By Adedayo Ogunleye, Abuja
In Nigeria, government agencies sabotage the access to information law by hiding under the exemption clause of national security
It is over nine months since Seember Nyeger, the chief executive officer of the Public Private Development Centre, PPDC, a procurement due process advocacy group, wrote the organisation’s first letter to the office of the National Security Adviser, NSA, requesting details of its cash approvals on capital warrants for the four quarters of 2013.
After such a long wait without any response, Nyeger is no longer under any illusions that the FOI Act, signed into law by President Jonathan on April 17, 2012, is a guarantee that Nigerians have unrestricted access to public information as promised by the law.
Like many other Nigerians who had high hopes when the FOI Bill was enacted into law, she had reasoned that the law would bring an end to secrecy in government business and usher in an era of probity, transparency, and accountability. But the response to her letter to the NSA’s office has removed any such hopes.
Speaking with our reporter in Abuja recently, Nyeger observed that “government agencies have in effect made a toothless bulldog of the much celebrated FOI Act.”
A quiet, confident young woman, she said, with a frown creasing her face, “Evasion is proof of wrongdoing, isn’t it? If they have nothing to hide, they should be forthcoming with the information I requested. According to the Constitution, I am well within my rights to ask for this information.”
In the PPDC letter dated March 17, 2014, it requested details of the sums approved to the NSA’s office as capital warrants for 2013. Other details she requested for were the names of all projects for which the capital warrants were approved, dates of payment, approval documents and amounts approved after fulfilling procurement procedures, among others.
To the letter, the PPDC got a terse response to the effect that the information requested for was in the public domain. According to Section 26 (a), the FOI Act does not apply to materials already available to the public.
However, at the time, the information sought by the PPDC was not readily available elsewhere as the office claimed.
The Centre’s second FOIA requested letter to the NSA’s office, dated April 14, 2014, sought information relating to the contract awarded for the deployment of CCTV cameras across the Federal Capital Territory, FCT.
“According to the 2103 Appropriation Act, N105 million (one hundred and five million naira) was allocated to purchasing CCTVs for policing Abuja. So we requested the names of companies to which the contract for procuring the CCTVs were awarded, plans for installation of the CCTV cameras including location for installation and the current status of installation,” she explained.
This time, she said, a reply came promptly saying that information demanded for pertain to the defence and protection of the Federal Capital Territory and that their release may be injurious to on-going efforts to secure the FCT.
Invariably, the NSA’s office has invoked the exemption clause in Section 11 (1) of the Act which allows public institutions to refuse giving information if disclosure would be injurious to international affairs or defence.
A Culture of Evasiveness
Hiding under the cover of defence and national security is the new way for government institutions to perpetuate the tradition of keeping government business secret and circumventing the FOI law.
Apart from PPDC, many other organisations have had a taste of this. For instance, on September 4, 2014, Gbenga Sesan of Paradigm Initiative Nigeria, PIN, wrote the National Identity Management Commission, NIMC, requesting information pertaining to details of the National Identity Card project.
Specifically, he wanted the procurement and contract records for the provision of payment solution by MasterCard for general multi-purpose cards, documents showing the contract sum, the currency of payment, effective start and end dates, terms and conditions as well as payment schedule and terms.
Other documents requested include signed copies of contract award documents, a NEEDS assessment document justifying this project, a procurement and project plan clearly showing timelines for implementation of various phases of the project, documentation showing expected impact of the project, copies of documents containing the specification and scope of services to be provided by MasterCard.
Along with these, PIN requested for copies of documents showing the specification and scope of services to be provided by Access Bank, evidence of advertisements for the bidding process in various media sources, a copy of the bid submission register containing a list of all bids tendered on the project from when it was advertised till the closure of the bid advertisement.
Also sought were the minutes of the bid opening meeting, attendance list of all individuals and the organizations they represent at the bid opening, standard bidding documents that were issued to all the bidders and details of the aspects of the decision making process including all officials and agencies involved in giving approvals at different levels.
The letter was received and acknowledged on September 5, but PIN would wait more than a month before it received an official response on October 24, even though the FOI Act stipulates a seven day reply period.
The official reply was a denial, a strange one at that.
“…the Commission recognizes the right of Nigerians to seek information in the public domain, particularly in view of the extant FOI Act 2011, and is committed to strict adherence and compliance with the provisions of the Act,” the commission replied.
“However”, it continued, “with regard to your request, be informed that the relationship between the NIMC and MasterCard is that of a grant from MasterCard to the Commission.”
It concluded: “Consequently, the Commission is precluded from disclosing information on the matter, particularly for the overriding interest on National Security, as well as the protection of privileged, proprietary, confidential information of an involved third party in view of the provisions of Section 16(1)a of the Freedom of Information Act 2011.”
Sesan is furious about the reply which he describes as ridiculous.
“It is untenable. We weren’t asking for trade secrets, we weren’t even asking for anything pertaining to national security. On the other hand, the fact is that a foreign company is handling private data on Nigerian citizens without any checks,” he observed.
“Is the NIMC implying that it did not conduct the procurement in accordance with the process stipulated in the Public Procurement Act, PPA, because of the national security implications or that it followed the PPA but cannot give the applicant the information because it falls within the national security exemption?” he queried.
PIN’s Information and Communication Technology, ICT, Policy programme manager, King James argued that even if national security was a legitimate exemption, “the onus is on NIMC to demonstrate how national security applies to the information PIN requested for”.
James noted that there is no attempt to provide that explanation as required by the FOI Act “beyond a blanket reference to, and invocation of national security.”
“There is nothing PIN has asked for in its FOIA request that would require NIMC to disclose privileged, proprietary and confidential information or trade secrets that it obtained from MasterCard. PIN is not asking for the technology that MasterCard is using, except information relating to the process or procedure for the award of the contract, the contract sum and the terms of the contract. There is absolutely nothing PIN is asking for that falls within this exemption. NIMC is simply using avoidance tactics, which usually suggests that they have something to hide,” James concluded.
Certainly, the last word has not been heard about the matter as PIN and PPDC have written another the NIMC demanding for specific information under the provisions of the FOI Act.
“The national ID card project has raised a lot of privacy concerns and we believe that the lack of a data privacy law in Nigeria should make organisations like NIMC consider the weight of their actions more seriously. With diverse institutions – banks, INEC, Immigration Service, FRSC, telecommunications companies – holding the private data of Nigerian citizens, it’s time to ask the tough questions around the absence of Data Privacy law”, ‘Sesan said.
The executive director of Media Rights Agenda, a media freedom advocacy group, Edetaen Ojo, agrees with this position.
“Even if NIMC got a grant from MasterCard, it does not preclude the information from being disclosed. Indeed, information regarding any such grant ought to be proactively disclosed under Section 2(3)(c)(v) of the FOI Act,” Ojo stated.
He continued, “I really do not see how the issue applies or becomes a justification for non-disclosure. Information can only be legitimately withheld if it falls within one of the exemptions contained in the Act and even so, such information should still be disclosed if a public interest in the disclosure exists and if the public interest in the disclosure outweighs any harm that might be caused by the disclosure.”
PIN has vowed to seek legal redress on the matter.
There are even more bizarre examples of the invocation of national security for denial of FOI-based requests from public information.
For example, on July 17, 2014, PPDC wrote a letter to the News Agency of Nigeria, NAN, requesting information about a $1.8million (N123Billion) contract awarded by national wire service to Levvick, a US-based public relations firm, to help change the negative public perception of the Nigerian government’s handling of the Chibok girls’ abduction.
The request letter, dated May 23, 2014, which was signed by Nyeger, received a reply indicating that that the requested information was domiciled with the office of the NSA and that the Centre write to the office if it wanted details of the public relations deal.
Nyeger and her colleagues at the PPDC, even though used to the shenanigans of government agencies when it comes to replying FOIA requests, were shocked to hear that information about a mere PR contract was in the custody of the NSA.
“It wasn’t as if I was asking for the schedule of the battle formations or movements of the counter-terrorism troops fighting in the North-East, was it?” Nyeger observed.
A dogged fighter, Nyeger wrote to the NSA’s office requesting information about the Levvick PR contract but she never got a reply. In fact, according to her, the office subsequently stopped responding to any requests for information made by PPDC.
Noticing a trend whereby agencies of government hide under national security to withhold information requested by the public, the folks at the PPDC decided to test the system and over the next five months wrote letters of enquiry, sometimes in conjunction with PIN, to several government organisations.
Not one responded with the information requested or showed a willingness to provide the information.
Citing mundane excuses, including disclosure being against “the economic interests of a third-party” or “national security”, the request were shrewdly denied.
One of these institutions was the Defence Industries Corporation of Nigeria, DICON.
The request made to DICON jointly by PPDC and Budgit Nigeria on July 17, 2014 asked for details of the capital projects for which warrants were approved in 2013, date of release of funds approved and amount utilises for each project
In its reply of August 6, 2014, signed by J.E. Odusanya for the DG, DICON asked the Centre to “re-route your request through the Ministry of Defence.”
A similar request made to the defence ministry met with a brick wall as there was no response at all.
Echoes of a Dark Past
Such reactions from state institutions are obviously a throwback to the days before the law guaranteeing unhindered access to public information was passed – the era when civil servants and other officials could hide under the Official Secrets Act to deny requests for information.
Section 1 of Official Secrets Act (Cap 03) Law of the Federation of Nigeria 2004, made it an offence for any person to transmit, obtain, reproduce or retain any classified matter. Established shortly after independence in 1962, the Act meant that all government officials had to swear to keep all government transactions secret.
So for decades, government officials hid behind the provisions of the Act to deny requests for information particularly by journalists and civil society groups working in the area of transparency. Before the passing of the FOI Act it was virtually impossible to access public information, particularly concerning government contracts, procurements and other expenditure, thus making for lack of accountability in the public space.
Such was the atmosphere sustained by the Official Secret Act and many public servants who apparently belong to the ‘old guard’ are still so used to the practice of instinctively denying the people access to public information that it would take drastic action, mainly law suits, to force them to comply.
An Abuja-based lawyer, Deji Morayinko, sees the problem as the “vestigial clinging to the old order” in which government institutions consider themselves as not answerable to the public.
“There is a great need for awareness/sensitizing workshops to be organized for government institutions. Many officials in government institutions are still haunted by the spectre of the Official Secrets Act, forgetting that the FOI Act supersedes the Secrets law.
Luckily the recourse to the courts to force the implementation of the FOI Act has paid off handsomely as several civil society groups have won critical victories.
One of such cases was instituted by a coalition of civil society organizations under the aegis of Media Initiative Against Injustice, Violence and Corruption, MIIVOC, on July 7, 2014, against the Economic and Financial Crimes Commission, EFCC, over the agency’s refusal to respond to a request for information.
MIIVOC in a letter dated January 27, 2014, had requested for details of the number of policemen seconded to commission, support and funding from the international community in 2013, especially funds from the Inter – Governmental Action Group Against Money Laundering in West Africa, GIABA, the Economic Community of West Africa, ECOWAS and World Bank, EFCC officials trained by international agencies in 2013 and how much was saved in the budget agency’s because of this support as well as a financial statement for 2013.
The anti-graft agency had ignored the request.
In the case filed before the Federal High Court, Abuja, the group prayed the court to compel the defendant to make available the information sought in accordance with Section 4 of the Freedom of Information Act, 2011.
The plaintiff sought four reliefs among which is “a declaration by the court that the denial of assess by the respondents to make available to the applicant the information sought, without explanation amounts to a violation of the applicant’s right to information enshrined in the Freedom of Information Act 2011, section 4”
The court granted an order of mandamus compelling the EFCC to explain why it must not release the information requested by a civil society group under the Act.
Another legal victory for access to public information in Nigeria was recorded when F.O.C. Uzoegwu, another Abuja-based lawyer, took the Central Bank OF Nigeria, CBN, to court after his request for information was denied.
On November 9, 2011, Uzoegwu had applied to the apex bank for records of wages and allowances that accrue to the governor, the deputy governor and the top-level directors. His request was ignored completely and the bank declined to furnish him with the requested information, leading to Uzoegwu instituting a court case against the CBN and the Attorney General of the Federation. The respondents argued that the requested information was personal information communicated to them upon appointments and that any disclosure could lead to misinterpretation, thereby exposing the named parties to endangerment.
The court ruled in Uzoegwu’s favour, stating that pursuant to Section 25 (c) of the FOI Act, the defendants should furnish the plaintiff with the requested information.
A similar scenario played out when Legal Defence and Assistance Project, LEDAP, wrote a letter to the Clerk of the National Assembly, requesting information about details of salary, emoluments, and all allowances that accrue to all members of the House of Representatives and Senate.
Again, a denial of request by the Clerk’s office led to a law suit which ended with the court ruling in LEDAP’s favour by granting a mandamus which ordered that the respondent disclose the requested information.
However, one of the most celebrated victories for advocates of free access to information in the country came from the case by the Centre for Social Justice, CENSOJ against the minister of finance.
The transparency advocacy group on April 5, 2013 wrote to the finance minister seeking the details of the statutory transfers in the 2013 budget. Again, as usual with many government institutions the request was denied by the minister’s office.
The Centre had argued in the letter that there is no law authorizing lump sum statement of allocations. The CSJ explained further that no agency of government, under any guise, is allowed to spend public resources in a way and manner, and for purposes not known to citizens.
CSJ approached the Court under the Freedom of Information Act and the Fiscal Responsibility Act to compel the office of the minister to grant its application.
In its ruling, the Court held that:
“The Applicant herein has satisfied the Court that they applied for the information from the Respondent which information was refused. It is not in dispute that the information is in the custody or possession of the Respondent in his capacity as a public official. It is therefore my opinion that the applicant has satisfied the requirement for the grant of this application. Accordingly the Applicant’s Originating Motion dated 5th June, 2013 is granted as prayed as regards prayers A – D”.
The Court specifically ruled that denying the applicant access to the details of the statutory transfer in the 2013 Appropriation Act without explanation constitutes an infringement of the applicant’s right guaranteed and protected by Section 1(1) of the Freedom of Information Act, 2011.
An Order of Mandamus was also granted compelling the respondent to grant to the applicant access to the details of the statutory transfer in the 2013 Appropriation Act, specifically the details of the transfer to the National Judicial Council, Niger-Delta Development Commission, Universal Basic Education, National Assembly, Independent National Electoral Commission and National Human Rights Commission.
Hailing the court’s ruling, CSJ declared that the “judgment is a reaffirmation of the right of Nigerians to be governed in an open and transparent manner and through the rule of law – encompassing fiscal responsibility and best practices in fiscal governance.”
Recourse to the courts continues to be a trump card for those who are advocates for a transparent society. However, many Nigerians worry that sometimes, orders from the court instructing public institutions to disclose information even get ignored too.
Ene Enonche, national coordinator of Right to Know, R2K, an access to information group, observed that a worrisome trend had emerged in which some public institutions refuse to comply with the FOI Act even after court judgments have been ruled that they should.
“While the testing of the FOI Act in our courts is good for precedence and interpretation of the law, it is more sensible for public institutions to develop the will to comply with the clear provisions of the Act”, she said.
Enonche opined that when citizens feel that they need to resort to the long and arduous path of litigation before they are able to obtain information from public institutions, the cause of establishing open and transparent governance is not served.
“Apart from the length of time it would take for litigations and appeals, there is also the considerable expense of the entire legal process, beyond the reach of many Nigerians,” Enonche observed.
There has been no challenge yet in court of denial of a FOIA request on the basis of national security but PIN is set to change that in the early days of the new year with a law suit against NIMC.