E X E M P T I O N S U N D E R T H E F R E E D O M O F I N F O R M A T I O N A C T 2 0 1 1

PREPARED BY: SOLOMON EDOH, LL.B (HONS) BL, SOLICITOR & BARRISTER: TAYO OYETIBO & CO.

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E X E M P T I O N S U N D E R T H E F R E E D O M O F I N F O R M A T I O N A C T 2 0 1 1

1 . 0 I N T R O D U C T I O N

The passing of the Freedom of Information Act 2011 (FOI Act) into law is a

watershed in the protection of the constitutionally guaranteed right to

freedom of expression. Thus Section 39(1) of the Constitution of the

Federal Republic of Nigeria 1999 provides that every person shall be

entitled to freedom of expression, including freedom to hold opinions and

to receive and impart ideas and information without interference. The bane

of this constitutional provision had, before the advent of the FOI Act, been

the Official Secrets Act. Although the long title of the Official Secrets Act

states that the object of the Act was to make further provisions for securing

public safety and for purposes connected therewith, the substantive

provisions particularly Section 1 thereof seeks to protect official information

from public disclosure. By this provision, it is a Criminal offence for a

person to transmit any classified matter to a person to whom he is not

authorized on behalf of the government to transmit or obtain, reproduce or

retain any classified matter which he is not authorized on behalf of the

government to obtain, reproduce or retain. Classified matter is defined in

Section 9 of the Act to mean “any information or thing which under any

system of security classification, from time to time, in use by or by any

branch of the government, is not to be disclosed to the public and of which

the disclosure to the public would be prejudicial to the security of Nigeria.

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The FOI Act is a piece of legislation that has therefore improved Nigeria’s

image and standing in the comity of nations and more importantly,

elevated Nigeria to the league of progressive nations in the area of

accessibility to public information. The passing of the Act is without doubt a

giant stride taken towards entrenching and consolidating democratic

principles in Nigeria.

The primary objectives of the FOI Act, as can be gleaned from the

preamble to the Act, are to make public records and information freely

available and to also protect public records and information to the extent

consistent with the public interest and protection of personal privacy. In

addition, the FOI Act also seeks to protect serving public officers from any

adverse consequences of disclosure of certain kinds of official information

without authorization and establishes the procedures for the achievement

of these purposes. In a nutshell, the Act creates the right of access to

information in the custody of or under the control of public institutions or

authorities and establishes a legal regime for the exercise and/or

enforcement of this right.

The 1999 Constitution of the Federal Republic of Nigeria (as amended)

has established Nigeria as a democratic republic. The enactment of the

FOI Act therefore is in line with the democratic principles and ideals

established by the Constitution. It is a generally accepted principle that

democracy requires an informed citizenry and transparency of information

as both are extremely vital to its survival and optimal functioning. In

addition the exercise and enforcement of the right to information would

help to promote good governance, and give fillip to the fight against

corruption. It would also enable the citizens to hold governments and their

agencies accountable for their actions.

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Although democracy requires an informed citizenry and transparency of

information in other to survive, uncontrolled disclosure of some categories

of information may in some cases conflict with other public interests

including efficient operation of governments, optimum use of limited fiscal

resources and the preservation of confidentiality of sensitive information.

This fact therefore makes it extremely necessary and expedient for the

state to establish a framework for brokering and/or harmonizing these

conflicting interests while at the same time preserving the democratic ideal

of giving everyone access to information about public affairs.

This aptly defines the primary essence of the FOI Act. This is because the

Act preserves the democratic ideal of allowing for free access to

information by creating the right to information while it, at the same time,

protects certain information from disclosure in the interest of the state,

personal privacy and other considerations in manner consistent with our

democratic ideals.

The thrust of this work, therefore, is the consideration of those provisions

of the FOI Act which seek to exempt certain classes of information from

disclosure for the purpose of protecting certain interests.

I N F O R M A T I O N E X E M P T E D F R O M D I S C L O S U R E U N D E R T H E F O I

A C T

Information exempted from disclosure refers to information which public

institutions, authorities or agencies are not under obligation to disclose

under any circumstance and information, the disclosure of which lies

strictly at the discretion of the public officer, authority or agency in custody

of the information in question.

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The provisions of the Act which allow for exemption of certain information

from disclosure include:

a. S e c t i o n 1 1 which gives a public institution a discretion to deny or grant

an application for information the disclosure of which may be injurious

to the conduct of international affairs or defense of the Federal Republic

of Nigeria. A public institution may under this section, deny access to

any information, the disclosure of which could compromise national

security or be inimical to Nigeria’s foreign policy objectives.

b. S e c t i o n 1 2 : This gives a public institution a discretion to deny or grant

an application for information the disclosure of which may interfere with

law enforcement and investigation such as amongst other

considerations. Under this section, a public institution may deny access

to information or refuse to disclose information which amongst other

things would:

i. Interfere with pending or actual and reasonably contemplated

law enforcement proceedings conducted by any law

enforcement or correctional agency,

ii. Interfere with pending administrative enforcement proceedings

conducted by any public institution,

iii. Deprive a person of a fair trial or an impartial hearing,

iv. Unavoidably disclose the identity of a confidential source,

v. Constitute an invasion of personal privacy under Section 15 of

the Act,

vi. Obstruct an ongoing criminal investigation, or

vii. Reasonably be expected to facilitate the commission of an

offence.

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c. S e c t i o n 1 4

This section imposes a duty on a public institution to deny an

application for information which contains various types of personal

information. The aim of the exemption provided under this section is to

ensure the protection of personal privacy. However, Section 14(2)

imposes a duty on the public institution to disclose any information

which contains personal information if the individual to whom it relates

consents to the disclosure or if the information sought for is already

publicly available.

d. S e c t i o n 1 5 : B y t h i s p r o v i s i o n a duty is imposed on public institutions

to deny an application for information that contains third party

information such as trade secrets and commercial or financial

information, proposal and bids for any contract, grants or agreements,

information disclosure of which could reasonably be expected to

interfere with business or contract negotiations, amongst others. One

major advantage of this provision is that it will create a level playing

field for every person concerned with bidding or negotiating for

government contracts or contracts with public institutions. It will prevent

competitors from getting access to information which could give one an

unfair advantage over another or others in a bidding process.

e. S e c t i o n 1 6 gives public institutions a discretion to deny access to or

disclose information that is subject to certain professional privileges

such as legal practitioner/client privilege, health worker/client privilege,

journalism confidentiality privileges and any other professional

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privileges conferred by the Act. The exemption provided for in this

section cannot be overemphasized.

It, for instance, sustains public confidence in the judiciary and

encourages parties who have disputes to resort to courts rather than

settle their disputes in the fields in a manner which could lead to breach

of public peace or any other sort of self help. This is because if a lawyer

is under a binding duty to disclose the personal, sensitive or confidential

information which has come into his knowledge by virtue of the briefing

he gets from a client, the confidence which potential litigants have in the

courts will be eroded and it is the society that would be worse for it.

f. S e c t i o n 1 7 gives public institutions a discretion to deny access to or

disclose information which contains course or research materials

prepared by faculty members; and

g. S e c t i o n 1 9 gives public institutions a discretion to deny or grant an

application for information which contains information pertaining to test

questions, scoring keys, examination data used for academic

examination, etc.

T H E P U B L I C I N T E R E S T T E S T

The provisions of Sections 11, 12, 16, 17 and 19 give public institutions

discretion to disclose or deny access to the information sought for under

those sections. This is because of the use of the phrase “may deny” which

clearly imports the exercise of discretion. In A U C H I P O L Y T E C H N I C V .

O K U O G H A E ( 2 0 0 5 ) 1 0 ( P T . 9 3 3 ) 2 7 9 @ 2 9 3 , the court held with regard to

the use of the word “may” in a statute as follows:

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“In the ordinary rule of construction of statutes containing the word “may”, the use of the word prima facie conveys that the authority which has power to do an act has an option either to do it or not to do it.”

On the other hand, the provision of Section 14 uses the phrase “must

deny”, while Section 15 uses the words “shall deny” both of which import a

command or mandatory duty not to disclose. In O G W U C H E V . M B A

( 1 9 9 4 ) 4 N W L R ( P T . 3 3 6 ) 7 5 @ 8 6 the court while stating the meaning of

the use of the word “must” in a statute held as follows:

“Must” is a word of absolute obligation…It is not merely

directory. It is naturally prima facie imperative and admits of no discretion.” (Underlining supplied for emphasis).

In A C H I N E K U V . I S H A G B A ( 1 9 8 8 ) 4 N W L R ( P T . 8 9 ) 4 1 1 @ 4 2 0 the Court

of Appeal per M a i d a m a J C A gave the following illuminating meaning

about the use of the word “shall” when used in a statute:

“The word ‘shall’ in its ordinary meaning is a word of

command and one which has always or which must be given a compulsory meaning as denoting obligation. It has a peremptory meaning, and it is generally imperative and mandatory. It has the invaluable significance of excluding the idea of discretion and the significance of operating to impose a duty may be enforced. Thus, if a statute provides that a thing “shall” be done, the natural

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and proper meaning is that the peremptory mandate is enjoined”

It is however important to note that the exemptions provided under

Sections 11, 12, 14, 15 and 19 are subject to the public interest test in that

where in any situation under any of those sections, the public interest in

disclosing the information sought outweighs whatever injury or damage

disclosure would cause, then the exemption would not apply. The B l a c k ’ s

L a w D i c t i o n a r y 6 t h E d i t i o n , defines “Public Interest” as follows:

“Something in which the public, the community at large, has some interest by which their legal rights or liabilities are affected; Interest shared by citizens generally in affairs of local, state or national government”

It however appears that the exemptions provided in Sections 16 and 17 are

not subject to the public interest test as the two sections do not contain

clauses incorporating the public interest test and no one is permitted to read

into the provision of an Act words which it does not contain and which would

work to alter its operative effect. In U . T . B ( N I G . ) L T D V . U K P A B I A & O R S

( 2 0 0 0 ) 8 N W L R ( P T 6 7 0 ) 5 7 0 @ 5 8 0 , the Court of Appeal per F a b i y i J C A

(as he then was) held inter alia thus:

“It is not proper to read into a statute what it does not expressly provide. A statute should be construed in its ordinary sense.

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It should also be noted that by the provision of Section 25 (1) (c) of the

Act, where a public institution denies an application for information, or part

thereof on the basis of a provision of the Act, the Court may order the

institution to disclose the information or part thereof to the applicant where,

it makes a finding that the interest of the public in having the record being

made available is greater and more vital than the interest being served if

the application is denied, in whatever circumstance.

The implication of the foregoing paragraph is that a decision by a public

institution not to disclose information applied for on the basis of an

exemption provided under the Act can be reversed by a court where, upon

an application for a review by a person who has been denied access to

such information, the court makes a finding that disclosure would better

serve the public good than non-disclosure of the information.

C O N S E Q U E N C E S O F D E N I A L O F A C C E S S T O I N F O R M A T I O N O R

R E F U S A L T O D I S C L O S E I N F O R M A T I O N

There are two broad consequences of refusal to disclose information

where it ought to have been disclosed. Thus Section 7(4) of the Act

defines what it means to refuse to give access to information requested

for. It provides thus:

“Where the government or public institution fails to give access to information or record applied for under this Act or part thereof within the time limit set out in this Act, the institution shall, for the purposes of this Act, be deemed to have refused to give access”

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The most significant consequence of a denial of access to information or

failure to comply with a request for information from the point of view of

members of the public is that the defaulting public officer, institution or

agency is liable to be sued by the aggrieved applicant for appropriate

judicial remedies.

Sections 1(3) and 2(6) of the Act confer on all persons entitled to a right to

information under the Act the right to institute proceedings in court to

compel any public institution to comply with the provisions right of the Act.

This however is not the end of the matter as criminal proceedings may also

be brought against the defaulting public officer or institution. Thus, Section

7(5) of the Act criminalizes wrongful denial of access to information by

providing thus:

“ W h e r e a c a s e o f w r o n g f u l d e n i a l o f a c c e s s i s e s t a b l i s h e d ,

t h e d e f a u l t i n g o f f i c e r o r i n s t i t u t i o n c o m m i t s a n o f f e n c e a n d

i s l i a b l e o n c o n v i c t i o n t o a f i n e o f N 5 0 0 , 0 0 0 . 0 0 ”

The implication of Section 7(5) of the Act is that not all denial of access to

information is wrongful in the eyes of the law. Where, for instance, a public

officer or institution denies an applicant access to information in pursuance

of a section which expressly mandates them to deny access or a section

which gives them a discretion to either give or deny access and the court

in an action for judicial review of the decision of the public officer or public

institution finds that although the public officer or institution acted under the

relevant provision of the Act to deny disclosure but nevertheless orders

disclosure on ground of overriding public interest, such a situation would

not constitute wrongful denial of information on the part of that public

officer or institution so as to warrant criminal sanction.

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A wrongful denial could however be established in a case where it is

shown that the public institution or officer did not have any valid basis for

denying access to the information sought for. A good instance would be

where the information applied for is not one covered by any of the

provisions of the Act exempting disclosure and the institution or officer to

whom the application is made deliberately denies access to the information

requested. In such a circumstance, a court could safely make a finding that

a case of wrongful denial has been established and convict.

In the light of the foregoing, public officers must therefore thread with

caution in the discharge of the duties imposed on them by this Act. While

they are enjoined and expected to act dutifully and without any fear in

discharging their responsibilities under the Act, they must also bear in mind

that any deliberate attempt to unjustly defeat, constrict or frustrate the

exercise of the right to information or defeat the laudable objectives of the

Act will be met with appropriate penalties.

C O N C L U S I O N

The role of public officers in ensuring and/or facilitating the exercise and

enjoyment of the right of access to information created by the FOI Act

cannot be over-emphasized. The extremely crucial role public officers,

particularly those who are in custody or control of information to which

members of the public have a right of access, play under the Act is

underscored by the fact they constitute a gateway to such information with

criminal and or civil liability for wrongful denial. Therefore, public officers

being crucial stake holders under the Act must discharge the duties

imposed on them by the Act faithfully and to the best of their abilities.

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Public officers, who are in charge of such information, ought to be

conscious of their role, the performance of which could promote or retard

the growth and advancement of our nascent democracy because one of

the major ingredients of true democracy is the free flow of information. It is

therefore imperative that public officers should be well conversant with the

provisions of the Act so that they would not run foul of the law. They should

also appreciate that the present legal regime is antithetical to what

obtained under the Official Secrets Act whereby almost all categories of

information were shielded from public access. Public officers must

therefore strive to conform with the letters and spirit of the Act.