upon the government’s assessment of the interests of justice in a particular case. He said waiver can also occur in part, where advice is disclosed to a third party under strict conditions. He added that special rules also apply where legal advice is relied upon in the course of Court proceedings. He referred to Foreign and Commonwealth Office vs The Information Commissioner (29 April 2008) (EA/2007/0092).
The judge said waiver may also result from unintentional or erroneous disclosure, adding that as an example, revealing the substance of legal advice when explaining a decision may constitute waiver. He said where LPP is waived, the advice is no longer privileged and section 16 cannot be relied upon.
“although government departments are treated as separate persons for the purposes of freedom of information, a government department cannot claim that the disclosure or any information by it would constitute a breach of confidence actionable by any other government department.”
He noted that LPP predominantly attaches to communications with lawyers, adding that this may include communications between a public authority and:
• external lawyers in private practice, including solicitors or counsel,
• its own salaried in-house legal advisers, including those retained or employed by public authorities such as government departments in their own legal departments, and
• lawyers employed by other public authorities.
He said in certain circumstances, legal communications with third parties may attract LPP, such as when seeking evidence from an expert, for the purposes of litigation. He referred to Anderson vs Bank of British Columbia (1876) 2 CH D 644.
But he said just because a document has been to or comes from a lawyer does not necessarily mean it will be protected by LPP as it will need to come within one of the two categories of LPP: advice privilege and litigation privilege. He explained further that:
• Advice privilege relates to communications between a person and his lawyer provided they are confidential and written for the purpose of obtaining legal advice or assistance in relation to rights and obligations. He noted that the leading judgment is that of the House of Lords in Three Rivers District Council &Ors vs Governors and Company of the Bank of England (2004) UKHL 48.
• Litigation privilege attaches to confidential communications that come into existence when litigation is in reasonable prospect or it pending, for the dominant purpose of giving or getting advice in regard to the litigation or collecting evidence for use in the litigation. It applies to communications between the client and his lawyer, whether direct or through an agent, or between any one of them and a third party.
He said legal communications must retain a quality of confidence to attract LPP and that communications will be “confidential” if they have taken place in circumstances where a relationship of confidence is express or can be implied. He added that both lawyer and client generally expect their communications to be confidential and that indeed, professionally, lawyers owe their clients a duty of confidence. He said correspondence between lawyers acting for the same client may also attract LPP.
The judge said information which is protected by LPP may be disclosed to one person on terms that it is to be treated as confidential so that the quality of LPP is not lost.
Within government, he said, the involvement of several departments in such communications will not erode the quality of confidence but if legal advice received by a department is widely shared beyond government and its agencies, consideration will need to be given as to whether it is still confidential for these purposes. He said the issue whether or not LPP has been waived, thereby losing the protection of the privilege, is a complex question of law which will turn on the specific facts of the case.
He said it should also be remembered that LPP may apply to a summary of legal advice, even when the source of that summary is not the advising lawyer. He noted that in USP Strategies vs London General Holdings Ltd (2004) EWHC 373 (CH), Mr. Justice Mann held that privilege extends to material which ‘evidences or reveals the substance of legal advice’. He said the Tribunal followed this approach in the case of Mr. M. Shipton vs Information Commissioner and National Assembly of Wales (EA/2006/0028), finding that a civil servant’s submission to a Minister which summarized the legal advice that had been received was also covered by LPP.
The judge said Section 16 is subject to a public interest balance. Therefore, if it has been decided that information falls within the terms of section 16, it is necessary to consider whether or not the public interest in withholding the information, outweighs the public interest in disclosing it.
He noted that the Courts have historically recognized the important public interest in the proper administration of justice, and have noted the key role LPP plays in maintain this. He referred to R. VS. Derby Magistrates’ Court, EX P.B. (1996) AC 487, 507 where Lord Taylor CJ described LPP as “a fundamental condition on which the administration of justice as a whole rests.”
He said in Derby Magistrates’, Lord Taylor CJ observed that “the principle that runs through all these cases … is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent”. He also said the consequences of disclosure were noted by Lord Taylor CJ at 508:’… once any exception to the general rule is allowed, the client’s confidence is necessarily lost’.
He said further that in the case of Mr. Christopher Bellamy vs The Information Commissioner and DTI (EA/2006/0023), the Tribunal considered the case law on LPP, finding that ‘… there is a strong element of public interest inbuilt into privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest’. The Tribunal has consistently followed this approach in further cases and referred to Mr. T. Kitchener County Council (20 December 2006) EA/2006/0044) and Mr. F. Adlam vs Info Commissioner and HM Treasury (5 November 2007) (EA/2006/0079).
“If information does not need to be kept confidential but a public authority expressly agrees to keep it confidential when it is obtained, this may result in the information being exempt from the Act under section 15. In light of the public interest in open government and freedom of information, public authorities must consider carefully whether it is appropriate to agree to keep information that it receives confidential.”
The judge said in February 2009, the High Court found in the case of the Department of Business and Regulatory Reform vs O’Brien (2009) EWHC 164 (QB) that the section 42 exemption has two key features: (a) it recognizes the in-built public interest/the weight with which must be given to LPP itself, and (b) the strength of the public interest in-built in to LPP itself.
Therefore, he said, although the exemption in section 16 is qualified and each case must be considered on its own merits, where information is withhold using this exemption it will be by virtue of the strong public interest consideration which is recognized by the English courts and the Tribunal.
He said further that it is in the public interest that the decisions taken by government are taken in a fully informed legal context where relevant Government departments therefore need high quality, comprehensive legal communication for the effective conduct of their business. That Communication/advice needs to be given in context, and with a full appreciation of the facts.
He said the legal adviser needs to be able to present the full picture to his or her department clients, which includes not only arguments in support of his or her final conclusions but also the arguments that may be made against them, adding that it is in the nature of legal advice that it often sets out the possible arguments both for and against a particular view, weighting up their relative merits. This, he said, means that legal advice obtained by a government department will often set out the perceived weaknesses of the department’s position.
He said without such comprehensive advice/communication that quality of the government’s decision making would be much reduced because it would not be fully informed and this would be contrary to the public interest.
The judge noted that disclosure of legal advice/communication has a high potential to prejudice the government’s ability to defend its legal interests – both directly, by unfairly exposing its legal position to challenge, and indirectly by diminishing the reliance it can place on the advice / communication having been fully considered and presented without fear or favour. He said neither of these is in the public interest, adding that the former could result in serious consequential loss, or at least in a waste of resources in defending unnecessary challenges while the latter may result in poorer decision-making because decisions themselves may not be taken on a fully informed basis.
He said there is also a risk that lawyers and clients will avoid making a permanent record of the advice/communication that is sought or given or make only a partial record and that this too would be contrary to the public interest. He stressed that it is in the public interest that the provision of legal advice is fully recorded in writing and that the process of decision making is described accurately and fully. He said as policy develops or litigation decisions are made it will be important to be able to refer back to advice given along the way.
He said at worst, there may even be a reluctance to seek the advice at all, which could lead to decisions being made that are legally unsound and that attract successful legal challenges, which could otherwise have been avoided. He stressed that government’s willingness to seek frank legal advice is essential in upholding the rule of the law.
The judge said that when considering the public interest test, one should not consider the motive for the freedom of information request nor the effect which disclosure to that particular requester would have, adding that however, one must consider the effect that disclosure to the public would have.
The judge noted that it is likely that legal advice given in one context will be helpful or relevant to subsequent issues, which means not only considering the circumstances in which future legal interests could be prejudiced but also bearing in mind that the public interest in protecting the confidential relationship between lawyer and client is a long term public interest which could be damaged by individual disclosures.
He said the disclosure of legal advice even when no litigation is in prospect may be a disadvantage to the government in future litigation as it is quite possible that legal advice in connection with one department will have wider implications for other departments so it is important that decision on disclosure are considered in their full context.
The judge said in some circumstances the public interest will require the disclosure of LPP material but that this is likely to be in those circumstances where the government would waive its privilege if litigation were in progress.
He said consideration will need to be given to other factors which need to be balanced against the public interest in the continuing confidentiality of legal advice, adding that there is a public interest in public authorities being accountable for the quality of their decision making.
According to him, ensuring that decisions have been made on the basis of good quality legal advice is part of that accountability while transparency in the decision making process and access to the information upon which decisions have been made can enhance accountability.
He also noted that it could be argued that there is a public interest in some cases in knowing whether or not legal advice has been followed, adding that however, the factual position is unlikely to be so simple.
He said the weights to be attached to these public interest factors will differ according to the case in question but that given the very substantial public interest in maintaining the confidentiality of LPP material, it is will give way to the public interest in disclosure.
According to him, it is to be understood that the principle of privileged communications embraces two concepts, which are: the confidentiality of communications between a legal adviser and client, and the privilege of communications made post litem motam (in contemplation of litigation).
The judge elaborated on the guiding principles of confidentiality of communications between legal adviser and client as follows:
• The privilege covers communications by solicitors, advocates, solicitor-advocates and advocate-clerks. It probably covers in-house lawyers and lawyers working for one public authority providing advice to another public authority.
• The legal adviser must be acting in his professional capacity and the communications must occur in the context of his professional relationship with his client.
• It is likely that communications are privileged whether or not they relate to pending or contemplated litigation.
• The privilege does not extend to matters known to the legal adviser through sources other than the client or to matter in respect of which there is no reason for secrecy. Communications which are intended to be ‘confidential’ in a non-legal sense are likely to attract the privilege.
• The privilege does not extend to communications which relate to fraud or the commission of an offence.
• Documents held by the legal adviser but prepared by others are not privileged, including communications between the client and third parties, but legal advice given by the legal adviser to client concerning the same documents is privileged.
• The fact that advice was sought is not necessarily privileged.
He said Section 15(1) (b) imposes an obligation on a public institution to deny an application for information whose disclose could reasonably be expected to interfere with the contractual or other negotiations of a third party and held that “a third party” includes a legal practitioner in the context of his professional relationship with his client.
He said what could severely prejudice the function of parties to a contract “could reasonably be expected to interfere with the contractual or other negotiations” of the said parties.
The judge noted that it is the case of the Defendant that the application of the Plaintiff related to the contractual relationship and negotiations between the Defendant and legal practitioners and other professionals engaged by the Defendant for their services to the Defendant, and that the said information was specifically on the remuneration of the said legal practitioners and other professionals for their services to the Defendant that if disclosed it would adversely interfere with the contracts and negotiations for services between the Defendant and those professionals. He noted further that it is also the case of the Defendants that it is a momentous condition of the services by those professionals to the Defendant that their remuneration shall never be disclosed to any third party.
The judge held that there was nothing exceptional in the Plaintiff’s affidavits that will persuade the Court to give way to the public interest in disclosing the amount of fees paid and to be paid to the two named firms of lawyers, namely Olaniwun Ajayi LP of The Adunola, Plot L2 401 Close, Banana Island, lkoyi, Lagos; and Kola Awotein & Co. of 6th Floor, UBA House, 57 Marina, Lagos.
He held further that where a duty of confidentiality arises out of a professional relationship and where there are contractual obligations in favour of maintaining confidence, a court will be reluctant to order disclosure, especially as in this case where there is no hard evidence of misconduct or mismanagement of public funds on the part of the Defendant.
The judge said in view of all of the above, he was refusing reliefs I (a), (b) (c) and (d) on the Originating summons and accordingly dismissed them.
He said he strongly observed that the Defendants did not either in its Counter affidavit or written address deal with the issues raised in respect of reliefs 1 (e), (f) and (g), noting that in paragraphs 3,4,5,6, and 7 of the Plaintiff’s reply to Counter Affidavit, the Plaintiff stated as follows:
I, Boniface Okezie, a male Nigerian investor of the Christian Faith and President of the Progressive Shareholders Association of 206, Herbert Macaulay Street, Yaba, Lagos, hereby make oath and state as follows:
1. It is common knowledge that the National Assembly being concerned about the free and non-transparent spending of the present CBN Governor, Mallam Lamido Sanusi, of public funds is now considering a bill to amend the CBN Act in order to curb the powers of the holder of that office over decision making within the institution and subject its budget to appropriation.
2. It is also common knowledge that the CBN Governor has spent several trillions of Naira and well in excess of the national budget in the last three years supposedly in pursuing banking reform, although the total exposure of banks in the discount window under his predecessor was meager N220 billion.
3. I know that hundreds of billions of Naira were said to have been recovered from Mrs. Cecilia Ibru, the former CEO of Oceanic Bank Plc., which were said to have been stolen from the bank.
4. I know that the CNB Governor has through his policies forced the shareholders of Oceanic Bank Plc into an acquisition by Ecobank Plc in which they lost about 75 per cent of the value of their shares to the acquiring bank and its shareholders but I am not aware that the hundreds of billions of Naira said to have been recovered from the said Cecilia Ibru was returned to the bank and its shareholders and therefore was taken into account in the valuation of their shares in the acquisition transaction.
5. I am also not aware to what extent the capital injected or to be injected by the said Ecobank Plc, being the advantage it was to bring into the said Oceanic Bank Plc., exceeded the said hundreds of billions of Naira said to have been recovered from the said Mrs. Ibru.
6. I have also heard the rumour amongst the public that the said CBN Governor and his Government have either embezzled, misappropriated or otherwise dissipated the recovered funds and property or otherwise, cannot account for them.
7. I therefore believe that there is strong and compelling public interest in the disclosure of the information sought from the Defendant which would set the records straight concerning its expenditure of public funds and assist the tax-paying public to better assess the cost effectiveness of the self-styled banking reform programme embarked upon by its present Governor, and that this interest outweighs by far the concerns it has expressed in its counter-affidavit.
8. My Solicitor, Chuks Nwachkwu now informs me and I verily believe that it is not the usual practice of lawyers to force their clients, particularly, Government or public institutions into non-disclosure agreement in relation to their fees.
9. I therefore believe that the deposition of the defendant that it has entered into such non-disclosure agreement is an afterthought.
AND I make this oath in honesty believing the same to be true and correct and in accordance with the Oaths Act.”
The judge said he was of the view that on receipt of the Plaintiff’s request, the Defendant had the duty to respond to same and that if it does hold the information, it must supply it within seven days from receipt of the request.
He held further that where a duty of confidentiality arises out of a professional relationship and where there are contractual obligations in favour of maintaining confidence, a court will be reluctant to order disclosure, especially as in this case where there is no hard evidence of misconduct or mismanagement of public funds on the part of the Defendant.
“It is in the interest of the public that the assets recovered from Cecilia Ibru, and the whereabouts of same be disclosed.” He said where a decision to withhold is taken, the Defendant must inform the Plaintiff of its reasons, adding that “In respect of these reliefs, the Defendant has kept mute.”
The judge stated that the Defendant has no such power under the law to keep mute.
According to him, “the Freedom of Information Act is meant to enhance and promote democracy, transparency, justice and development. It is designed to change how government works, because we have all resolved that it will no longer be business as usual. Therefore all public institutions must ensure that they prepare themselves for the effective implementation of the Freedom of Information Act.”
He said the Judiciary has no choice but to enforce compliance with the Freedom of Information Act as “The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law.”
He said: “What is done officially must be done in accordance with the law. Obedience to the rule of law by all citizens but more particularly by those who publicly took oath of office to protect and preserve the Constitution is a desideratum to good governance and respect for the rule of law. In a constitutional democratic society, like ours, this is meant to be the norm.”
He held that the action succeeded in part and that “It is in the interest of the public that the assets recovered from Cecilia Ibru, and the whereabouts of same be disclosed.”
He held that in the circumstances, reliefs I (a) (b) (c) and (d) are granted as prayed and directed the Defendant to release to the Plaintiff, within 72 hours of the making of the order the following information:
(1) The total cash and value of properties recovered from Cecilia Ibru;
(2) The whereabouts of the money and properties recovered; and
(3) What part of the cash and properties has been returned to Oceanic Bank and/or its shareholders.
C. Nwachukwu, with T. Uzokwe for the Plaintiff
A. Olawoyin, SAN, with E. Osuagwu (Miss), for the Defendant.
