By O. G. Ogbom, Esq., Ph.D.
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The Official Secrets Act, Cap. O3, Laws of the Federation of Nigeria 2004, regulates the handling and disclosure of classified official information. Its legislative history reflects an era in which the protection of state information was approached primarily through restrictions on unauthorised disclosure. Section 1 addresses the protection of official information and provides for offences relating to the transmission, obtaining, reproduction and handling of classified matter, subject to the statutory provisions and applicable circumstances. Other provisions deal with matters including the protection of defence establishments, certain restrictions on photography during emergencies, search warrants, penalties and interpretation.
The existence of such legislation is not inherently inconsistent with democracy. National security requires legal protection against espionage, unauthorised access to sensitive installations and the deliberate compromise of classified operational information. The difficulty arises when the concept of official secrecy is interpreted too broadly or applied without adequate consideration of competing constitutional rights.
Three distinctions are particularly important. First, information does not become legitimately secret merely because it was generated by a government institution. The public administration of funds, the implementation of public policies and the performance of statutory duties are ordinarily matters of legitimate public concern. Second, the classification of information should be based on the potential harm its disclosure would cause, rather than the embarrassment it might cause to an institution or public officer. Third, the existence of an offence relating to unauthorised disclosure should not automatically eliminate consideration of statutory protections, public-interest disclosures, constitutional guarantees or other applicable legal defences.
Information generated by a government institution becomes legitimately secret only where its withholding is supported by a recognised legal basis and the applicable statutory conditions are satisfied. Such information may include sensitive military operational plans, intelligence sources, diplomatic communications, security vulnerabilities and records whose disclosure would compromise a genuine criminal investigation. Under sections 11 and 12 of Nigeria’s Freedom of Information Act 2011, certain information may be withheld where disclosure would cause the specified injury to national defence, international affairs or law enforcement. However, the mere fact that a record originates from a security agency or bears a “confidential” or “classified” designation should not, without more, be treated as a universal justification for secrecy. The institution must establish the applicability of the relevant legal protection, subject to the statutory exceptions, public-interest considerations and judicial review mechanisms. The decision in Istifanus Daniel Isa v. National Security Adviser & Anor, Suit No. NICN/ABJ/328/2017 (judgment delivered on 30 June 2021), provides a relevant illustration of the legal tensions surrounding national-security administration and alleged whistleblowing, although it did not directly determine the validity of a secrecy classification. The governing principle is that legitimate secrecy protects a legally recognised interest; it must not become a convenient instrument for shielding public misconduct from scrutiny.
A democratic government must possess the capacity to protect information whose disclosure could endanger national security. Military operational plans, intelligence sources, sensitive defence installations and certain diplomatic communications may legitimately require confidentiality. However, the power to classify information also creates a risk: the same instrument designed to protect the state may be used to protect public officials from scrutiny. The fundamental question is therefore not whether government should maintain secrets. Every responsible state must protect certain categories of information. The real question is whether the classification and withholding of information are governed by clear legal standards, subject to independent review and limited to circumstances in which secrecy is genuinely necessary.
The Freedom of Information Act 2011 marked an important development in Nigeria’s legal framework for access to public records. It was enacted to facilitate access to information held by public institutions, strengthen accountability and establish procedures for requesting and obtaining official records. Section 1(1) provides a right of access to records held by public institutions, subject to the Act’s provisions and exemptions. The applicant is not required to demonstrate a special legal interest in the information requested.
Sections 2 and 3 establish obligations relating to the publication and accessibility of information and the implementation of the Act. Sections 4 to 7 address requests, responses and circumstances involving denial of access. In Myson Nejo v. Federal Ministry of Humanitarian Affairs and Poverty Reduction, Suit No. FHC/ABJ/CS/1222/2025, decided on 3 November 2025, the Federal High Court ordered disclosure of Conditional Cash Transfer Programme records and awarded damages for the refusal to provide the information. This decision illustrates that failure to respond within the statutory period may constitute deemed refusal and that an institution resisting disclosure must justify its position within the framework of the Act. Section 20 provides a judicial remedy for persons whose access to information has been denied. In Elukpo v. Medical Director, Federal Medical, (2021) LCN/15023(CA), the Court recognised the FOI Act’s objective of promoting openness and accountability but emphasised that an applicant should have a reasonable basis for believing the respondent possesses the information sought. Also, in Public & Private Development Centre Ltd/Gte v. Code of Conduct Bureau & Anor. (2024) LPELR-61840(CA), the Court considered the constitutional requirement for the National Assembly to prescribe the terms and conditions for inspection of asset declarations. It held that the general FOI framework could not displace that specific constitutional requirement.
In Lawyers Network Against Corruption Ltd/Gte v. Central Bank of Nigeria, Appeal No. CA/ABJ/CV/1210/2023, the Court of Appeal set aside the striking out of an FOI application on a procedural ground, underscoring the need to prevent procedural obstacles from frustrating the Act’s objective of prompt access to information. More recently, in HEDA Resource Centre v. National Assembly, Suit No. FHC/ABJ/CS/51/2022, the Federal High Court ordered disclosure of records concerning the National Assembly Complex renovation expenditure. These decisions illustrate the judiciary’s role in giving practical effect to transparency and accountability, while the reported appellate decisions concerning asset declarations demonstrate that the right is not unlimited.
The Act also recognises that transparency is not absolute. Its exemptions address matters including international affairs and defence, law enforcement and investigations, personal information, third-party records and privileged communications, subject to the relevant statutory conditions and exceptions. Section 27 is particularly significant because it provides protection in specified circumstances for disclosures made in good faith pursuant to the Act and addresses certain unauthorised disclosures involving matters such as violations of law, mismanagement, gross waste of public funds, fraud, abuse of authority and substantial and specific dangers to public health or safety.
The proper interpretation of these provisions is essential. The Freedom of Information Act does not abolish every restriction on official information, nor does it authorise the unrestricted disclosure of all classified material. Rather, it establishes a statutory framework under which access, exemption, disclosure and accountability must be assessed according to law. Although the Constitution of the Federal Republic of Nigeria 1999 does not expressly formulate a general right to information in the same language as the Freedom of Information Act, several constitutional provisions are relevant to the debate. Section 22 provides that the press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in Chapter II and hold government accountable to the people. While section 22 is located in Chapter II and is subject to the constitutional framework governing the justiciability of Chapter II provisions, it expresses an important constitutional expectation: public authorities must operate in a manner consistent with democratic accountability.
A system in which official secrecy routinely prevents journalists from investigating public expenditure, misconduct or failures in public administration would undermine the constitutional purpose of this provision. Again, section 39 guarantees freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference, subject to constitutionally permissible restrictions. The right to receive information is relevant to the public’s ability to participate meaningfully in democratic governance. It supports investigative journalism, public debate and the scrutiny of government policy. The Supreme Court has long recognised the importance of free expression and public comment, while acknowledging that the right is subject to lawful limitations. See Joseph Mangtup Din v. African Newspapers of Nigeria Ltd (1990) 3 NWLR (Pt. 139) 392. Nevertheless, section 39 does not mean that every government record must be disclosed in every circumstance. The constitutional inquiry must consider the nature of the information, the legal basis for restricting access and the legitimacy and proportionality of the restriction.
Section 45 recognises that certain rights protected under sections 37, 38, 39, 40 and 41 may be subject to laws reasonably justifiable in a democratic society for specified purposes, including defence, public safety, public order, public morality and the protection of the rights and freedoms of others. The existence of section 45 demonstrates that constitutional rights and national security are not necessarily incompatible. However, a restriction must satisfy the applicable constitutional requirements. A general appeal to national security cannot automatically validate every restriction on information.
National security is a legitimate responsibility of government. The state must be able to protect defence installations, military operations, intelligence sources, sensitive communications and information whose disclosure could expose individuals to serious danger. However, national security must not become a formula that ends legal inquiry. A defensible restriction on access to information should satisfy several considerations:
- The restriction must have a valid basis in law.
- The information must implicate a recognised interest, such as defence or public safety.
- Withholding the information must be reasonably necessary to protect that interest.
- The restriction must not extend further than the legitimate purpose requires.
- The decision should be capable of independent review, subject to appropriate safeguards for genuinely sensitive material.
The need for independent review of decisions to withhold information is illustrated by SERAP v. President of the Federal Republic of Nigeria & Anor, Suit No. FHC/L/CS/238/2022, in which the Federal High Court, Lagos, on 28 May 2024, ordered disclosure of the agreement between the Federal Government and Twitter, rejecting the assertion that disclosure was prejudicial to national security or protected by the Official Secrets Act. Equally instructive is the Federal High Court decision concerning the Federal Government’s loan agreement with the Export-Import Bank of China for the Abuja Light Rail Project. In that matter, the court examined the disputed document pursuant to section 22 of the Freedom of Information Act and found no sufficient basis for the claimed commercial confidentiality. The court’s approach demonstrates how judicial scrutiny can be reconciled with legitimate secrecy: the public institution must justify withholding the information, the court must independently examine that justification, and any genuinely exempt portions may be protected without necessarily concealing the entire record. Sections 22–25 of the Act provide the statutory framework for this balance by empowering the court to inspect disputed records, adopt protective procedures, place the burden of justification on the public institution and order disclosure where the statutory conditions are satisfied.
The Proposed Official Secrets (Transparency and Harmonisation) Amendment Bill 2025
The Official Secrets Act 1962 primarily criminalises unauthorised transmission, obtaining, reproduction or retention of classified official information, particularly under section 1. Its approach is largely security-centred and does not expressly establish a comprehensive public-interest defence for whistle-blowers or journalists who disclose wrongdoing. By contrast, the Official Secrets (Transparency and Harmonisation) Amendment Bill 2025 proposes to align the Act with the Freedom of Information Act 2011, decriminalise certain good-faith disclosures made in the public interest, strengthen whistle-blower protections and reinforce press freedom.
The existing Act emphasises the protection of classified information through criminal sanctions, whereas the proposed Bill seeks to balance legitimate national-security secrecy with transparency, accountability and freedom of expression. It proposes a narrower definition of national security and safeguards for disclosures made in the public interest, while retaining protection for genuinely sensitive information. However, the Bill remains a proposal unless and until enacted; its proposed protections should not be presented as rights already created by law.
The debate over reform is reflected in the proposed legislation titled A Bill for an Act to Amend the Official Secrets Act, Cap. O3, Laws of the Federation of Nigeria 2004, to Align with the Freedom of Information Act 2011, Safeguard Whistle-Blower Disclosures, Protect Press Freedom, and Enhance Transparency and Accountability in Public Administration; and for Related Matters. The Bill is available through the National Institute for Legislative and Democratic Studies’ legislative repository. Its explanatory memorandum states that the proposal seeks to align the Official Secrets Act with the Freedom of Information Act, decriminalise good-faith disclosures in the public interest, protect whistle-blowers and reinforce press freedom.
The proposed reforms are important because they recognise that the law governing official secrecy should not be considered in isolation from later developments in constitutional democracy and access-to-information legislation. Nevertheless, a proposed Bill must not be treated as an enacted statute merely because it has been published or introduced into the legislative process. Its legal status, progress through the National Assembly, final text and any subsequent assent must be verified before relying on it as binding law.
The reform agenda should address at least four issues:
a. The definition and classification of information that may legitimately be protected.
b. The relationship between secrecy offences and the protections available under the Freedom of Information Act.
c. The protection of good-faith disclosures revealing corruption, abuse of power, serious illegality or dangers to public safety.
d. The availability of independent judicial review of decisions to classify or withhold information.
The objective should not be to weaken the state’s capacity to protect genuine secrets. It should be to ensure that secrecy powers are exercised for legitimate purposes and cannot readily be manipulated to suppress accountability.
The relationship between secrecy and corruption is particularly important in public procurement, public expenditure and the management of public assets. Where information about contracts, expenditure, procurement decisions or the performance of public institutions is withheld without a lawful justification, citizens may find it difficult to determine whether public resources are being used properly. Transparency enables journalists, civil society organisations, legislators, auditors and members of the public to scrutinise public decisions. It can also help expose conflicts of interest, inflated contracts, irregular awards and waste.
Notwithstanding this, not every record concerning a government transaction must necessarily be released without restriction. Personal data, legitimate commercial confidentiality, security-sensitive details and information protected by a valid statutory exemption may require redaction or withholding. The legal question should therefore be whether the particular information falls within a recognised exemption and whether the applicable statutory conditions, including any relevant public-interest provisions, have been satisfied. The Official Secrets Act should not be used as a convenient substitute for this analysis.
Institutional and Administrative Challenges
Even where a statutory framework exists, the practical effectiveness of access-to-information rights depends on implementation. Several challenges may undermine the operation of the Freedom of Information Act: poor record management and inadequate digitisation of public records; limited institutional capacity to process information requests; delayed responses and insufficient explanations for refusals; overclassification of routine administrative information; inadequate public awareness of statutory access rights; reluctance to disclose records that may reveal administrative failures; and the cost, delay and complexity of judicial enforcement.
The Federal Ministry of Justice’s Freedom of Information reporting and institutional guidance, together with the existence of Freedom of Information portals and desks in public institutions, provide useful starting points for assessing implementation. However, the existence of a portal or reporting mechanism is not, by itself, proof of effective compliance. Meaningful assessment requires reliable data on requests received, responses given, refusals, exemptions invoked, response times and the outcomes of judicial challenges. A stronger system should make such information publicly available and facilitate independent assessment of institutional performance.
Conclusion
The relationship between the Official Secrets Act and the constitutional right to freedom of expression underscores the continuing challenge of reconciling national security with democratic accountability in Nigeria. While the state has a legitimate duty to protect classified information, intelligence sources, military operations and other matters whose disclosure could threaten public safety, secrecy must not become a convenient instrument for concealing corruption, administrative failures or abuse of public office. Sections 39 and 22 of the Constitution of the Federal Republic of Nigeria 1999, read alongside the Freedom of Information Act 2011, provide an important framework for protecting expression, promoting access to public information and holding public institutions accountable. Ultimately, the legitimacy of secrecy should be determined by law, the nature of the information, the harm that disclosure may occasion and any applicable public-interest considerations.
O. G. Ogbom, Esq., Ph.D., is a Port Harcourt-based legal practitioner. He may be reached via ogbomgoodluck@gmail.com or ogbom@lawfreightattorneys.com.ng.
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