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An L Guide to Understanding & Applying the Freedom of Information (FOI) Act, for Citizens & Press Individuals Presented By Edem Dorothy Andah At the American Corner, Nigerian Society for Information, Arts & Culture On 3rd May, 2014, (to Mark the World Press Freedom Day)

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BRIEF BIOGRAPHY Edem is a Rights Lawyer and Development Practitioner who uniquely employs community radio as a platform for advancing citizens legal empowerment and access to justice. She has worked for five years in the field of human rights and development through advocacy, litigation, youth initiatives and community radio broadcasting. Since 2012, she has facilitated a community legal help desk in the University of Ibadan Campus radio Station, (Diamond 101.1 fm), which creates citizens enlightenment on basic rights and offers legal empowerment for underserved women. In 2011, Edem founded MAYEIN - Mentors Assistance for Youths & Entrepreneurs Initiative, a registered organization, which promotes leadership, civic education and enterprise development for teenagers and youths in disadvantaged communities in, Oyo State, Nigeria. Over 500 at-risk youths and potential school drop-outs across Oyo State, have received motivation and training through MAYEINs leadership, civic education workshops and mentoring initiatives. Edem is also skilled in intellectual property law, policy matters, media-led advocacy, creative writing and public speaking as well as youth skills development and civic education strategies. She gained a law degree in 2007 from the Obafemi Awolowo University, Nigeria and was called to the Nigerian Bar in 2008. Edem received a Commonwealth prize in 2013 for an Essay on the role of women in leadership. She has several published articles.

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Lets start by asking the Big question - WHAT is Freedom of Information? Lets start by asking the Big question - WHAT is Freedom of Information?

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Freedom of Information simply put is the right of a citizen to request and obtain information from public authorities and bodies. FOI is a legally guaranteed right of access to government information and makes government duty bound to publish and promote openness to all her official records & duties Akpodiete, 2012 In Nigeria, Freedom of Information is established under the Freedom of Information Act (FOIA), 2011.

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Freedom of Information is based on the fundamental principle of accountability and disclosure by all public authorities of the manner in which public duties as well as public funds are managed and correspondingly the citizens right to know. This Right is essential for the proper functioning of a democracy. Freedom of Information is the cornerstone in promoting democratic participation and good governance. (Ladan, 2012)

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Freedom of Information is a critical element of the Constitutional right to freedom of expression and in most democratic climes both rights are viewed as twin components existing mutually and culminating into what is regarded as Freedom of the Press. Article 19 of the Universal Declaration of Human Rights provides for freedom of information and Press freedom everyone shall have the right to freedom of opinion and expression; which includes freedom to... Seek, receive and impart information and ideas through any media, regardless of frontiers, orally or in writing...

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Lets ask another BIG Question - WHY is Freedom of Information important?

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The ANSWER is embedded in Chapter II of the Democratic Constitution of the Federal Republic of Nigeria, 1999 (as amended) which states the Fundamental obligations of the Government (which includes security, health, education, welfare and social conditions. economic planning and growth, proper income and wealth distribution amongst others) and in turn the obligation of the mass media to freely uphold the said objectives of government at all times and uphold the accountability of the Government to the people by providing information (see Section 22). Unfortunately, while it lays down the principle, the said Chapter II of the Nigerian Constitution is non-justiceable and thus unenforceable. Establishing a Freedom of Information Act therefore became critical to Nigerias Democracy!

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The Success of a Democracy depends on Freedom of Information Citizens can properly scrutinize public officials and services to prevent corruption, indolence or ineptitude Enhanced Public debate and informed input from citizens improves government decision making and public service delivery Wide scope & Accuracy in journalism/ reportage on matters of public interest resulting in higher social responsibility and impact Citizens are able to make informed voting choices during elections and public referendum for passage of laws

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In a democratic world, the public is expected to have access to information particularly through the media not only on how they are governed but also on anything that is of interest to the individual or group... Afolayan, 2013 Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked UN Special Rapporteur on freedom of opinion and expression

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Some Major Benefits of Having a Freedom of Information (FOI) Act 1.Openness, transparency and good governance through accountability 2.Active Citizens participation in monitoring governance and engaging in public policy debates, public referenda by Legislature and improved voting patterns. 3.Robust and accurate reportage of public interest information by the Press leading to higher public enlightenment and elevated public debates. 4.Speedy dispensation of justice due to better cooperation for release of public records and securing witnesses, in the course of investigations 5.Rapid social and economic development

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Back Ground on the Situation before the Freedom of Information Act, 2011 1.After many years of bitter military rule, a democratic government headed by Former President Olusegun Obasanjo was sworn in, in May 1999. 2.Despite the fundamental obligations of government, enshrined in the Constitution and the principles of democracy, core amongst which are transparency and public accountability, there was no legal instrument to compel public authorities and bodies to give account of their activities, or expenditure conducted for the public interest. 3.Members of the Press were denied access to public records thereby preventing them from conducting journalistic investigations, verifying information, and rendering detailed reports of government activities to the public. 4.Public officials who disclosed public information or records to journalists were subjected to sanctions or other prejudice by the superior government officials.

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5.There was a heavy culture of official secrecy and non-disclosure amongst public authorities and institutions with respect to public records. 6.A plethora of laws which were a legacy from military rule and subsequently morphed into the Federations laws, such as the Official Secrets Act*, Public Complaints Commissions Act, the Statistics Act, the Evidence Act, even the Criminal Code prevented civil servants from divulging official facts and figures to members of the press or public. 7.Media Organizations and Press houses routinely faced government intrusive sanctions and unfair measures over any negative publication against the government or its policies, regardless of the accuracy of such reports.

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Nigeria had (before the Act) regarded Freedom of information as a luxury only practicable in the western world and other established democracies. A culture of secrecy had become entrenched in in Nigerian government and members of the public including the media [are] always denied access to official information, which in a democracy they should be entitled to. (Ekunno, 2001) I used to be a newspaper journalist in Nigeria at the time of military rule, and i found myself repeatedly being constrained from being able to practice freely (Edetaen Ojo Media Rights Agenda)

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This situation prompted certain civil society groups and members of the Nigerian Union of Journalists to initiate the Freedom of Information Bill. Notable spearheads behind the drafting of the Bill and advocacy for its passage into law were Media Rights Agenda (MRA), a Lagos based Organization led by Mr. Edetaen Ojo, the Civil Liberties Organization and the Nigerian Union of Journalists (NUJ), Lagos Branch. The Bill went through a tumultuous period and faced major setbacks. After a series of prolonged reviews and an infamous decline of assent by former President Obasanjo, in June 1999, the Bill was finally signed into Law in May, 2011, by President Goodluck Ebele Jonathan. Nigerians waited 11 long years until on May 28 th the President signed the Bill and the Freedom of Information Act was born. Currently 3 States (Delta, Ekiti and Lagos) have adopted the Act at State level. It is worth noting that these States have extended the response time from 7 days to 14 days.

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With the new law, Nigerians finally have vital tools to uncover facts, fight corruption and hold officials and institutions accountable (Enonche, 2012)

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So whats so special about the FOI Act? Unique Features of the FOI Act, 2011 1.Guarantees the right of access to information held by public authorities and institutions, irrespective of what form it is kept in. S.1 2.It is applicable to private institutions where they utilize public funds to perform public functions or provide public services. S. 2(7) 3.Requires all Institutions to proactively disclose basic information about their structure and processes, to maintain and keep proper records and to build the capacity of their staff to comply with the provisions of the Act. S.2, 9 & 13

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More Unique Features of the FOI Act, 2011 4.Provides protection for whistle blowers against any prejudice contained in the Official Secrets Act, the Criminal Code or other enactments. S. 27, 28 5.It includes requirements for the information needs of illiterate and disabled applicants. S.3(3) 6.Places no age bar or form of restrictions on applicants who may include members of the press, ordinary citizens or mere residents of the Country, who need not demonstrate any specific interest. S.1 7.Recognizes a range of legitimate exemptions to the publics right to know, but these exemptions are made subject to what analysts describe as a public interest test, which in deserving cases may override such exemptions. S.12, 15, 16, 17, 19

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More Unique Features of the FOI Act, 2011 8.It makes public officials who are in default or criminal breach* of the Act, liable to a fine of N500, 000, or a term of 1 year sentence respectively, upon conviction by a competent court. S. 7 & 10 9.Requires all public institutions to submit reports on their compliance with the Act to the Attorney General who in turn is designated to oversee the effective implementation of the Act and make annual reports of the execution of this duty to the National Assembly. S. 29 10.Regarding its structure, the Act is simple and concise containing 32 easy-to-read provisions as well as a brief explanatory note.

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So...What is the Procedure to obtain Information under the Act?

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THE PROCESS According to Section 3 of the Act, a person seeking information from a public institution is simply required to make an oral application before a designated official/or official in charge of the public institution, who in turn is required to then reduce the oral request into written form and within 7 days the information must be provided to the Applicant. Where the Applicants request is denied by a public institution or authority, the grounds for refusal must be stated as well as the provision of the Act relied upon and the right of the Applicant to seek a declaration on the refusal by a competent court must be indicated in the notice of refusal. Where another public institution has more direct/closer connection to the information being sought, the public authority to whom the Applicants request is made may, transfer the request to the more interested public institution within 7 days from the date of receipt of the request and issue a written notice of the transfer to the Applicant

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Challenges to Successful Implementation of the FOI Act, 2011 1.High levels of illiteracy across the Country have limited the implementation of the Act. Efforts are ongoing to create public enlightenment and also familiarize citizens with the provisions of the Act and reorient the masses about their right to know. Currently the FOI Act has been translated into some local Nigerian languages such as Ijaw, Tiv and 2.A long tradition of poor record keeping by public institutions has hampered the implementation of the Act, and sometimes some records are simply difficult to find or impossible to trace at all. 3.There is also a long history of secrecy in public institutions caused by the long period of military rule in the Country when there was no accountability to the public. This ill in the system is slow to change and unfortunately the system still covertly punishes whistle blowers. 4.Lack of digital records and technology data-base systems as well as staff capacity in IT, results in clumsy manual records keeping, cumbersome searches and undue delays to the process of attending public requests.

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Experience of FOI Act in USA: The Freedom of Information Act was signed into federal law in the United States in 1966 by then President Lyndon Johnson. It came into effect in 1967. All the 50 individual states of America have equally passed their own varying versions of the FOI Act into state laws. Whilst American press, citizens and residents enjoy a robust practice of freedom of information, occasionally on the downside, Executive orders are introduced by sitting presidents to limit the scope of operation of the Act e.g. 1982 Executive order by President Regan creating enormous exemptions with respect to national security, which were later reversed by the Clinton Administration. In a similar vein Executive order introduced under George Bush Administration in 2001, restricted access to records of former Presidents. This was reversed by the Obama Administration. Further enactments operate to strengthen the operation of the Freedom of Information Act, such as the Electronic Freedom of Information Act, 1996, which mandates all public agencies and institutions in America to make certain types of records available electronically and further more to create electronic reading rooms which will allow citizens and applicants free access and use of these records.

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Thank you