The Attorney-General of the Federation (AGF) and Minister of Justice, Mr. Abubakar Malami (SAN) has highlighted “formidable challenges” in the implementation of the Freedom of Information Act, 2011, observing that up to 90 per cent of public institutions do not comply with their annual reporting obligations under the Law.
In his 2017 Annual Report on the Implementation of the Act, submitted to the National Assembly on March 27, 2018 under Section 29 of the Act, Mr. Malami stressed “the need for concerted effort by all tiers of Government to ensure that public officers shrug off a culture of secrecy and embrace the values of transparency and openness embedded in the Act.”
He said it was a “matter of concern that in spite of reminders on submission of Annual Implementation Report to Attorney General of the Federation as stipulated in the FOI Act, the compliance index shows that up to 90 per cent of the Public Institutions do not adhere to their reporting obligations since the Act was enacted.”
Ironically, 73 public institutions submitted their annual implementation reports for 2017, according to the 2017 report, which is the highest number of public institutions that have ever submitted their implementation reports for any single year since the FOI Act came into force in 2011.
Only 16 public institutions submitted their annual implementation reports for 2011 at the close of the reporting period in 2012. The number rose to 32 for 2012; 51 for 2013 and 60 for 2014. The number dropped to 44 for 2015 and was 54 for 2016.
In his latest report to the National Assembly, the Attorney-General insisted that each tier of government must complement the other and aim towards effective and sustainable implementation of the Act.
He blamed the absence of sanctions in the FOI Act for failure to submit Annual Implementation Report by Public Institutions to the Attorney General of the Federation for the low level of compliance as the Ministry of Justice is presently only using “naming and shaming” of defaulting public institutions, pending when appropriate punitive administrative measures would be put in place to punish defaulting Institutions.
The Attorney-General also identified several other challenges encountered in the course of implementing the Act, saying that in 2017, some of the challenges encountered include:
The lack of record keeping and systematic means of record management in public institutions in a manner that facilitates public access.
Inadequate or non-financial provisions to fund FOI Act activities as there is general lack of funding for FOI activities across Government departments.
A general apathy amongst those that should operate the Act, which is worsened by a high level of ignorance about the provisions of the Act and the nature of obligations expected of public institutions with the result that there is a need for intense and continuous sensitization of Government officials.
Late responses by public institutions to requests for information, invariably well beyond the seven days required by the Act primarily because they lack necessary structures to respond or due to ignorance of timelines stipulated in the Act.
The challenge of bureaucracy and bottlenecks in most public institutions which hinders effective compliance with the Act.
The refusal by a high percentage of public institutions to set up FOI Units and to designate Desk Officers in line with Chapter 6.16.1 of the Guidelines on the implementation of the FOI Act 2011.
The reluctance of public institutions to develop FOI online portal to proactively publish their activities, operations and businesses as required by the Act to enable easy public access.
But the Attorney-General of the Federation stressed that the Federal Ministry of Justice, as the focal Ministry with oversight on the implementation of the Act, during the year under review (2017) took several measures to encourage public institutions to comply with the provisions of the Act.
He said: “The Attorney General of the Federation as in the previous years since the enactment of the Act has continued the implementation responsibilities bestowed on him using the revised edition of the Guidelines with the incorporated Report templates for the preparation of Annual Reports under Section 29(5) in order to ensure that Reports are uniform and objective.”
Mr. Malami listed some of the measures taken by his Ministry to encourage public institutions to comply with the provisions of the Act to include:
• A collaboration between the Ministry and Right to Know (R2K) Nigeria with its partner, the MacAuthur Foundation, to organize an event titled towards a more Accountable Public Service in Nigeria, an FOI good practice forum as well as support by R2K to the Ministry to upgrade its FOI website with the addition of a user friendly Freedom of Information Portal.
• The establishment of a database of Freedom of Information Desk Officers in Public Institutions by the Ministry with the result that an increasing number of public institutions are becoming sensitive to the Proactive Disclosure requirements under the Act.
• Al service-wide circular to be issued by the Head of the Civil Service of the Federation to make compliance with the Act mandatory for all public institutions.
• Participation by the Freedom of Information Unit of the Ministry in compliance with Section 13 of the Act, in the Anti-Corruption and Open Government Certification Programme organized by the Open Government Partners (OGP) Nigeria Secretariat.
• Participation by the Freedom of Information Unit of the Ministry in a Nigerian Bar Association (NBA)-organized Discuss Series on Access to Information and the Freedom of Information Act, 2011 as a vital tool against Corruption.
• The Ministry’s collaboration with the Office of the Accountant General of the Federation to organize a customized FOI Act training for members of the FOI Act Committee in the Accountant General’s office with the theme “towards achieving sustainable implementation of the Freedom of Information Act, 2011”.
• The Ministry’s FOI Unit’s quarterly interface and conversation with FOI Desk Officers across public institutions through which it offers advice, opinions and counseling to public institutions omn complex FOI issues.
• Officials of the Ministry’s FOI Unit serving as resource persons and facilitators in some workshops and seminars organized by Civil Society Organizations and public institutions, including by the National Youth Service Corps (NYSC), the Independent National Electoral Commission (INEC) and the Federal Government Staff Housing Loans Board.
• The intervention of the Attorney General of the Federation in pending Freedom of Information cases against some public institutions for failure to comply with proactive disclosure obligations, leading to such cases settled out of court with the resolution that concerned public institutions should comply with the mandatory publication provisions of the Act.
• Co-chairing by the Ministry’s Freedom of Information Unit of the Access to Information Work Group of OGP Nigeria; its contributions to the National Action Plan on the Access nto Information Thematic Area and it involvement in OGP sub-National engagements.
• Several letters written by the Ministry to encourage mandatory compliance by public institutions with their statutory obligations with respect to reporting and proactive disclosure under the FOI Act; and the Ministry’s constant reminders on the imperatives of effective record keeping and documentation of their activities, operations and businesses to ensure that information are easily accessible to the public.
• The Ministry’s reminders, in line with Section 13 of the FOI Act, to public institutions to ensure the provision of appropriate training for their officials on the public’s right of access to information or records held by them.
The Attorney-General of the Federation said these activities underscore the fact the Ministry has “engendered a synergy and collaboration leading to a tremendous improvement in the applicability and usage of the Act by the Public.”
He noted that “What is now required is a sustainable effort on the part of the public institutions to meet the increasing demand of the general public and meeting their statutory obligations to the Office of the Attorney General of the Federation.”
Mr. Malami said the Ministry also sent out letters to public institutions asking for contact details of FOI Desk Officers in their respective institutions as such details are an effective tool to create synergy and collaboration between the Ministry and Desk Officers across public institutions and to engage them on the FOI Administration and for the public to have access to Desk Officers of public institutions.
He explained that the request was for the details to cover the name of the public institution, its address, the Name of the FOI Desk Officer, the designation, the mobile number, both official and private; and the public institution’s FOI Email address and its Web Address/FOI Portal.
According to the Attorney-General, where an FOI Desk Officer had not been designated, the institutions were expected to designate an Officer and establish an FOI Unit that will have direct responsibility for ensuring compliance of the institution with the provisions of the Act, in line with Chapter 1.16.1 of the 2013 revised Guidelines on implementation of the Act.
He said following the request, the Ministry has so far received 106 contact details of FOI Desk Officers of some public institutions, adding that his office has published the contact details of FOI Desk Officers of public institutions so far received.