Improved Compliance with Mandatory Publication Provisions Requirement (FOIA) (NG0024)

Brief description:
This commitment seeks to enhance compliance with the FOIA mandatory publication requirements by Public Institutions to proactively disclose information to the public, submit annual reports to AGF on FOI requests received and responded to in any given year by 1st February of the following year, and improve their responsiveness to requests from the public for information under the FOIA.

General problem:
1. Low awareness, skills and knowledge of the FOIA provisions and processes by citizens and public servants
2. Lack of designated officers responsible for Freedom of Information in most public institutions
3. Lack of sanctions against public institutions and FOI responsible officers who do not respond to FOI requests or/and report to AGF annually.
4. Inadequate number of the public institution having FOI Portals
5. Few public institutions are submitting their annual reports to the AGF.
6. Lack of infrastructure to support digital collection and management of information to facilitate timely retrieval of information requested for

Specific OGP issue:
1. Members of the public’s participation in governance through the utilization of FOIA
2. Lack of transparency and accountability in government affairs and activities

Rationale for commitment:
There is currently a high level of non-compliance regarding proactive disclosure, responses to FOI requests and annual reporting obligations of public institutions on these requests and their status, and this situation affects public trust in the government which ultimately promotes corruption as information is hidden from public view and interrogation

Main objective:
To promote and actualize the right of citizens to request and receive information about how they are governed and how their country’s resources are utilized.

Anticipated impact:
Improved compliance on the provisions of the FOI Act

10. Improve FOIA compliance on mandatory publication provisions requirement, annual reporting obligations to AGF, and response to FOI requests

Main Objective

“To promote and actualize the right of citizens to request and receive information about how they are governed and how their country’s resources are utilized.”

Milestones

1. Identification of MDAs that are yet to designate Freedom of Information (FOI) Desk Officers
2. Designation of 350 Freedom of Information (FOI) Desk Officer in public institutions identified in (2) above and publication of their contact details
3. Training of the designated staff in 2 above and other staff of public institutions involved in the implementation of FOIA
4. Integration of the FOI role into the individual or group performance review of the FOI responsible individual and/or unit in public institutions
5. Adoption and application of punitive administrative measures against public institutions and officials adjudged to be undermining the effectiveness of the Act or breaching its provisions
6. Deployment of an E-FOI portal, or any other digital platform where citizens can make FOI requests and receive responses, in at least 150 public institutions
7. Adoption and implementation of Practice Direction to the Judiciary through the Chief Justice of Nigeria to guide the court on FOI cases
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 FOIA

Editorial Note: For the complete text of this commitment, please see Nigeria’s action plan at https://www.opengovpartnership.org/documents/nigeria-action-plan-2019-2021/

Commitment Analysis

This commitment’s goal is to enhance the government’s capacity to comply with the Freedom of Information (FOI) Act. It intends to encourage the proactive release of information, response to information requests, and submission of reports to the attorney general of the Federation. This commitment builds on Commitment 10 of Nigeria’s 2017–2019 national action plan.

This commitment includes eight milestones. Four activities carried from the previous action plan intend to designate, train, and evaluate FOI desk officers in public institutions; publish their contact details; enable electronic submission of FOI requests; and promote proper collection and storage of data – which would make it easier to retrieve information within the time lines defined by the law. Another important milestone aims to introduce accountability mechanisms in cases of noncompliance with the release of information. This commitment is relevant to the OGP value of access to information, as it envisions various measures to ensure implementation of the FOI Act. The commitment is also relevant to the OGP value of public accountability, as it seeks to adopt and apply punitive administrative measures against officials who fail to comply with the FOI Act.

If implemented fully, this commitment could have a transformative potential impact on increasing public institutions’ (MDAs) compliance with the FOI Act. Increasing the number of MDAs with designated FOI officers could play an important role. Most agencies still lack FOI units within their departments. ^[134] As of November 2018, only 130 out of 900 MDAs (14%) had relevant officers assigned. ^[135] The commitment’s goal of 350 desk officers would double the current number.

Additionally, electronic portals for submission of FOI requests would ease the process of requesting information. Previously, information requests have been largely paper based. The administrative procedures coupled with a paper-based records management system have contributed to MDAs’ difficulties with meeting the seven-day limit for releasing requested information. As of May 2020, only 11 MDAs had e-FOI portals, and only five were in the process of building portals, ^[136] meaning that the commitment’s goal of 150 public institutions with e-portals would represent substantial progress.

Moreover, the commitment foresees two milestones (5 and 7) with accountability measures for noncompliance, which could create an incentive for higher compliance to the law. However, the action plan does not clarify what these accountability measures would include and how they could be applied. Currently, the compliance rate among 900 MDAs is less than 10% according to the research conducted by the CSO, the International Centre for Investigative Reporting (ICIR). Under the previous action plan, the government developed a practice direction to guide courts on FOI Cases, which had not been submitted to the judiciary by the beginning of the current action plan. ^[137]

Given the number of MDAs engaged in this commitment, the IRM recommends establishing coordination and communication across relevant units with a consistent message and approach to implementation of FOI rules, drawing on examples of MDAs that have gone further in compliance with the FOI Act.

• The Bureau of Public Service Reforms could engage in annual monitoring of MDAs’ compliance with the FOI Act and publish information about MDAs that do not meet the requirements.
• Allocation of sufficient funding would be essential to properly resource MDAs and meet personnel training and technology needs to handle information requests.

Commitment 10. Improve FOIA compliance on mandatory publication provisions requirement, annual reporting obligations to AGF, and response to FOI requests

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential Impact: Transformative

● Completion: Limited

● Did it open government? Marginal

Context and Objectives

This commitment aimed to enhance compliance with Freedom of Information Act (FOIA) requirements for public institutions to proactively disclose information and improve responsiveness to public requests for information. [175] It is expected that MDAs’ proactive disclosure of information will reduce FOIA requests from the public, empower citizens to effectively engage with the government, and create demand for better services.

Nigerian open government reformers have ensured that implementation of the 2011 FOIA has been included across OGP action plans. Milestones not completed in the 2019 action plan were carried over in this commitment. This iteration was evaluated as having a transformative potential to strengthen Nigerians’ access to information and accountability for noncompliant public officials. [176] This reform is continued in Nigeria’s 2023 OGP action plan under Commitments 6 and 7. [177]

Did It Open Government? Marginal

The Government of Nigeria and civil society partners made marginal progress in strengthening citizens’ access to information during the implementation period. There was an incremental increase in the number of MDAs who have FOI desk officers, FOI portals and who proactively disclose information and submit annual FOI reports to the attorney general of the Federation, as required under FOIA. However, the public still lacks a clear mechanism they can use to request information from the majority of MDAs in Nigeria. Two of the commitment’s activities with the greatest potential to increase access to information were not finalized. These were adopting sanctions for public officials’ noncompliance with FOIA and rules for the judiciary to efficiently process FOI cases. An absence of current public information on the number of FOI desk officers, FOI portals, and related information presented a challenge to analyze these commitments. [178]

The MoJ aimed to coordinate, support, and expand the work of FOI desk officers across MDAs to advance FOI implementation. By 2021, the MoJ received around 150 MDA responses to their request for the contact information of FOI desk officers. The MoJ created a database of this contact information (Milestones 1 and 2). However, the latest database is not available online and many MDAs continue to lack dedicated FOI staff. [179] The MoJ and civil society partners continued to provide training to FOI desk officers (Milestone 3). This training includes yearly roundtables and quarterly interfaces with FOI Desk Officers to support their efforts and capacity. [180] The MoJ and partners held trainings across MDAs and established an internal portal where officers, the MoJ, and civil society experts can exchange knowledge and experiences. [181]

The number of MDAs with FOI portals that the public can use to request information increased slightly during the implementation period (Milestones 6 and 8). The commitment aimed to have 150 institutions with a FOI portal by 2022. In 2020, 11 MDAs had a FOI portal and 5 were in development. [182] By July 2022, 19 MDAs had FOI portals, according to OGP National Steering Committee notes. It was also noted that very few MDA websites proactively publish information. [183] Nigeria’s 2023–2035 OGP action plan commits to having 300 MDAs with the ‘structures’ to implement FOI and records management policies. [184]

The 2022 National FOI Ranking indicates improvements in the levels of proactive disclosure and responsiveness to FOI requests. The number of MDAs with full disclosure increased from 2 in 2020 to 20 in 2022, whereas partial disclosure grew from 16 in 2020 to 43 in 2022. [185] In the same vein, those with ‘no disclosure’ decreased from 195 in 2020 to 187 in 2022. [186] Level of responsiveness also improved within action plan’s implementation period. Between 2020 and 2021, the number of responses within seven days of request jumped by 117, and between 2021 and 2022 it increased by an additional 46%. [187] The report showed that there was an overall improvement in the timeliness of MDA responses. The MoJ reported that 66 MDAs responded to FOI requests in 2021. [188]

The number of MDAs that submit annual FOI reports to the MoJ also increased slightly over the years. However, the government fell short of the benchmark of 200 compliant MDAs, as outlined in the commitment. The latest information was a 2019 report that stated 89 public institutions submitted reports to the MoJ. This marks a slight improvement from previous years’ submissions: 2011 (16), 2012 (32), 2013 (51), 2014 (60), 2015 (44), 2016 (54), 2017 (73), and 2018 (70). [189] The MoJ has increased their goal to have at least 300 MDAs submit annual FOI reports to the attorney general of the Federation in the next action plan. [190]

The government drafted guidelines for administrative sanctions and FOI enforcement and for FOI desk officer training. The IRM did not find evidence that the guidelines had been adopted or that enforcement had started during the implementation period (Milestone 5). [191] Under Commitment 6 in the 2023 action plan, the federal government aims to apply administrative measures in line with the Public Service Rules against public institutions and officials adjudged to be undermining effective implementation of the Act. [192] In the meantime, CSOs have sought to incentivize MDA compliance. In 2021, Media Rights Agency and International Press Center recognized individuals and MDAs that have championed FOIA in marking its 10-year anniversary. [193] The organizations also inducted noncompliant MDAs into a FOI ‘hall of shame.’ [194]

The IRM did not find evidence of the government’s adoption and implementation of a practice direction to guide the judicial system on FOI cases (Milestone 7). In 2018, civil society group Media Rights Agenda and the Nigeria OGP Access to Information Working Group gathered a team of experts to develop FOI enforcement procedure rules. One such rule aimed to operationalize the component of FOIA that requires FOI cases to be heard and determined summarily, thereby facilitating speedy resolution. [195] As of 2021, this rule had not been adopted. The IRM also did not receive evidence on whether FOI obligations had been incorporated into individual and group performance reviews within responsible institutions (Milestone 4).

Public access to government-held information has gradually increased in the decade since FOIA was passed. The ability of Nigerian media to access information through FOI requests is one indicator of the extent of implementation of the Act. A journalist with the Center for Journalism Innovation and Development stated that her organization placed 2,500 requests for information on disbursements to federal and state governments. She highlighted that a lack of domestication of FOI at the subnational level is a barrier to comprehensive compliance. Nevertheless, her organization used the information obtained to prepare reports on Zonal Intervention Projects and other projects contained in the budget. [196] Another journalist noted that the information obtained from FOI requests were transformed into infographics and images for public consumption. [197] The contributions of media and civil society to the progress recorded in the operationalization of FOI was acknowledged by Joshua Olufemi of Dataphyte who also stated that there is a need for improvement in the level of MDA compliance. [198] Critically, a lack of current and verified government information and data presented a challenge to journalists looking to cover the 2023 presidential elections in Nigeria. [199]

Looking Ahead

The Government of Nigeria’s ongoing commitment to access to information is demonstrated by its continuous efforts within the OGP platform. However, a lack of financial and human resources is an obstacle to standardizing FOI implementation across government. The Bureau of Public Service Reform, MoJ, National Orientation Agency, and other partners implementing the right to information should prioritize standardizing rules and procedures across government. Specifically, FOI champions should prioritize the implementation of sanctions for public officials or institutions who do not comply with FOIA. These efforts could start with high-priority MDAs with low levels of compliance. Nigerian reformers have highlighted the need for the National Assembly to clearly state that FOI applies to states and for ‘public interest’ to be clearly defined to reduce MDAs’ hesitancy to publish information. [200] Reformers can also prioritize activities that facilitate the ease of MDA compliance. For example, the government could provide template FOI web pages, portals, and record-keeping systems that MDAs can easily adopt. Reformers can also provide concrete and specific guidance on MDAs’ budget allocations to FOI compliance, to reduce the decision-making burden on MDAs.