NIGERIA'S FREEDOM OF INFORMATION ACT. The FOI was passed into law on May 28 2011, after the longest legislative debate in Nigerian history. The law was passed to enable the public to access certain government information, in order to ensure transparency and accountability. The bill was developed by the Freedom of Information Coalition. (1) The act aims to make public records and information more freely available, and to protect public records and information in accordance with the public interest and protection of personal privacy. It enables citizens to hold the government accountable in the event of the misappropriation of public funds or failure to deliver public services. It also seeks to protect serving public officers against any adverse consequences from the unauthorised disclosure of certain kinds of official information, and to establish procedures for the achievement of these purposes. The act further regulates conflicts between its provisions and those of other legislation (eg, the Criminal Code, Penal Code or Official Secret Act) that prescribes criminal penalties for actions connected to the disclosure of information. Section 27 of the law provides that no civil or criminal proceedings may be brought against an officer of any public institution, or against anyone acting on behalf of a public institution, for the disclosure in good faith of any information pursuant to the act. Section 30(1) further provides that the act is intended to complement, not replace, the existing procedures for access to public records, and is not intended to limit public access to information. In any economy, freedom of information is a fundamental indicator of economic development and progress, civic engagement and a properly functioning democracy. Although the act is a promising start in ensuring good governance and rule of law in Nigeria, several hurdles will need to be overcome before it can be fully implemented. The act recognises a range of legitimate exemptions and limitations to the public's right to know, although these are subject to a public interest test which, in deserving cases, may override such exemptions and limitations. Exemptions As mentioned, the public's right to know is subject to certain exemptions. Access may be denied if the information sought could compromise national security, the conduct of international affairs or trade secrets, pertains to administrative enforcement proceedings or has been compiled by a law enforcement agency, provided that the public interest in disclosure does not outweigh the injury that the disclosure may cause.(2) Section 14 of the act provides that public institutions may not disclose personal information, except where the public interest in disclosure outweighs the individual's right to privacy. However, such disclosure is subject to the consent of the individual, or may otherwise be effected only where the information is publicly available.(3) In addition, access may be denied to information that is subject to legal privilege, medical privilege, journalistic privilege and any other professional privilege conferred by law.(4) Also, a public institution may deny access to information or research materials prepared by faculty members.(5) These exemptions grant broad discretion to public institutions to deny information, and as such may be subject to abuse. However, this risk is somewhat mitigated by the provision for judicial review and the requirement that an application for information not be denied where the public interest in disclosure outweighs any injury that such disclosure may cause. Public interest disclosure As a means of overriding the exemption provisions and preserving access to information, the act includes a public interest test, under which information cannot be withheld where the public interest in disclosure outweighs the interest in denying access to the information. This allows for the disclosure of information even where this is likely to cause harm to a protected interest, if the overall public benefits of disclosure outweigh any potential harm that might result. However, the determination of what constitutes 'public interest' will present a challenge, except in obvious cases, and will ultimately be determined by the courts. The courts will have to balance these exemptions against the public's right to know. The act does not define the term 'public interest'. In determining this issue, the courts are likely to rely on English case law, which is of persuasive authority in Nigeria. An applicant who has been denied information may apply to court for judicial review within 30 days of the denial or deemed denial.(6) The court also has the power to extend this timeframe. All applications for judicial review must be heard and determined summarily. The public institution bears the burden of proving that it is authorised to deny the application for information. If the court determines that the information should have been disclosed, it will order its disclosure to the applicant. Barely weeks after passage of the act, Justice Binta Murtala Nyako of the Federal High Court in Lagos granted leave to the Committee for the Defence of Human Rights (CDHR) to apply for a writ of mandamus compelling the Economic and Financial Crimes Commission (EFCC) to disclose information to the effect that the CDHR's executive director and leadership had received the sum of N52 million in order to smear the EFCC. Application to states Another question arising from the act is whether it will apply throughout Nigeria. Some argue that the various state houses of assembly must implement it before it can apply in those states; otherwise, it will apply only in Abuja, the capital of Nigeria. Whether this is legally correct will eventually be decided by the Nigerian courts. As it stands, the act is a law of the National Assembly,(7) which is empowered to make laws for the Federation of Nigeria with respect to archives and public records. The state houses of assembly may make laws for each state with respect to its own archives and public records. Opinion is thus divided as to whether the act applies to state archives and public records. The problem lies in the distinction which the 1999 Constitution makes (in Part II, Paragraphs 4 and 5 of the Second Schedule) between 'public records of the Federation' and 'public records of the State.' It is also argued that under the Constitution, only a state house of assembly may make laws in respect of its public records, and thus the act does not apply to state public records. This view is reinforced by Section 29 of the act, which provides for public institutions to report to the attorney general of the federation, who in turn must report to the National Assembly. If the law were intended to apply to the states, provisions should have been included on reporting to the state attorneys general and the state houses of assembly. As it stands, only one state in Nigeria(8) has implemented the act. Until the act has been tested in the courts, it may be of limited effect until other states have passed similar legislation. Therefore, in order for the act to become effective in other parts of the country, the state houses of assembly must implement its provisions, because at present it is a federal law only and is thus applicable only to federal institutions and agencies. It is envisaged that other states are likely to follow in the same vein. Comment The freedom of information must be balanced against other equally important interests, such as the right to privacy, protection of reputation and national security. The public interest is a broad concept which is difficult to define. Its definition or interpretation may vary depending on the circumstances of each case. It is a matter for the courts, acting in good faith with the specific aims of the act in mind, to develop jurisprudential guidance as to the appropriate meaning of the public interest in specific situations. Where information is improperly denied, the act allows the court to compel the public agency or official to grant the application for access. Section 2(6) of the act provides that anyone denied access to information may apply to court to compel disclosure of the information. However, this process may prove both costly and slow, and could have been better dealt with in the act through the inclusion of a provision for the establishment of an independent administrative body to promote compliance with the act. Such a body would be more accessible and affordable than the courts, and could resolve disputes relatively quickly. The establishment of such an independent body would have proved invaluable in addressing the culture of secrecy which is often the greatest barrier to transparent disclosure. It would also have helped to expose and embarrass public authorities with poor disclosure records, or which actively seek to undermine the objectives of the legislation.(9) In spite of the merits of the act, certain challenges remain to be addressed, such as the ongoing culture of secrecy, the slow process of judicial review, the lack of political will to implement the act and the fact that public officials still retain significant discretion as to whether to disclose information under the act.