Case Summary and Outcome

In July 2011, the High Court in Lagos, Nigeria ruled that the newly adopted Freedom of Information Act could not be applied retroactively and that, in any event, information related to governmental overhead costs would fall under the exemption from disclosure of personal information maintained with respect to public sector employees. Accordingly, the Court rejected the application brought by an organization seeking a mandamus to compel the Lagos State House of Assembly to provide information on its overhead costs from 1999 to 2011. The Court reasoned that the Act’s failure to specify that it would apply retrospectively was determinative because in the absence of a clear intention within the text it “would affect vested rights or impose liability or disqualification for past events.”

This case analysis was contributed by Right2Info.org and has been adapted from the summary drafted by Media Rights Agenda.

Columbia Global Freedom of Expression could not identify the official legal and government records on the case and that the information contained in this report was derived from secondary sources. It must be noted that media outlets may not provide complete information about this case. Additional information regarding this legal matter will be updated as an official source becomes available.

Facts

On July 14, 2011, the Incorporated Trustees of the Citizens Assistance Centre (Incorporated Trustees) requested information regarding government overhead costs from 1999 to September 2011 from the Lagos State House of Assembly, the state legislature (the legislature). The Incorporated Trustees had sought to use the newly adopted Freedom of Information Act, 2011 (the FOI Act).

The legislature did not comply with the request and the Incorporated Trustees approached the High Court for an order of mandamus compelling disclosure of the information.

Decision Overview

The High Court had to determine whether the legislature was obliged to provide the information that the Incorporated Trustees requested.

The legislature argued that it was not required to provide the information. Along with arguing that the Incorporated Trustees lacked locus standi as they were not a registered organization and “not a juristic person”, the legislature argued that the information could not be published “without creating crisis in the interest of the state and its security” and that any disclose would cause government employees to “suffer irreparable injury and/or prejudice”. Consequently, the legislature argued, the information was thus subject to the personal information exemption in section 14 of the FOI Act. The legislature also submitted that the FOI Act could not be applied retroactively as it took effect on 28 May 2011 after the period that the requested information concerned.

The Court accepted that the Incorporated Trustees did have locus standi, and said that “juristic persons” takes on a broad meaning and includes “natural persons, incorporated companies, corporations with perpetual succession and unincorporated associations granted the status of legal persons by law”.

The Court held that the FOI Act could not be applied retroactively, and noted that the preamble to the Act “answers the [retroactivity] question succinctly,” because it makes no mention of retroactivity and would have “clearly stated” if the Act had been intended to apply retrospectively. In the absence of a clear intention within the text, “an interpretation giving retrospective effect to a statute should not be readily accepted where that would affect vested rights or impose liability or disqualification for past events”.

The Court also considered the fact that the Incorporated Trustees “delayed beyond the 30 days approved by section 20 of the Act before filing the action”. The Court held that, given the “extraordinary and residuary remedy” of an order of mandamus, the Incorporated Trustees’ failure to comply with the procedural guidelines was “fatal to their application” for information. The Court has the power to refuse an order of mandamus at its discretion and “will not grant the order if a specific alternative remedy which is equally convenient, beneficial and effectual is available”.

Lastly, the Court agreed with the legislature that the personal information contained within the requested information rendered it subject to the exception in section 14 of the Act. Section 14(1) provides that a public institution “must deny an application for information that contains personal information and information exempted under the section which includes personnel files and personal information maintained with respect to employees, appointees or elected officials of any public institution or applicants for such positions”.  Accordingly the Court ruled that since public interest in disclosure in this case did not outweigh the protection of privacy the legislature was not required to disclose the information.