Judge Refuses MRA Leave in FOI Case, Says Suing is Premature 7 Months after FOI Request is Ignored

Justice Doris Okuwobi of the Lagos High Court sitting in Ikeja has refused a motion by Media Rights Agenda (MRA) seeking leave of the court to sue the Ojodu Local Council Development Area in Lagos State over its failure to disclose records requested by the organization under the Freedom of Information Act.

In her ruling delivered on June 19, 2017, Justice Okuwobi held that since the Council had not given MRA any written notice in accordance with Section 4(b) of the Freedom of Information Act that it would not grant access to the information requested by the organization since November 4, 2016 nor given any reason for denying access to the information, the application for leave was “premature”.

MRA’s Executive Director, Mr. Edetaen Ojo, described the ruling as “ridiculous”, saying the degree of “deliberate ignorance” betrayed by the decision was capable of bringing the Judiciary into disrepute.

By a letter dated November 4, 2016, addressed to the Ojodu Local Council Development Area, titled “Request for Records of Water Works Plans for Araromi Zion Estate”, MRA asked the Council to provide it with information

MRA subsequently filed an application on December 6, 2016, naming the Ojodu Local Council Development Area and the Attorney-General of the Federation as Defendants, and seeking leave of the court to apply for:

• A declaration that the failure and/or refusal by the Council to disclose or make available to MRA the information requested by the organization in its letter dated November 4, 2016 amounts to a violation of the organization’s right of access to information established and guaranteed by Section 1(1) and 4 of the FOI Act;

• A declaration that the failure and/or refusal by the Council to disclose or make available to MRA the information requested by the organization amounts to wrongful denial of access to information under Section 7(5) of the Act;

• A declaration that the failure and/or refusal by the Council to give a written notice to MRA that access to all or part of the information requested will not be granted, stating reasons for the denial and the section of the Act under which the denial is made amounts to a violation of section 4(b) of the Act;

• An order of mandamus compelling the Council to disclose or make available to MRA why water supply is not being extended to the Araromi Zion Estate; details of any plans that the Lagos State Water Corporation has for providing portable water to the Estate and adjourning areas; the cost estimate for executing the plan to supply portable pipe-borne water to the Estate, if any; the cost of maintenance of both old and new water works facilities and equipment that supply water in the area; and the total amount collected as charges or fees for water supply in the Estate from 2012 till date;

• An order compelling the Attorney-General of the Federation to initiate criminal proceedings against the Council for the offence of wrongful denial of access to information under Section 7(5) of the Act; and

• The sum of N1 million as exemplary and aggravated damages for the unlawful violation of MRA’s right of access to information established and guaranteed by the Act, and wrongful denial of access to information under Section 7(4) of the Act.

Arguing the motion, MRA’s lawyer, Miss Morisola Alaba, told the judge that the Council willfully refused to reply to the organizations letter of request as provided for by the FOI Act and that the reply ought to have been made within seven days of the receipt of the letter under Section 4 of the Act.

She noted that the information sought by MRA was not within the exemptions contained in the Act and contended that unless leave is granted, the Council would continue to violate MRA’s right under the FOI Act.

Ruling on the application, Justice Okuwobi said the order for leave in relation to an order of mandamus for the performance of a statutory duty imposed by law “is not granted as a matter of course”.

She cited Section 4(b) of the FOI Act, which states that where a public institution considers that an application for information should be denied, the institution shall give a written notice to the applicant that access to such information will not be granted, stating reasons for the denial and the section of the Act under which the denial is made.

Justice Okuwobi ruled: “I find the failure to show evidence of this by the Applicant fatal to his case. It is a condition which must be met and not deemed in the peculiar facts of this case.”

She said “The Court will refuse to give an order of mandamus if there is another remedy open to the party seeking it.”

The judge ruled that the application for leave is premature, saying “I will not speculate on the fact that there was a denial by the Respondent’s failure to comply.”

She accordingly refused to grant MRA leave.

Reacting to the ruling, Mr. Ojo said: “This has got to be one of the most ridiculous decisions ever given by a court anywhere in the world; it simply defies logic.”

According to him, “First of all, it is a matter of serious concern to us that on an issue that the Law unequivocally requires courts to deal with expeditiously, it has taken the court more than seven months to list and hear a simple motion exparte. This itself ought to be an embarrassment to the Judiciary.”

Continuing, he said, “But this aside, it is difficult to understand how any judge could come up with such reasoning in the face of the provisions of the Law. The FOI Act gives public institutions seven days within which to respond to a request for information and states clearly that where the institution fails to give access to the information or record applied for within this time limit, the institution is deemed to have refused to give access.

Mr. Ojo explained further: “We are in court to complain that we have not been given the information we requested and that the Council has willfully refused to reply our letter of request. We are asking the court to declare the Council’s refusal to reply to our letter as well as its failure to give us the information requested violations of the FOI Act. Yet the judge is telling us that because the Council has refused to reply our letter after more than seven months, when it is supposed to do so within seven days, our application, which we are obliged to file under the Law within 30 days after the institution is deemed to have denied the application, is premature.”

He stressed that “A judge ought to be outraged by such flagrant disregard for the clear provisions of the Law, rather than taking such an untenable position that merely encourages impunity on the part of public institutions disobeying the Law.’