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Nigeria

FOIA Compliance for Disclosure (NG0011)

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 Communication Technology, National Information Technology Development Agency, National Orientation Agency, Ministry of Information, Nigerian Television Authority, Federal Radio Corporation of Nigeria, National Judicial Council, Office of the Head of Civil Service of the Federation, Office of the Secretary to the Government of the Federation, National Assembly. Freedom of Information Coalition, Nigerian Bar Association, Nigerian Union of Journalists, Ethics and Compliance Institute, Academia, Open Judiciary Initiative, Media Rights Agenda, Lawyers Alert, Connected Development

Policy Areas

Access to Information, E-Government, Fiscal Openness, Publication of Budget/Fiscal Information, Right to Information

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

Potential Impact:

Implementation i

Completion:

Description

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

IRM Midterm Status Summary

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.
[148] Edetaen Ojo (civil society co-chair, OGP/Executive Director, Media Rights Agenda), interview by IRM researcher, 19 Nov. 2018.
[149] Id. §2(3)(a).
[150] Id. §2(3)(c)(vi).
[151] Id. §2(4).
[152] Criminal measures would involve state prosecution and the involvement of the judiciary. Punitive administrative measures, on the other hand, involve measures imposed by the executive only; the national prosecution system is not invoked.
[153] Freedom of Information Act, §1(3).
[154] Right2Know, Proactive Disclosure Assessment Report (2015) 31, http://r2knigeria.org/index.php/foi-assessments-reports/2011-2015.
[155] Right2Know, Nigeria’s Freedom of Information Act, 2011: Compliance Assessment Report (2016) 22–23, http://r2knigeria.org/index.php/foi-assessments-reports/2016.
[156] Victoria Etim, (Program Officer, R2K), interview by IRM researcher, 5 Mar. 2019.
[157] Ojo, interview.

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