Freedom of Information Act

“Knowledge is power. Information is liberating. Education is the premise of progress, in every society, in every family.” – Koffi Annan

About three weeks ago, precisely on the 27th day of March 2018, the Court of Appeal sitting in Akure, Ondo state delivered a judgement that would most likely, if adequately utilized, liberate Nigerians from the manacle of premeditated and unjustifiable denial of information on public records by state governments which have unwittingly hidden behind their unsupported (at law) position that the Freedom of Information Act 2011 (FOI Act) is not applicable to states just because it is an enactment of the National Assembly.

Irrespective of whatever the erstwhile judicial narrative might have been especially at the Federal High Court and the States’ High Courts over the applicability of the FOI Act to public records of the states, we now have a firm and subsisting position of the Court of Appeal on the issue via their unanimous decision in Appeal No. CA/AK/4/2017 between Martins Alo and Speaker, Ondo State House of Assembly & Anor.

In the case, Martins Alo, a commendable journalist and project officer of an NGO named Upline Resources Foundation, wrote a letter to the respondents through his solicitors requesting for the audited account of Ondo State between 2012 and 2014 but upon receipt of his request, the speaker, Mrs. Jumoke Akindele (1st respondent) informed the appellant that she was not the speaker between 2012 and 2014 and that she did not keep the requested audited accounts.

On the part of the 2nd respondent – the auditor general, Ondo state, he acknowledged receipt of the letter but pleaded for time to seek the attorney general’s legal advice via another letter dated 7thJanuary 2016. It is however on record that, the appellant approached the High Court of Ondo State for an order of mandamus compelling the respondents to oblige him with the information in February 2016.

Without necessarily reviewing the Court of Appeal’s judgement which represents breathe of fresh air as far as the observance of the provisions of the FOI Act is concerned, the author however finds it strange that the learned justice that wrote the leading judgment observed that: “However, without waiting, the appellant “rushed” to court on 11th February 2016”.

From the same judgement, it is evident that the auditor general wrote a letter dated 7th January 2016 but the appellant approached the court on 11th February 2016 – a period of over 30 days after the letter. In the author’s respectful view, this ought not be termed “rush” especially in the light of combined provisions of sections 4 and 7(4) of the FOI Act which deem a request denied where the information is not provided after 7 days of application.

The most striking issue common to all parties as per their respective briefs of argument was whether the FOI Act is applicable to states in general but Ondo state in particular? For an undiluted appreciation of the court’s raison d’etre, I will endeavour to report their lordship’s holdings verbatim as follows:

On the motive of the National Assembly for enacting the FOI Act:

“Looking at the title of the Freedom of Information Act, 2011 as quoted earlier in this judgement, it could be deducted therefrom that the National Assembly’s intention is to regulate access to ‘public records’ @page 12

On the relationship between ‘public records’ and ‘public documents”:

“I am of the opinion the ‘public records’ is synonymous with ‘public documents’ which the Evidence Act 2011 defines in section 102. There is nothing to show that using such definition resulted in expanding the law, rather it is in aid to interpret the intention of the legislative body vis a vis the promulgated Freedom of Information Act 2011.” @page 12

On whether information can be realized from records

“Information can conveniently be given from ‘records’ as such, the argument of the respondents that what the appellant requested for was information and not records cannot be used to defeat the purpose for which the request was made. Information can always be gotten from ‘records’ or documents as the case may be.” @page 13

On whether the Freedom of Information Act is binding on all states of the federation

“Flowing from the above, I hold that public records in respect of which the Freedom of Information Act 2011 was enacted is contained in the concurrent legislative list and therefore makes the Act not only constitutional but binding on the states by virtue of the doctrine of covering the field.” @page 13

“I have earlier on in this judgement under issue 1(a) resolved that the Freedom of Information Act 2011 enacted by the National Assembly is applicable to all states within the federation.” @ page 27

On whether audited account of a state is a public document

“Audited account of Ondo state which the appellant sought to obtain is a public document within the meaning of section 102 of the Evidence Act 2011.” @ page 27

On whether sufficient interest needs to be established in FOI cases

“This goes to show that in applying for an order of mandamus pursuant to the Freedom of Information Act 2011, the general requirement in mandamus proceedings for an applicant to show sufficient legal interest has been jettisoned.” @ page 28

On possession of locus standi as a bane of public interest litigation

“For the sake of emphasis, possession of locus standi has been the bane of the citizen’s advocates, in the public interest litigation to query transparency and accountability in governance in Nigeria. In a democratic dispensation such as Nigeria’s, the citizens have been proclaimed the owners of sovereignty and mandates that place leaders in the saddle. The requirement is a serious fracture of the citizen’s inalienable right to ventilate their grievances against poor governance vis a vis expenditure of public funds generated from their taxes.” @ page 34

On the whole, this judgement represents a judicial settlement, for as long as it subsists, of the conflicting decisions of the various high courts on the applicability of the FOI Act to states and their agencies. One must commend the appellant – Mr. Martins Alo who deserves all the accolades he gets for taking up the gauntlet in this regard.

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