FOIA Compliance for Disclosure (NG0011)

This commitment seeks to improve compliance with the FOIA mandatory publication requirements and secures the right of citizens to information.

11: Improved compliance of public institutions with the Freedom of Information Act (FOIA) with respect to the proactive disclosure provisions, stipulating mandatory publication requirements.

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

“This commitment seeks to improve compliance with the FOIA mandatory publication requirements and secure the right of citizens to information”.

Milestones:

11.1. Design and implement the publication of fully compliant information as provided in the FOI Act, regardless of platform/form by at least 200 public institutions and make it easily accessible to the public.

11.2. Punitive administrative measures to be applied against public institutions adjudged to be in breach of the mandatory publication requirements of the FOI Act.

11.3. Publish responses to recurrent FOI requests on the public platform/in the publication.

Start Date: January 2017 End Date: December 2018

Action plan is available here:

Context and Objectives

Section 2(3) of Nigeria’s 2011 Freedom of Information (FOI) Act outlines an extensive list of information that public institutions must disclose proactively. These categories include information to be listed (e.g., records under the public institution’s control); [148] information to be described (e.g., a organization and responsibilities of the institution); [149] and information to be disclosed in full (e.g., the names, salaries, titles, and dates of employment of all employees in an institution). [150] Section 2(4) states that a public institution must ensure information is “widely disseminated” through “various means,” including print, electronic, and online sources. [151]

At the time of this report, the law did not provide for specific criminal or administrative measures [152] to be applied against public institutions violating mandatory disclosure requirements, however every provision of the Act may be enforced through court proceedings. [153]

In the past, proactive disclosure compliance among Nigeria’s approximately 800 public institutions were sub-par. The Nigerian CSO, Right to Know Nigeria (R2K), has conducted several annual surveys of compliance with sections 2(3) and (4) of the FOI Act. In 2015, R2K sampled 39 public institutions (selected on the basis of their compliance with the duty to submit an annual report to the Attorney-General per section 29 of the FOI Act), and found that the average compliance rate was 9.35%, with the most compliant institution achieving 19.5%. [154] For the 2016 report, 44 institutions were sampled. More than half were “below average” in their proactive disclosure, although one, the Bureau of Public Service Reforms, was fully compliant. [155]

This commitment seeks to improve compliance with the FOI Act’s proactive disclosure requirements and ensure that basic information on government activities is readily available to citizens. This commitment proposes to:

• Design and implement publication of fully compliant information per the FOI Act by at least 200 public institutions and make it publicly accessible;
• Apply punitive administrative measures against public institutions judged to be in breach of the mandatory publication requirements; and
• Publish responses to recurrent FOI requests on the public platform/in the publication (an information category not currently mandated by the current law).

The emphasis on proactive information disclosure made this commitment relevant to the OGP value of access to information. The “punitive measures” to be applied against public institutions in breach of the mandatory publication requirements (Milestone 11.2) relate to the OGP value of public accountability, as they will require public officials to accept responsibility for not performing legal commitments.

The commitment and its milestones are all specific and measurable. For example, the number of institutions expected to be fully compliant, and the nature of that compliance (proactive information disclosure under the FOI) is clear from Milestone 11.1. Milestone 11.3 could have been more specific by stating the frequency with which responses to recurrent FOI requests should be published on the platform.

If fully implemented, this commitment would be a major step forward for proactive disclosure, and thus a transformative impact. Given that the R2K surveys of proactive disclosure found low levels of disclosure in a small sample of public institutions that were already compliant in other respects (submitting section 29 reports), extending full compliance with mandatory FOI information categories to 200 institutions (25% of the approximate total) would be a major achievement. Stakeholders in access to information believe that punitive administrative measures would improve compliance significantly, [156] as a lack of consequences for non-compliance had contributed greatly to the near total disregard for this requirement of the FOI Act. [157] According to Edetaen Ojo, Executive Director of Media Rights Agenda, the activities can significantly improve compliance with proactive disclosure. However, as the FOI did not provide for punitive administrative (or criminal) measures, the design of these measures and their basis in the legal framework needs clarification.

The commitment lacks civic engagement. It’s performance indicators include a reduction in the number of FOI requests submitted to public institutions, based on the rationale that proactive, mandatory disclosure would negate some information requests. Yet the milestones do not aim to help citizens better understand the law and the categories of the information the government must proactively publish (through leaflets, community radio programs, SMS campaigns, or workshops).

Next Steps

Future commitments in this area could include:

• Clarifying the “punitive administrative measures” under Milestone 11.2 and their legal basis i.e., it is important to say what punitive measures exist and when they would be enforced, the criteria to determine when institutions are in breach, and the level of non-response determining the status of breach;
• Ensuring that the information proactively published is regularly updated;
• Stating the frequency with which responses to recurrent FOI requests should be published on the platform;
• Creating a platform for citizens to track submitted FOIA requests; and
• Strengthening the civic engagement component of the commitment through public awareness campaigns on the proactive mandatory disclosure requirements of the FOI.

11. Improved compliance of public institutions with the Freedom of Information Act (FOIA) with respect to the Proactive disclosure provisions, stipulating mandatory publication requirements.

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

“This commitment seeks to improve compliance with the FOIA mandatory publication requirements and secure the right of citizens to information”.

Milestones:

11.1 Design and implement the publication of fully compliant information as provided in the FOI Act, regardless of platform/form by at least 200 public institutions and make it easily accessible to the public.

11.2 Punitive administrative measures to be applied against public institutions adjudged to be in breach of the mandatory publication requirements of the FOI Act.

11.3 Publish responses to recurrent FOI requests on the public platform/in the publication.

This commitment sought to improve compliance with the FOI Act’s mandatory publication requirements and to secure citizens’ right to information.

Many elements of the FOI Act remain to be fully implemented. For example, section 2(3) of Nigeria’s 2011 FOI Act outlined an extensive list of information categories that public institutions must disclose proactively. These categories included information to be listed (e.g., a list of all classes of records under the public institution’s control); ^[114] information to be described (e.g., a description of the organization and responsibilities of the institution); ^[115] and information to be disclosed in full (e.g., the names, salaries, titles, and dates of employment of all employees and officers of the institution). ^[116] Section 2(4) stated that a public institution must ensure that information should be “widely disseminated” through “various means,” including print, electronic, and online sources. ^[117]

Implementation of this commitment was limited. Less than 200 public institutions were compliant with the publication of information as stipulated in the FOI Act and no punitive administrative measure was adopted for noncompliance. ^[118] At the time of writing, the government had begun drafting punitive measures. Currently, there are only informal punitive measures in use. For example, some CSOs induct agencies into a "FOI Hall of Shame." ^[119] However, an Administrative Action Committee exists to resolve FOI compliance disputes between the government and the public. ^[120] In a positive step, the government developed Uniform Mandatory Publication Requirement Guidelines and published a compendium of recurrent FOI Requests and Answers. ^[121] A published compendium of reports was also submitted to the Attorney General of the Federation. Joseph Ichibor from the Ministry of Justice noted that this commitment was in a large part responsible for instigating the Monitoring and Evaluation Exercise, which provided the platform to improve proactive disclosure obligations. ^[122] The Bureau of Public Service Reforms reports that it introduced a scorecard ranking system for MDAs in 2017. One factor accounted for in the ranking was whether an MDA had a functional FOI portal. ^[123]

This commitment marginally changed access to information government practices. The government did not reach its goal of 200 public institutions meeting FOI Act proactive publication requirements. Additionally, punitive measures to address FOI noncompliance were not implemented. Therefore, the commitment did not improve access to information. However, the government has re-evaluated and recommitted to FOI compliance in the second action plan. Full implementation of FOI commitments in the coming action plan cycle promises transformative government changes in citizens’ access to information.