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Nigeria

FOIA Compliance for Annual Reporting (NG0010)

Overview

At-a-Glance

Action Plan: Nigeria National Action Plan 2017-2019

Action Plan Cycle: 2017

Status: Inactive

Institutions

Lead Institution: Federal Ministry of Justice

Support Institution(s): Ministry of Communications Technology, National Information Technology Development Agency, National Orientation Agency, Ministry of Information, Nigerian Television Authority, Federal Radio Corporation of Nigeria, National Judicial Council, National Assembly, News Agency of Nigeria, National Universities Commission, National Board for Technical Education. Freedom of Information Coalition, Nigerian Bar Association, Nigerian Union of Journalists, Ethics and Compliance Institute, Academia, Open Judiciary Initiative, Private Media Outlets, Paradigm Leadership Support Initiative, Media Rights Agenda

Policy Areas

Access to Information, Capacity Building, E-Government, Judiciary, Justice, Public Participation, Records Management, Right to Information, Social Accountability

IRM Review

IRM Report: Nigeria Implementation Report 2017-2019, Nigeria Design Report 2017-2019

Starred: No

Early Results: Marginal

Design i

Verifiable: Yes

Relevant to OGP Values: Access to Information , Public Accountability , Technology

Potential Impact:

Implementation i

Completion:

Description

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.

IRM Midterm Status Summary

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).
[127] Bureau of Public Service Reforms A Policy Brief: Policy Recommendations for Strengthening the Implementation of the Freedom of Information Act in the Nigeria Federal Public Service (Dec. 2018) 5; Funmilola Olubunmi Omotayo, “The Nigeria Freedom of Information Law: Progress, implementation challenges and prospects” (Library Philosophy and Practice, 2015) 1, 4, https://digitalcommons.unl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3192&context=libphilprac.
[128] Laws of the Federation of Nigeria, Freedom of Information Act §1, http://lawnigeria.com/LawsoftheFederation/FREEDOM-OF-INFORMATION-ACT,-2011.html.
[129] Id. § 2.
[130] Id. §4 and 5.
[131] Id. §9(2) and 13.
[132] Id. §29.
[133] Id. §7(5).
[134] Id. §2(3)(f).
[135] Damilola Ojetunde, “Despite N514 million budget in 6 years, public institutions still ignore FOI requests” (International Centre for Investigative Reporting, 2 May 2018), https://www.icirnigeria.org/despite-n514-million-budget-in-6-years-public-institutions-still-ignore-foi-requests/.
[136] Bureau of Public Service Reforms, A Policy Brief: Policy Recommendations for Strengthening the Implementation of the Freedom of Information Act in the Nigeria Federal Public Service (Dec. 2018) 6.
[137] Edetaen Ojo (civil society co-chair, OGP/Executive Director, Media Rights Agenda), interview by IRM researcher, 19 Nov. 2018.
[138] Benjamin Okolo, (FOI Unit, FMoJ) pointed out that in 2015, out of over 800 public institutions in Nigeria, only 44 submitted an annual report, while in 2016, 64 MDAs did so. The highest number of compliant MDAs was achieved in 2017, when 73 MDAs submitted their annual reports. Interview by IRM researcher, 5 Mar. 2019; Damilola Ojetunde, “Only 73 out of 900 public institutions submitted their 2017 FOI annual report” (ICIR, 12 Oct. 2018), https://www.icirnigeria.org/only-73-out-of-900-public-institutions-submitted-their-2017-foi-annual-report/.
[139] Bureau of Public Service Reforms, 40.
[140] The BPSR’s FOI Portal is available at http://www.bpsr.gov.ng/index.php/publications/external-resources/foi-act; see also Right2Know, “NEITI unveils FOI portal” (31 Jan. 2017), http://r2knigeria.org/index.php/8-frontpage/142-neiti-unveils-foi-portal; and Right2Know, “Right to Know (R2K), Nigeria and the Federal Ministry of Justice (FMoJ) unveil a freedom of information web portal”(3 Aug. 2017), http://r2knigeria.org/index.php/media-r2k/press-release/144-right-to-know-r2k-nigeria-and-the-federal-ministry-of-justice-fmoj-unveil-a-freedom-of-information-web-portal.
[141] Victoria Etim (Program Officer, R2K, Nigeria), interview by IRM researcher, 5 Mar. 2019.
[142] See the cases cited in Omotayo, “The Nigeria Freedom of Information Law: Progress, implementation challenges and prospects,”1, 7–8.
[143] The Official Secrets Act, 1911, makes if an offense for public servants to give out government information or anyone to reproduce that information. Anti-access legal provisions can also be found in the Criminal Code, the Penal Code, and the Public Complaints Commission.
[144] Omotayo notes that records in public institutions in Nigeria are still largely paper-based and stacked in bundles and files. A “majority” of the documents containing information have been eaten by insects or rodents. “The Nigeria Freedom of Information Law: Progress, implementation challenges and prospects,” 10.
[145] Omotayo, 9–10.
[146] Ojo, interview.

IRM End of Term Status Summary

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.

IRM Design Report Assessment

IRM Implementation Report Assessment

●        Verifiable: Yes

●        Relevant: Yes

o   Access to Information, Public Accountability, Technology and Innovation for Participation and Accountability

●        Potential impact: Transformative

●        Completion: Limited

●        Did it Open Government? Marginal

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.

[93] Bureau of Public Service Reforms, A Policy Brief: Policy Recommendations for Strengthening the Implementation of the Freedom of Information Act in the Nigeria Federal Public Service (Dec. 2018) 5; Funmilola Olubunmi Omotayo “The Nigeria Freedom of Information Law: Progress, implementation challenges and prospects” Library Philosophy and Practice (6 Jan. 2015) 1 and 4, https://digitalcommons.unl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3192&context=libphilprac
[94] Damilola Ojetunde “Despite N514 million budget in 6 years, public institutions still ignore FOI requests” (International Centre for Investigative Reporting, 2 May 2018), https://www.icirnigeria.org/despite-n514-million-budget-in-6-years-public-institutions-still-ignore-foi-requests/
[95] Bureau of Public Service Reforms, A Policy Brief: Policy Recommendations for Strengthening the Implementation of the Freedom of Information Act at 6.
[96] Id. at 40.
[97] The BPSR’s FOI Portal is available at http://www.bpsr.gov.ng/index.php/publications/external-resources/foi-act; see also Right2Know, “NEITI unveils FOI portal” (31 Jan. 2017), http://r2knigeria.org/index.php/8-frontpage/142-neiti-unveils-foi-portal; and Right2Know, “Right to Know (R2K), Nigeria and the Federal Ministry of Justice (FMoJ) unveil a freedom of information web portal” (3 Aug. 2017), http://r2knigeria.org/index.php/media-r2k/press-release/144-right-to-know-r2k-nigeria-and-the-federal-ministry-of-justice-fmoj-unveil-a-freedom-of-information-web-portal
[98] Joseph Gowon Ichibor (FOI Unit, FMoJ), interview by IRM researcher, 20 Mar. 2020.
[99] Ministry of Justice, "2nd Batch Contract Details of Freedom of Information (FOI) Desk Officers in Public Institutions in Nigeria" https://www.justice.gov.ng/foia/images/CONTACT_DETAILS_VOLUME_2.pdf; “Contact Details of Freedom of Information (FOI) Desk Officers in Public Institutions” https://www.justice.gov.ng/foia/images/CONTACT_DETAILS_OF_ALL_FREEDOM_OF_INFORMATION_UPDATED_WITH_COVER_PAGE.pdf
[100] Independent Reporting Mechanism (IRM): Nigeria Design Report 2019–2021 (OGP, 2020), https://www.opengovpartnership.org/documents/nigeria-design-report-2019-2021/
[101] Joseph Gowon Ichibor (FOI Unit, FMoJ), interview by IRM researcher, 20 Mar. 2020.
[102] Ichibor, interview by IRM researcher, May 2020.
[103] Ichibor, interview, May 2020. These MDAs are: Federal Inland Revenue Service, National Deposit Insurance Commission, Independent National Electoral Commission, Federal Road Safety Corp, and Office of the Head of Civil Service of the Federation.
[104] Ann Iyonu, Independent Reporting Mechanism (IRM): Nigeria Design Report 2017–2019 (OGP, 6 Mar. 2020) 8, https://www.opengovpartnership.org/documents/nigeria-design-report-2017-2019/.  
[105] Edetaen Ojo (Executive director, MRA), interview by IRM researcher, Mar. 2020.
[106] Federal Republic of Nigeria, OGP Nigeria National Action Plan II (2019 - 2021) (OGP, 20 Jan. 2020), https://www.opengovpartnership.org/documents/nigeria-action-plan-2019-2021/.
[107] “2nd Batch Contract Details of Freedom of Information (FOI) Desk Officers in Public Institutions in Nigeria;” “Contact Details of Freedom of Information (FOI) Desk Officers in Public Institutions.”   
[108] Ichibor, interview, May 2020.
[109] Joseph Gowon Ichibor (FOI Unit, FMoJ), interview by IRM researcher, Aug. 2020.
[110] Policy Alert, “Freedom of Information (FOI) Act 2011 Training for MDAs” (4 Oct. 2019), https://policyalert.org/freedom-of-information-foi-act-2011-training-for-mdas/; Bureau of Public Service Reforms, The Presidency, Government of Nigeria, “Policy Recommendations for strengthening the Implementation of the Freedom of Information Act in the Nigeria Federal Public Service” (R2K, McArthur Foundation, Dec. 2018) 21, http://r2knigeria.org/index.php/policy-recommendations-for-strengthening-the-implementation-of-the-freedom-of-information-act-in-the-nigeria-federal-public-service.
[111] Victoria Etim (Program Officer, R2K), interview by IRM researcher.
[112] Public & Private Development Centre, “2018 Freedom of Information Ranking” (2018), http://procurementmonitor.org/foi-ranking/home/rank2018
[113] Ibadan Rotimi Agboluaje, “Merging of MDAs in best interest of Nigeria” (The Guardian, 2 May 2020), https://guardian.ng/news/merging-of-mdas-in-best-interest-of-nigeria/.

Commitments

  1. Participatory Budgeting

    NG0015, 2019, Anti-Corruption

  2. Implement Open Contracting and the Open Contracting Data Standard

    NG0016, 2019, Access to Information

  3. Transparent Tax Revenue Reporting

    NG0017, 2019, Access to Information

  4. Open Contracting and Licensing in Extractives

    NG0018, 2019, Access to Information

  5. Implement EITI Standard

    NG0019, 2019, Anti-Corruption

  6. Establish Beneficial Ownership Registry

    NG0020, 2019, Access to Information

  7. Strengthen Asset Recovery Legislation

    NG0021, 2019, Anti-Corruption

  8. Implement National Anti-Corruption Strategy

    NG0022, 2019, Anti-Corruption

  9. Improve Compliance with Freedom of Information Act with Focus on Records Management

    NG0023, 2019, Access to Information

  10. Improved Compliance with Mandatory Publication Provisions Requirement (FOIA)

    NG0024, 2019, Access to Information

  11. Implement Permanent Dialogue Mechanism

    NG0025, 2019, Access to Justice

  12. Aggregate Citizens' Feedback on Programs

    NG0026, 2019, E-Government

  13. Freedom of Association, Assembly, and Expression

    NG0027, 2019, Civic Space

  14. Enhance Participation of the Vulnerable

    NG0028, 2019, Capacity Building

  15. Implement New Computer Program in 6 Government Ministries to Improve Service Delivery

    NG0029, 2019, Capacity Building

  16. Legal Instrument to Strengthen SERVICOM

    NG0030, 2019, Legislation & Regulation

  17. Citizen Participation in Budget Cycle

    NG0001, 2017, Access to Information

  18. Open Contracting

    NG0002, 2017, Access to Information

  19. Extractive Sector Transparency

    NG0003, 2017, Access to Information

  20. Tax Reporting Standards

    NG0004, 2017, Fiscal Openness

  21. World Bank Doing Business Index

    NG0005, 2017, Fiscal Openness

  22. Beneficial Ownership Register

    NG0006, 2017, Anti-Corruption

  23. Anti-Corruption Informationi Sharing

    NG0007, 2017, Anti-Corruption

  24. Asset Recovery Legislation

    NG0008, 2017, Capacity Building

  25. Anti-Corruption Activity Coordination

    NG0009, 2017, Anti-Corruption

  26. FOIA Compliance for Annual Reporting

    NG0010, 2017, Access to Information

  27. FOIA Compliance for Disclosure

    NG0011, 2017, Access to Information

  28. Permanent Dialogue Mechanism

    NG0012, 2017, Fiscal Openness

  29. Joint Governmnet-Civil Society Legislation Review

    NG0013, 2017, Fiscal Openness

  30. Technology-Based Citizens' Feedback

    NG0014, 2017, E-Government

Open Government Partnership