Access to Public Information
Bubon v. Russia
Closed Expands Expression
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The Federal High Court of Nigeria held that public institutions must comply with requests for information within seven days. If they refuse to comply, they must provide specific reasons for refusal under the Freedom of Information Act (FOIA) in a notice to the applicant within seven days of the request. The Court reasoned that the basic principle behind most freedom of information legislation is that the burden of proof falls on the body asked for information, not on the person asking for it and, as such, the individual requesting information does not usually have to give an explanation for his/her actions, but if the information is not disclosed a valid reason has to be given.
This case analysis was contributed by Right2Info.org.
On January 26, 2012 Boniface Okezie asked the Attorney-General of the Federation for the following pieces of information relating to the operations of the Ministry of Justice: 1) a list of criminal prosecutions being carried out by private lawyers; 2) the total amount spent in the course of the said prosecutions and the source of funding; 3) the amount the Ministry of Justice pays to its legal officers; 4) the amount the Ministry of Justice spent in training its legal officers over the past year; and 5) the reason for abandoning the legal officers in the Ministry of Justice in favor of private lawyers. On the same day, Okezie also requested similar items of information from the Economic and Financial Crimes Commission (EFCC), in addition to information regarding the EFCC’s monetary dealings with Cecilia Ibru, the former Managing director of Oceanic Bank.
Both the Ministry of Justice and the EFCC acknowledged receipt of the requests for information but failed to comply with the requests.
When Okezie brought suit against the Attorney-General and the EFCC to compel disclosure, the Attorney-General denied that the government had deliberately refused Okezie’s request, instead claiming that “the request by the Plaintiff [was] being processed, and due to the classified nature of the request, the Ministry need[ed] to collate the data relating to financial issues from the Finance Department and the other department handling training matters.”
The EFCC argued that the Federal High Court in Lagos “lacked territorial jurisdiction,” since “the cause of action arose in Abuja, and . . . the head office of the EFCC was in Abuja.” The EFCC also advanced that “the Plaintiff had no locus standi to institute [the] action, that the nature of the information would infringe on state security and the right of the lawyers in relation to client and solicitor relationship.”
At the outset, the Court established that the “basic principle behind most freedom of information legislation is that the burden of proof falls on the body asked for information, not on the person asking for it.” As such, the individual requesting information “does not usually have to give an explanation for their actions, but if the information is not disclosed a valid reason has to be given.” To accord with individuals’ rights to request information under the FOIA, public institutions are expected to convey the requested information “promptly but not later than seven days after it has received a request.” Where a request is denied, the institution must “give notice to the Applicant” stating the basis for refusal within the FOIA “within seven days.” Since the Attorney-General did not appear to be “contesting the case on the merits” and provided no basis under the Act for not supplying the information, the Court concluded that the Attorney-General “ha[d] no . . . power under the law” to have “kept mute.”
The Court also rejected in large part the various arguments advanced by the EFCC. It said that the EFCC erred in claiming that the Court lacked territorial jurisdiction because the action was not brought in Abuja. It found that such rules of civil procedure are “not mandatory, but directory.” Moreover, even if the EFCC’s headquarters were in Abuja, it was a “known fact that the [EFCC] carries on [a] substantial part of its business . . . in Lagos.”
As to the locus standi issue, the Court held that it was not necessary for a plaintiff “to demonstrate any specific interest in the information being applied for” to have standing to bring suit. Rather, the requester of information was “entitled as a Citizien of [Nigeria] to institute [the] proceeding to compel the Defendants . . . to comply with the provisions of the Freedom of Information Act.”
With regard to the other two exceptions raised by the EFCC, the Court noted that while the EFCC was “entitled to protect information that is properly classified in the interest of national security,” and while “some of the information requested […] threatened national security”, the EFCC still had the duty to respond to the request. With respect to EFCC’s attorney-client privilege argument, the Court acknowledged that such an exemption did exist (see Section 14(1)(a) of the FOIA) but explained that it was not able to opine on the issue. “Whether there exists a confidentiality agreement” is “an issue of fact,” and the EFCC failed to provide specific information on the “nature of the relationship.”
Finally, the Court addressed the issue of fees paid by the defendants to their legal practitioners by referring to an earlier judgment finding that such information would “interfere with the contractual or other negotiations of a third party”. As a result, the Court said that the public interest in disclosure did not outweigh the protected interest in the present case.
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