Four years on, FOIA remains a paper tiger

FOUR years after former President Goodluck Jonathan signed the Freedom of Information Bill into law, the act remained just barely more meaningful that the paper it was written on.

To all intents and purposes the law is impotent, as The Guardian investigation reveals.

Specifically, the investigation finds that government agencies responsible for keeping public records do not only fail to comply with the law, they are often dismissive of the FOI requests without being sanctioned.

On Saturday, May 28, 2011, Jonathan signed FOI Bill into law.

The objective of the Freedom of Information Act 2011 (FOIA) is “to make public records and information more freely available and to also protect public records and information to the extent consistent with the public interest and the protection of personal privacy.”

The law also aims “to protect serving public officers from adverse consequences of disclosing certain kinds of official information without authorisation and establish procedures for the achievement of those purposes and; for related matters.”

The Act in effect amends sections of the Official Secrets Act 1911 which frustrates “the rights of any person to access information which is in the custody or possession of any public official, agency or institution.”

Four years after the President had signed the bill into law; the act remains a paper tiger, not because the law is unenforceable, but because the government agencies frustrate the processes of implementation, civil society groups have said.

An FOIA compliance and transparency rankings of public institutions in Nigeria produced in 2014 by three civil society groups (the Public and Private Development Centre (PPDC), in collaboration with BudgIT Information Technology Network and the Open Society Initiative of West Africa) show that most agencies of government in Nigeria operate in deviance of FOI Act and attempts to compel compliance through court order have been commonly resisted, the report shows.

The report focusing on the processes of 67 public institutions in Nigeria was developed based on public finance information readily available, responsiveness to requests for procurement information, level of disclosure and the cost of disclosure.

The rankings reveal that the Presidency which signed the bill into law, the Federal Ministry of Education, the Petroleum Ministry, and the Office of the Auditor General are among the culprits, being the least transparent public institutions.

For instance, FOI request for information about payments for capital projects released to the Presidency in 2013 received no response from the presidency, the report says.

Similarly, FOI requests sent to the Ministry of Petroleum at different times between January 2014 and February 2015 were ignored.

The Ministry of Education and its agencies , consistently ignored FOI requests by different civil groups since 2012 to 2015.

A recent request dated 30th January 2015 demanding records of payment for capital projects released to the Ministry of Education in 2014 was disregarded by the ministry .

Few days before the election in March, the University of Port Harcourt declined to grant the request of a human rights group, the Institute of Human Rights and Humanitarian Law (IHRHL), for details of the academic records of Jonathan.

Socio-Economic Rights and Accountability Project (SERAP) in 2013 dragged the Federal Government to the Federal High Court over failure to provide information on the spending of the N700bn borrowed between December 31, 2012 and April 30, 2013, and details of projects on which this money was spent.

BudgIT and the Public and PPDC have this month jointly sought the leave of the court to sue the National Assembly (NASS) for refusal to provide them with the breakdown of NASS’s budget and expenditure.

Several other interested parties have made FOI requests at different times to several agencies of the government without a positive response. A few of such cases are in court till date.

Despite the provision of Article 4 which states that “A public institution shall ensure that information… is widely disseminated and made readily available to members of the public through various means, including print, electronic and online sources, and at the offices of such public institutions,” the PPDC rankings shows that most agencies of the government do not engage in proactive disclosure.

Key public finance records are inaccessible at both the institutions office premises and on the website of the institutions, the PPDC report discovers.

According to Right To Know’s report on the level of awareness, compliance and implementation of the Freedom of Information 18 months after FOIA enactment, many public institutions have websites that do not have much information beyond two or three classes of information.

The Guardian’s experience has confirmed this claim.

In June 2014, the newspaper sent an FOI request to the Department Petroleum Resources (DPR) asking for the amount owed Nigeria in royalties and signature bonuses by multinational oil companies; one year after, the information is yet to be provided.

In an e-mail conversation with Seember Nyager of PPDC, about 300 FOIA requests have been made in the last four years without positive feedback.

She said: “We have outright rejections in responses such as the case of Office of the National Security Adviser, other times we have agencies who say they would provide and don’t such as Ministry of Labour and productivity and then we have those who don’t respond at all.”

For Lead Partner at BudgIT, Seun Onigbinde, the responses to FOI requests have been mixed but a common trend is that the responses don’t come quickly as stated in the law.

“Our approach of using FOI has always been the last resort when we find out that proactive disclosure is not there. This comes at a large overhead that is why we advocate for proactive disclosure.”

According to him, most agencies see the requests as a confrontation, “while we see it as an attempt to protect the social contract between the governed and the citizens.”

He said government agencies need more orientation on the need for openness. “We tell government agencies to put the documents online in the spirit of transparency to avoid incessant requests from citizens or organizations on the same matter.”

Regardless of the shortcomings encountered by applicants for FOIA requests, Seember said there has been improved access to information that is based on requests.

Notwithstanding, she said there is need for the FOI provisions on proactive disclosure to be fully activated across the public service.

“This is based on the premise that proactive disclosure around public finance management would contribute to a culture of public accountability and judicious allocation/utilization of resources.

“Proactive disclosure would arm everyone with enough information to verify performance of public services and enable clear specifications to be developed for improving public services.

“Increased proactive disclosure around pricing benchmarks, contract specification and expected service performance is likely to improve the focus of contractors on competence.