FOIA Compliance for Annual Reporting (NG0010)

This commitment seeks to enhance compliance with the FOIA provision requiring all public institutions to submit a report to the Federal Ministry of Justice on FOI requests received and responded to in any given year, by February of the following year.

10: Improved compliance of public institutions with the Freedom of Information Act (FOIA) in respect to the annual reporting obligations by public institutions and level of responses to requests

Language of the commitment as it appears in the action plan:

“This commitment seeks to enhance compliance with the provisions of the FOI Act”.

Milestones:

10.1. Awareness and sensitization campaigns for all staff of public institutions and continuous sensitization of citizens on the provisions of the FOI Act.

10.2. Training of the key staff involved in the implementation of FOI on the requirements of the law and how to create and implement a system for handling requests.

10.3. Designation of a Freedom of Information (FOI) officer/unit in each MDA and publication of their contact details.

10.4. Integrate the FOI role into the individual or group performance review of the FOI responsible individual and/or unit.

10.5. Punitive administrative measures to be adopted and applied against public institutions and officials adjudged to be undermining the effectiveness of the Act or breaching its provisions.

10.6. Each MDA should deploy an E-FOI portal, similar to the BPSR Portal or any other digital platform where citizens can make FOI requests and receive responses.

10.7. Develop and issue a practice direction to the Judiciary through the Chief Justice of Nigeria to guide the court on FOI cases.

10.8: Adoption of technology-based information systems and standards that will ensure that information is collected, collated and stored in a form that enables public officials to efficiently and effectively retrieve the required information within the 7-day time-limit for response to FOI requests as prescribed by the FOI Act.

Start Date: January 2017 End Date: June 2019

Action plan is available here:

Context and Objectives

This commitment seeks to enhance compliance with the Freedom of Information (FOI) Act of 2011. When enacted, the FOI Act represented a collaboration between CSOs, citizens, and government that many hoped would end the culture of secrecy that had cloaked government operations following decades of military rule. [127]

The FOI Act established the right of any person to access information in the custody of any public official, agency, or institution; [128] required proactive information disclosures by public institutions (see Commitment 11); [129] stipulated that a public institution must respond to information requests within seven days; [130] required public institutions to ensure proper organization and maintenance of records and train officers; [131] and obligated all public institutions to submit a report to the Attorney General on FOI requests received and responded to for that year. [132] While the FOI Act established broad exemptions and grounds for refusing access to information, it also criminalized wrongful denial of access, with a fine of N500,000. [133] The FOI law requires public institutions to identify an officer to whom information requests must be sent, [134] but does not expressly require institutions to establish an E-FOI portal.

Since its enactment however, and despite budgetary provision for the FOI Act in some MDAs, [135] compliance with the act has been very poor. For example, the International Centre for Investigative Reporting, an investigative journalism CSO, documented delays of 32 to 41 days in response time to their information requests. [136] According to Edetaen Ojo, Executive Director of the Media Rights Agenda, between 2011 to 2016, less than 10% of public institutions in Nigeria had submitted their annual reports to the Attorney-General, [137] although the compliance rate has slowly increased since. [138] According to the Bureau of Public Service Reforms, most public institutions lack a dedicated FOI Act unit staffed with trained officers, [139] and at the time of this report, only three MDAs (BPSR, NEITI, and FMoJ) are known to have e-FOI portals. [140] According to a representative from Right to Know, these three MDAs had faster response times to FOI requests than those without. [141] Academic Funmilola Omotayo argues that “there has been an increase in the number of FOI requests, where these have been denied or ignored, requesters have approached the courts and been successful in a number of cases.” [142] However, this is a time-consuming, cumbersome, and expensive solution and does not fundamentally change the entrenched culture of secrecy within government.

Omotayo has documented a variety of reasons underlying the slow implementation of the FOI Act. These include the official secrets and anti-access laws that remain in force, [143] low levels of awareness of the FOI Act among public officials and the general population, poor record-keeping and infrastructure, [144] and no provision for a Federal Information Commissioner, a position that would obviate the need for requesters to resort to the courts. [145]

The commitment’s aim to improve compliance with the FOI Act makes it relevant to the OGP value of access to information, while the e-FOI portals under Milestone 10.6 and the information systems under 10.8 made it relevant to technology and innovation. The punitive administrative measures against public institutions and officials who undermine the effectiveness of the act make this commitment also relevant to the OGP value of public accountability.

The milestones are mostly verifiable, particularly the designation of a FOI officer or unit for each MDA, development of the e-FOI portals, and the information system to ensure more efficient response to FOI requests. It should be noted, however, that Milestone 10.5 does not describe the “punitive measures” to be taken against public institutions or officials judged to be undermining the FOI Act.

This commitment has the potential to be transformative as it addresses a number of the root causes underlying noncompliance with the FOI Act. For example, Milestones 10.1, 10.2, 10.3, and 10.4 all address low levels of awareness of the FOI Act among public officials, while Milestone 10.5 incorporates a strong public accountability element. Milestone 10.1 addresses low levels of FOI Act awareness among the general public, while Milestone 10.6 will facilitate access to information requests. According to Edetaen Ojo, the commitment will provide citizens more convenient and timely access to information and reduce wasted public resources and corrupt practices. [146] Milestone 10.8 addresses the problem of poor record-keeping and infrastructure, while Milestone 10.7 aims to build judicial capacity in FOI cases. The development and issuance of a practice direction (10.7) could expedite adjudication of FOI cases. At the moment of this report, FOI cases were treated like other routine court processes, spanning several months or years. The practice direction could define “summary adjudication” and provide a framework for obtaining the summary adjudication. There is draft practice direction for judges on FOI cases, but it has not been approved or adopted by the appropriate authorities. [147] The impact of the commitment would be even greater if the problem of official secrets and other anti-access laws was directly addressed, and if it recognized the need for a Federal Information Commissioner.

Next Steps

Future commitments in this area could include:

• A mechanism for citizens to hold public officials accountable if they are denied a FOIA request without explanation;
• Focusing on citizen education to demand information; and
• Addressing the Official Secrets Act and other anti-access laws and consider the value of establishing a Federal Information Commissioner.
• A draft practice direction for judges on FOI cases to be approved or adopted by relevant authorities; and
• Provide more specific and detailed information to the public, for instance, an explanation of how the government envisions educating citizens on the provisions of the FOI Act (Milestone 10.1), the names of the entities responsible for prosecuting public officials and evaluating standards (Milestone 10.5), as well as the deadlines and details of the E-FOI portal (Milestone 10.6).

10. Improved compliance of public institutions with the Freedom of Information Act (FOIA) in respect to the annual reporting obligations by public institutions and level of responses to requests

Language of the commitment as it appears in the action plan:

“This commitment seeks to enhance compliance with the provisions of the FOI Act”.

Milestones:

10.1 Awareness and sensitization campaigns for all staff of public institutions and continuous sensitization of citizens on the provisions of the FOI Act.

10.2 Training of the key staff involved in the implementation of FOI on the requirements of the law and how to create and implement a system for handling requests.

10.3 Designation of a Freedom of Information (FOI) officer/unit in each MDA and publication of their contact details.

10.4 Integrate the FOI role into the individual or group performance review of the FOI responsible individual and/or unit.

10.5 Punitive administrative measures to be adopted and applied against public institutions and officials adjudged to be undermining the effectiveness of the Act or breaching its provisions.

10.6 Each MDA should deploy an E-FOI portal, similar to the BPSR Portal or any other digital platform where citizens can make FOI requests and receive responses.

10.7 Develop and issue a practice direction to the Judiciary through the Chief Justice of Nigeria to guide the court on FOI cases.

10.8 Adoption of technology-based information systems and standards that will ensure that information is collected, collated and stored in a form that enables public officials to efficiently and effectively retrieve the required information within the 7-day time-limit for response to FOI requests as prescribed by the FOI Act.

This commitment sought to enhance compliance with the key provisions of the Freedom of Information (FOI) Act, 2011.

When enacted in 2011, the FOI Act represented a collaboration between civil society, citizens, and government that many hoped would transform the culture of secrecy that cloaked government operations in Nigeria following decades of military rule. ^[93] However, compliance with the Act was very poor despite budgetary provision for FOI in some MDAs. ^[94] For example, the CSO, International Centre for Investigative Reporting, documented delays of 32−41 days in response time to their information requests. ^[95] The report further stated most public institutions lacked a dedicated FOI Act Unit staffed with trained officers ^[96] and only three MDAs (BPSR, NEITI, and FMoJ) were known to have e-FOI portals. ^[97]

The two main results from this commitment by the end of the implementation period were the creation of e-FOI portals in 10 MDAs ^[98] and the training of 136 FOI Desk Officers. ^[99] These accomplishments are a positive step toward a comprehensive FOI system. However, they are not sufficient in isolation to address the underlying challenges to FOI compliance. Admirably, the government has acknowledged this need. This commitment has been carried forward into the next action plan with a greater focus on record management. Addressing the need for standardized electronic record management and budget provisions for FOI compliance in the next action plan promises to address underlying challenges to implementing the FOI Act. ^[100]

At the time of writing this report, over 10 MDAs have e-FOI portals. ^[101] These e-FOI portals were a result of the OGP Access to Information Workgroup and MDAs' enactment of the FOI Act Implementation and Compliance Monitoring and Evaluation exercise. ^[102] According to Joseph Gowon Ichibor from the FOI Unit at the Ministry of Justice, an additional five MDAs have ongoing e-FOI portal projects that are yet to be hosted. ^[103] However, as noted in Nigeria’s 2017−2019 Design Report, e-FOI portals are “a time-consuming, cumbersome, and expensive solution [that do] not fundamentally change the entrenched culture of secrecy within government.” ^[104] While the government developed guidance for courts on FOI Cases, it was not submitted by the end of the implementation period. ^[105] The memo on punitive and administrative procedures for violation of the FOI is also still pending. ^[106]

Implementation of this commitment was therefore limited. Notably, there was a record number of trainings for public institutions and officials on the provisions of FOI Act, which led to the designation of 136 FOI Desk Officers. ^[107] The Attorney General of the Federation FOI Compliance Report for 2017 reported a total of 106 agencies with FOI Desk Officers, with an increase in the 2019 Report. According to Ichibor, the designation of FOI Desk Officers in some agencies improved compliance as there was now a responsible actor for FOI determinations and processing oral complaints. ^[108] The FOI Unit in the Ministry of Justice also carried out sensitization workshops with several MDAs. ^[109] Additionally, CSOs like Media Rights Agenda, BudgIT, and PPDC engaged citizens on the FOI Act through radio. Despite improvement, most agencies still lack FOI Units within their departments. As of November 2018, only 130 out of 900 MDAs (14%) had relevant officers assigned. ^[110]

This commitment marginally changed access to information government practices. The government's establishment of e-portals has facilitated quick reply to FOI requests in several agencies. ^[111] This can be confirmed in the performance of the MDAs with e-FOI portals in the FOI ranking. ^[112] Yet the number of e-portals and Desk Officers is a small fraction of what is needed for comprehensive FOI compliance given that the Nigerian government is composed of hundreds of MDAs. ^[113] This commitment will be carried over into the next action plan cycle, presenting the government with the opportunity to vastly expand FOI compliance and e-portals across MDAs. Most importantly, the second NAP’s focus on record management, enforcement, and budget allocation will address critical obstacles to FOI compliance.