The Importance Of Freedom Of Information Act

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For two days early April last year, the Nigerian army hosted a seminar on “Enhancing Military-Media Relations: Towards Improved Security.” The general conclusion of the seminar was that the media had been sympathetic to Boko Haram in their coverage of the sect’s five-year insurgency. The religious sect has since become the greatest threat to Nigeria’s national security and integrity since the country’s three-year civil war that ended in 1970.

The army said the media should stop giving prominence to activities of the sect. Its chief at the time, Lt-General Azubuike Ihejirika, speaking through a representative, pleaded with the media to stop what he called their “sensational report” of the sect.

In response, the Chairman of Thisday, Chief Nduka Obaigbena, defended what he called the traditional media, namely newspapers, magazines, radio and television, from the charges. The audience at the seminar, he said, should appreciate the fact that the traditional media faced two challenges in their coverage of events. They, he said, often faced reticence on the part of government and also competition from what he called the New Media, i.e. online media, which seem more interested in being first with the news than in being accurate with the news.

Let us first define what Freedom of Information (FOI) is. It means the right of a citizen to ask for information on how he is governed and thereby be in a position to hold government accountable. As an Act, it is therefore one of the most important legal tools citizens and reporters can have in demanding for transparency and accountability in governance.

The struggle for a FOIA in Nigeria took nearly a dozen years to bear fruit. This was when President Goodluck Jonathan signed it into law around mid-2011. It started out as a private member’s bill in 1999 when President Olusegun Obasanjo declined a request by Media Rights Agenda, a civil rights organization based in Lagos, to initiate an executive bill on the subject.

To his eternal credit he did not waste time in signing it into law; it was passed by the National Assembly on May 24, 2011 and then passed on to the President for his signature on May 27. He signed it into law the following day, May 28.

Nigeria’s FOIA covers both the public and private sector, in so far as the latter uses public funds, performs public functions or provides public services. It even provides protection for whistleblowers.

In all, the Act has 31 sections. Sections 1 to 3, each with various subsections, grant everyone the right to have access to public information. Sections 4 to 6 give the time limit for compliance, which is one week. The sections also provide for grounds for extension in complying with a request. Sections 7, 11, 12 14 to 19 and 26 provide for grounds for denial but rest the burden of explaining the denial on the agency in question. Section 8 stipulates that the fees for getting the information requested for be limited to standard charges for duplication and transcribing documents. Sections 9 and 10 make it mandatory for public institutions to keep proper record and also make it a criminal offence punishable on conviction by a Court with a minimum of one year imprisonment for any officer to destroy a document or doctor it before releasing it to the applicant.

Sections 20 to 25 provide for court adjudication in case of denial. Section 26 lists the materials to be exempted from the law and these include published materials and those available for purchase, library or museum materials that are solely for public reference or exhibition, and materials placed in the National Library, National Museum or the non-public section of the National Archives on behalf of any person or organisation other than a government or a public institution.

Sections 27 and 28 provide protection for whistle blowing while Section 29 makes it mandatory for agencies to submit reports of their handling of requests to the Attorney-General of the Federation on or before the February 1 of each year. The AGF, in return, is obligated to notify legislators of the existence of the reports and make copies available to them in both hard and soft copies by April of the reporting year.

Finally Sections 30 and 31 deal complimentary procedures and definitions of key terminologies.

The question I am supposed to answer in this paper is, will a faithful implementation of our Act undermine our security? My answer, as I said at the beginning of this paper, is a categorical No. The reason is simple; the Act makes exception of security matters among the items to which applicants may be denied access.

Problems arise only when public officials try to hide under security to commit misdeeds. A recent case in point was the confiscation in the first week of June of thousands of copies of several newspapers, most notably the Daily Trust, The Nation and Leadership, and the sealing of their distribution points in several major town across the country by soldiers.

Public outrage at the confiscation prompted a response by the Director of Defence Information, Major-General Chris Olukolade. In a press statement he issued on June 6, he implausibly denied that any newspapers were seized. The troops, he said, merely “embarked on thorough search of vehicles conveying newspapers and newsprint across board.” This, he said, “Followed intelligence reports indicating movement of materials with grave security implications across the country using the channel of newsprint related consignments.”

In plain English what the military spokesman meant was that newspaper distribution vans were suspected by the authorities of carrying bombs. This was obviously ridiculous; you don’t search for bombs by seizing newspapers and sealing their distribution points for hours.

This untenable explanation soon led to speculations that the real target of the army’s action was the Daily Trust for its publication of a front page story in its edition of June 4 that the army had shared out part of a land meant for barracks development to several top generals, their spouses, relations and companies for private use. The story is yet to be refuted.

Of course, the media, as society’s mirror and the channel of public communication, can be sensational, biased and may even fabricate “facts”. These unethical and unprofessional behaviours are even worse in the New Media where news and opinion are often not checked for their accuracy before publication.

These infractions are, however, not enough to see FOIA as being in conflict with the security of a nation. First, even though journalists are its greatest beneficiaries the Act is not meant only for the media; individual citizens too stand to benefit. Indeed in some countries, there are more private citizen applicants than journalists. In the UK, for example, records show that of around 120,000 requests made each year private citizens account for 60%, while businesses and journalists account for 20% and 10% respectively.

Second, when journalists break laws there are legal remedies. Unfortunately the authorities often ignore such remedies and resort to extra-judicial and at times even downright illegal ones, like seizing newspapers or closing down broadcast stations. But as our good old Justice Brandeis said, a government “teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

If it seems there is conflict between the media as the greatest beneficiary of FOIA and government in their various functions and objectives, the impression is wrong. True, the media, Old or New, are in the business of maximum disclosure of information. Governments, on the other hand, are in the business of keeping their secrets secret.

But then governments, especially when they are elected, have a duty to be accountable to the people. This means there is a limit to what secrets it can keep away from the public. On the other hand the media has a responsibility to make sure that its news and views do not harm society. This means that the media should not just publish and be damned. Rather public interest should be the overriding factor in their decision to publish.

Excerpts of a paper on Freedom of Information, Security and the Nation by Mohammed Haruna at a retreat on The Media and Security Relationship in National Emergency organized by Trim Communications Ltd in collaboration with the Office of the National Security Adviser.

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