The Nigerian FOIA Picks a Useful Compass in the U.S. FOIA
By Oluwasegun Obebe
Nigeria surely has a tempestuous post-colonial history and has garnered unenviable international notoriety as a corrupt country of swindlers and “419” scam artists. But the nation has also clearly shown an irrepressible drive toward a transparent and an open government in a multi-ethnic democracy by enacting the Freedom of Information Act of 2011 (FOIA), a law that exhibits features identical to the United States federal FOIA.
The bold democratic step was taken on May 28, 2011, when the president signed the Freedom of Information bill into law. The bill traveled a tortuous journey of 17 years from its starting point to the finish line. Even on this score, the Nigerian FOIA compares favorably with the U.S. FOIA, which, according to the 2010 DOJ Guide to the Freedom of Information Act, “evolved after a decade of debate among agency officials, legislators and public interest group representatives.” Nigerian lawmakers must be commended for passing the law, and for the good judgment of patterning it after the well-tested U.S. FOIA. Hopefully, Nigerians, especially those expected to be most actively engaged in the implementation of the Nigerian FOIA—the journalists, attorneys, judges and government officials—will recognize that, as the law’s implementation process gears up, areas of uncharted territory are very limited indeed. If embraced, the U.S. FOIA experience ought to benefit the people of Nigeria and its government agencies, including the courts, as they cope with the challenge of implementation and interpretation of the Nigerian FOIA provisions.
U.S. FOIA and Nigerian FOIA Compared
As structured, each law consists broadly of three features—“access”, “withhold” and “safeguard”—designed to balance the need for transparency of government with the need to maintain security and privacy.
In the access feature, both laws, for instance, define public records, establish the right of any person to access public records, require that information about each agency of government be published, mandate prompt disclosure of records properly requested and not already made public, dispense with reason or justification for placing a request, require agencies to maintain records of their activities, require agency to publish its organization, location, functions and rules, identify branches of government covered by the act, identify public records that must be voluntarily made available, permit third-party request, permit oral request, specify timeframe for response, require agencies to segregate and release disclosable portion of records, permit imposition of fee for processing request and require agency to designate chief FOIA officer.
In the withhold feature, they both exempt from automatic disclosure certain records relating to diplomatic and national security; law enforcement; personnel, medical and personal privacy; license or business registration; confidential source; trade secret and financial matters; litigation privileges, and examination data and building designs.
Under their safeguard feature, the laws grant the right to challenge and appeal denial of request; require agencies to give notice of denial, reason for denial and the exemption that supports denial; impose penalty if court finds wrongful denial; impose criminal penalty for willful destruction of records; protect whistleblowers; grant oversight responsibility to attorney general, and require annual reporting.
The similarity of the Nigerian FOIA to the U.S. FOIA is striking, although the Nigerian FOIA suffers for lack of clarity where the intent of the U.S. FOIA is very clear in certain important comparable aspects. For instance, it is clear that the U.S. FOIA is enforceable against only the executive branch of the U.S. government and its agencies, as made plain by President Lyndon B. Johnson when he signed the bill into law on July 4, 1966. The Nigerian FOIA is not so clearly expressed. Another significant difference is that the Nigerian FOIA was written to take effect immediately upon enactment, whereas the effective date of the U.S. FOIA was set to begin one full year after its enactment, obviously to allow federal agencies that would be bound by it to train staff and engage in other acts of preparation for compliance.
The preceding observation, however, is not derogatory of the fact that the enactment of the Nigerian FOIA, as in the case of the U.S. FOIA before it, is a watershed accomplishment and a powerful democratic tool. To describe it as such is not an exaggeration, considering that it, too, is saturated with the potential of opening up the affairs of government so that Nigerians, like the US citizens, can know “what their government is up to,” as stated in DOJ v. Reporters Comm. for Freedom of the Press.
When he signed the U.S. FOIA into law, Johnson declared, “This legislation springs from one of our most essential principles: A democracy works best when the people have all the information that the security of the nation permits.” This principle should apply with equal force to Nigeria. Nigerian “founding fathers” too opted for democratic governance, and the interventions of dictatorial forces over the years have not diminished the cravings that the Nigerians have for that venerable system of government: democracy. Prudence would dictate that the path taken by the U.S. FOIA, specifically the interpretation and the enforcement of the law by the U.S. courts over the years, ought to be instructive in the Nigerian FOIA growth process. Naturally, bureaucrats, well-entrenched in their familiar and comfortable ways, will try any subterfuge that will keep them from disclosing. This natural tendency is not unique to Nigerian bureaucrats; so were the American bureaucrats before them in the early years of the U.S. FOIA.
The preamble to the Nigerian FOIA states in full as follows:
This act makes public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes.
The intent of the law is clearly openness of government. The law charts a bold path of transparency in the affairs of government so that Nigerians can truly claim to have a government of the people, by the people and for the people. However, in recognition of the potential for abusive and frustrating tendencies that human beings are capable of, the law is spiced with parameters, limitations, protections and procedures to ensure that the process of implementing the Nigerian FOIA can be as smooth as possible. And that, naturally, leads to the discussion of certain imperatives: enforcement of orders issued by competent judicial bodies on controversy arising under the law; adequate knowledge of the law and its associated rules and regulations, generally achieved by training, and a robust exercise of the rights granted by the law. They are indispensable to the growth and development of any law, including the Nigerian FOIA.
Enforcement of Orders
In order to successfully implement the FOIA in Nigeria, all actors involved in the implementation process—FOIA requesters, FOIA Officers, administrative decision-makers and the courts—must be assured that an unwavering set of standards applies, final adjudicatory decisions are obeyed and that orders issued are enforced.
The enforceability of court orders interpreting a law is critical to the success of the law. The Nigerian FOIA is no exception. In enforcement, therefore, may hinge the overarching challenge to the Nigerian FOIA success prospect.
A study by the International Commission of Jurists found that “the Nigerian government is growing a culture of disobeying court decisions, even decisions of the Supreme Court and that culture is spreading, carrying with it, grave consequences for the rule of law in a nascent democracy.” For all the jubilation over the enactment of the law, and the promise it potentially holds for open and transparent government, if an environment of fidelity to law does not exist in Nigeria, the Nigerian FOIA will be nothing but a mirage. It will not make sense for Nigeria to import the U.S. FOIA and not at the same time import its indispensable accessories, which are a guarantee that final administrative or court decisions on disputes that the law generates will be unquestionably and fully enforced and an effective, periodic training program.
Because of its criticality, an effective training program should be next in line to an enforcement mechanism in prioritizing implementation issues. Those who crafted the law apparently place high premium on training when, in Section 13, they provide the measure for achieving the “purposes” of the law, directing that “every government or public institution must ensure the provision of appropriate training for its officials on the public’s right to access to information or records held by government or public institutions, as provided for in this act and for the effective implementation of this act.” Several levels of a training program must, necessarily, be developed and offered to government officials on level-need-basis so that the “purposes” of the law can be achieved. There must be a training program to provide to government officials a straightforward, easy-to-understand synthesis of the substantive and procedural elements of the Nigerian FOIA so they can properly discharge their duties and fulfill their obligations under the law.
There are more to the concept, freedom of information, enshrined in the new law, than meet the eye. The substantive and procedural elements of the law require sound interpretation to be properly understood and for the law to be correctly implemented. What, for instance, do these concepts mean under the law: public records, public access, public disclosure, public interest, personal privacy, whistleblower protection, adequate search, adequate response, access denial, exemptions, segregability and judicial review? What are the consequences of wrongful denial of access to or inappropriate disclosure of records? Who is subject to the FOIA and who is not? Who has standing to submit FOIA requests? Is there a formality to making and responding to a FOIA request?
This is by no means an exhaustive list of questions that must be correctly answered in order to effectively implement the new law. Further, effective implementation of the law can be achieved with minimum hardship if its early practitioners are given proper training, so that they are able to lay good foundation and set standards of practice that will make future application of the law a smooth-sailing voyage.
To be sure, operating any new tool can be a challenge. But the challenge, intimidation and frustration typically associated with operating a new tool can be controlled, even overcome, with proper training, especially if the source of the training is grounded in relevant experience. The Nigerian FOIA is a new tool; however, the art of using it can be mastered by those who are going to operate it if they are given proper training. Additionally, since the law is new to Nigeria, there are no local administrative practices and court decisions to serve as precedence. Helplessness or failure, however, is not, on that account, a given, not when the law is so closely patterned after a law that has been tested elsewhere—the U.S. FOIA, which has been in full-blown application for almost half a century. A 2009 publication reported an estimated 5000 number of cases that have been decided pursuant to the U.S. FOIA since the law came into effect in 1967. Nigerian FOIA practitioners do not have to reinvent the wheels. Certainly, the Nigerian community can benefit from the administrative practices and judicial opinions generated by the U.S. FOIA. It should be a central objective of a training program to ensure that the new law takes off on the right footing and thereby avoid, as much as possible, the pitfalls that so often encumber most new ventures. To achieve this dominant central objective, a number of distinct and equally critical objectives must be met.
The first objective is to develop a course outline and handout materials to facilitate teaching and learning interactions. Officials of the various agencies of government who have been designated “FOIA Officers,”—or any other preferred title—are, of course, the target and immediate beneficiaries of the training program. Second, both the course outline and the teaching methodology must distinguish between the substantive and the procedural requirements of the law, so that FOIA practitioners can fully grasp and appreciate the intent of the law. The third objective is to ground discussions of the elements of the law in judicial opinions, particularly United States’ decisional law, to serve as guidance to “FOIA Officers” as they make decisions of whether to deny or grant FOIA requests. Emphasis is placed on the U.S. decisional law because of the close similarity between the two laws, coupled with the fact that the U.S. law has been tested extensively in the courts.
Several steps of a plan of action might be, first, to assemble a pool of trainers to provide training to all government officials designated as “FOIA Officers” in all the agencies that are subject to the law. Training method should include video and audio presentations as well as focus group discussions. To the extent that the training can be effectively conducted electronically, that option too should be incorporated into the training program. Second, the training should be periodic and offered in locations that are easily accessible and convenient for maximum degree of participation. Each periodic training session should reflect updates and development in FOIA law and practice. Third, the training program should be designed to ensure that each element of the law is clearly taught and fully understood. In other words, there should be an introductory training level that will consist of an overview of the law. This level should be appropriate for all government officials, particularly those that serve as custodians of their agencies’ records, and, therefore, must assist their agencies’ FOIA officers in searching for, and producing records that are responsive to FOIA requests. Each additional training level should focus on each element of the law, such as exemptions, segregability and redaction, fee assessment, appeals and annual reports.
Equally germane to the training program is a management plan. The importance of ascertaining the efficiency and success of a training program cannot be overemphasized. It is necessary that a training evaluation system be set up to extract feedback from training participants so that improvement can be made to the training program, as needed.
A high degree of agencies’ compliance with the dictates of the FOIA can also be a gauge of training success. To that end, also, a FOIA compliance-monitoring system should be established. To accurately determine FOIA compliance, it will be useful to know, for instance, the timeliness of agencies’ responses to FOIA requests, the qualitative content of the responses and the level of public satisfaction with the responses. A system of monitoring FOIA processing and outcomes will be a useful tool.
Exercising the Right Granted by the Nigerian FOIA
Whether the law succeeds or fails will depend on the extent of assertion and exercise of the right of access which the law has granted. As Prof. Elias Clark of Yale Law School commented in discussing the U.S. FOIA and the first amendment to it during its first seven years, “the act only goes to work if someone makes a request for information…” To this end, the role of prospective FOIA requesters, that is, all persons, especially journalists, is a major one. The Nigerian FOIA must be studied and aggressively engaged. That “not many” journalists have done so, as found in an informal survey indicates a lack of appreciation for a most powerful professional tool at their disposal. A lesson in proactivity can be learned from Brazil’s Federal Comptroller General‘s report “that citizens had filed approximately 10,400 requests in the first month” of the Brazilian FOIA coming into effect in May 2012.
The Nigerian FOIA holds great promise for the consolidation of democratic governance and generating democratic outcome in Nigeria. The enactment of the law is comparable to planting a seed, which requires watering for growth to take place. The lawmakers wisely codified that “appropriate training for (government) officials on the public’s right to access information or records” must be a component part of the “watering” process in order to achieve “effective implementation of [the] act.” Further, expertise and relevant experience matter in selecting trainers for a project, especially one that is as consequential as the effective implementation of the Nigerian FOIA. Finally, the following observations and recommendations are proffered.
The law is poorly formatted as the paragraphs are numbered in a pattern that makes citing the law difficult. The phrasing of paragraph 1(3) and paragraph 2(6) should be changed from “any person entitled to the right to information” to “any person whose request for information has been denied.” Also in paragraph 1(3), the law grants to a person whose request has been denied a “right to institute proceedings in the court.” There is no administrative review option. A dash to court without a stopgap that an administrative review layer would provide can only burden court resources and delay resolution of disputes. Paragraph 2(1) requires that “a public institution shall ensure that it records and keeps information about all its activities, operations and businesses.” Fine. There should also be a requirement in the law for periodic auditing to ensure compliance with this very important element of the law.
Paragraph 2(3) (d) (vii) lacks clarity. Paragraph 2(7) apparently defines “public institutions.” This paragraph should be part of Section 31, which should be captioned “definition” and not “interpretation.” Courts interpret laws. Paragraph 3(3) grants third-party request on behalf of “illiterate” or “disabled” applicants only. Beside the fact that these are derogatory words, any requester should be able to authorize someone to place a request on his behalf. For instance, an attorney or a public-interest organization should be able to place a request on client’s behalf. FOIA response time of seven days is too short and unrealistic. Paragraph 5(1) requires an agency that receives a request for records it does not maintain to forward the request to the agency that maintains the records. The paragraph further grants the requester a right to sue the receiving agency [instead of expressing gratitude] for forwarding the request to the appropriate agency. It should be the primary responsibility of the requester to determine which agency maintains records sought. Forwarding the request to the appropriate agency is a favor to the requester. To gratuitously assign a right to sue an agency for such a generous act invites complication and confusion and would cause unnecessary expense of administrative and judicial resources. Processing the request would be better streamlined if the requester is simply notified that the other agency maintains the requested records. On the other hand, request for records that have been incorporated into the receiving agency’s system of records, although created by another agency, should be processed by the receiving agency as if the records belong to the receiving agency. It should be sufficient that the agency that created the records, or with “a greater interest,” is consulted prior to disclosure of the records. A one-time extension of response time, if an unusual circumstance is articulated, should not be an excessive prerogative for an agency to exercise. There should be flexibility and not an open invitation to litigation regarding every minutia. As provided in paragraph 7(5), the liability line between an agency official and the agency in the event of wrongful denial of access to information is blurred. There should be clarity on when an individual official must be held personally liable, when the institution should, and when joint liability shall lie. Both paragraphs 9(1) & (2) simply repeat what has been stated in paragraphs 2(1) & (2).
Oluwasegun Obebe, a member of the DC Bar, is employed at the District of Columbia government as FOIA, Privacy and Records Management Officer, D. Department of Corrections. He was a lecturer in Law, University of Ilorin (1985-87) and the University of Calabar (1991), Nigeria. No opinion expressed in this article represents the DC government.