The Freedom of Information Act 2011: How effective is it?

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No nation can thrive without a freedom of information law, and this is vital in promoting Transparency, Accountability, Anti-Corruption, and the Prevalence of Democracy.  When citizens are ignorant of the activities of their leaders, how can they then determine their credibility and their worthiness for reelection?

James Madison, the fourth President of the United States, stated in 1822: “A popular Government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both.  A people who mean to be their own Governor must arm themselves with the power which knowledge gives.” Freedom of information is the freedom of a person or people to publish and consume information. Access to information is the ability for an individual to seek, receive and impart information effectively. This sometimes includes “scientific, indigenous, and traditional knowledge; freedom of information, the building of open knowledge resources, including open internet and open standards, and open access and availability of data; preservation of digital heritage; respect for cultural and linguistic diversity, such as fostering access to local content inaccessible languages; quality education for all, including lifelong and e-learning; diffusion of new media and information literacy and skills, and social inclusion online, including addressing inequalities based on skills, education, gender, age, race, ethnicity, and accessibility by those with disabilities; and the development of connectivity and affordable ICTs, including mobile, the Internet, and broadband infrastructures”.

Citizens’ access to government information, including through the open publication of information, and formal freedom of information laws, is widely considered an important basic component of democracy and integrity in government.

Michael Buckland defines six types of barriers that must be overcome for access to information to be achieved: identification of the source, availability of the source, price of the user, cost to the provider, cognitive access, acceptability. Freedom of information is related to freedom of expression, which can apply to any medium, be it oral, writing, print, electronic, or through art forms. This means that the protection of freedom of speech as a right includes not only the content but also the means of expression. Freedom of information is a separate concept which sometimes comes into conflict with the right to privacy in the content of the Internet and information technology. As with the right to freedom of expression, the right to privacy is a recognized human right, and freedom of information acts as an extension to this right. The government of the United Kingdom has theorized it as being an extension of freedom of speech, and a fundamental human right.

Additionally, the United Nations Sustainable Development Goal 16 has a target to ensure public access to information and the protection of fundamental freedoms to ensure accountable, inclusive, and just institutions. On 28 May 2011, Nigeria’s President Goodluck Jonathan signed into law the Freedom of Information(‘FOI’) Act. With the coming into force of the Act, every Nigerian now has a legal right of access to information, records, and documents held by government bodies and private bodies carrying out public functions. The law was passed to enable the public to access government information, to ensure transparency and accountability. The FOI 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 also seeks to protect serving public officers against any adverse consequences from the unauthorized disclosure of certain kinds of official information. The Act further regulates conflicts between its provisions and those of other enactments, for instance, the Criminal Code, Penal Code, and the Official Secrets Act that prescribe criminal penalties for actions connected to the disclosure of Information. It enables citizens to hold the government accountable in the event of the misappropriation of public funds or failure to deliver public services.

Through this law, the government’s commitment to transparency, accountability, and good governance will be tested. The aim of the FOI was to establish as a legal principle the right of access to documents and information in the custody of the government for public servants are custodians of public trust on behalf of the population who have a right to know what they do.

However, many Nigerian laws come with a secrecy clause such as the Official Secrets Act, the Criminal Code, the Penal Code, and the Evidence Act, etc. The FOI Act primarily basically applies to an Applicant (a citizen)  and Public institutions. An applicant can be a citizen who applies for information pursuant to the Act while a Public institution refers to persons with the corresponding legal duty to provide an applicant with the information or copies of records sought. They include any public official, agency, or institution as well as public institutions providing public services and utilizing public funds.

In addition, certain categories of information in the possession of the public institutions are to be widely disseminated and made readily available to members of the public through various means, including print, electronic online sources, and physically at the offices of such institutions. The information in these categories relate to descriptions of the relevant institution and their functions; classes of records under its control; employee manuals and directions; judgments given in the adjudication of cases; policies, reports, and substantive rules of the institution; the remuneration scheme and dates of employment of all personnel; listings of applications for any contract, permit, grants, licenses or agreements and related materials; and a description of the appropriate officer of the institution to whom an application for information is directed to.

Also, some exemptions require an assessment of whether disclosure may cause a specific type of harm, for instance, endangering health and safety, prejudicing law enforcement, or prejudicing someone’s commercial interests. These are called prejudice-based exemptions.

Furthermore, the free flow of information and ideas lies at the heart of the very notion of democracy and is crucial to effective respect for human rights. Democracy demands that individuals can participate effectively in decision-making and assess the performance of their government. This participation depends on access to a variety of information held by public bodies. For instance, this can be information on the laws or rights applicable in a country, or about the state of the economy, social systems, and other matters of public concern such as the use of public funds. Freedom of information thus contributes to government openness and accountability and represents an important instrument to prevent and combat corruption. It can also help increase government efficiency and responsiveness, along with civic trust. Indeed, one of the most effective ways of addressing poor governance is through open, informed debate. Although the right to information is not a substitute for good governance, it both supports and aids its implementation.

From all the above, freedom of information contributes to enhanced empowerment and equality of all social groups, including women and indigenous peoples. Furthermore, it is linked with well-functioning markets, improvements in investment climates, and effectiveness of development aid. Thus, there is a growing recognition of its relevance to socio-economic development.

Now, the unpleasant thing about this Act is that, despite having been passed into law, the FOI can be curtailed by burdensome mechanisms for information access and weak enforcement, the arbitrary use of exceptions or reference to other legislation to deny public information access, the bad state of record-keeping and archive management systems, and poor monitoring of the law´s implementation. Also, the government’s bureaucratic process may delay access to information and the citizens’ unawareness of their right to information and how to utilize this Act effectively is also another limitation. More so, citizens may not have access to some categories of records.  While the FOIA gives a person, group, association, or organization the right to request access to Federal records, some records are exempted from release. These documents include but are not limited to national security records, records which disclosure will constitute an unwarranted invasion of an individual’s personal privacy; records compiled for law enforcement purposes and Records protected from release by statutes other than FOIA. Therefore, there is a great need for public awareness about the FOI Act and technology can be a great platform to promote digital governance, democracy, citizen participation, transparency, and Accountability in Governance.

In all, the FOIA promises to remove the aura of mystery and exclusion with which public servants cloak the ordinary operations of government and public institutions. It also seeks to change the way public records and information are managed.

 

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