LEGAL ISSUES, ETHICAL VALUES/OATH OF SECRECY IN ORGANIZATIONS AND FIRMS VIS--VIS FREEDOM OF INFORMATION ACT IN NIGERIA WITH REFERENCES.

INTRODUCTION Official secrecy has been a cloak behind which justice has been denied generations of Nigerians and behind which fraud and other terrible crimes have been er etuated against our eo le! The "uestion is# what constitutes ublic interest$ %hen should information be withheld in order to rotect the ublic good$ The story of shell&s to'ic dum in O(oro) Delta *tate rightly comes to mind# *+DC)

through her agents) *chlumberger Dowell) ferried , million liters of sus ected to'ic substances in -. tanks and injected these into a ,/)... dee dry well at 0ocation 1) Ibo Bush) 2rovie 3uarters in the Isoko oil field! This activity was allegedly carried out between ,!.. and 1!.. a!m! from ,45 6uly ,777!The community was sus icious because they knew it was not in *hell&s known character to conduct its o erations in the dead of the night! They were also not aware that *hell had such ointed interest in dry wells! The community demanded to know what sort of substances was injected into their soil! They wanted to know about the huge "uantities s illed on the surface of their earth! They wanted to know if their safety had not been jeo ardi(ed! They wanted to know if it was safe for them to continue to use nearby contaminated lands and water bodies! They dreaded a re eat of the 8O8O incident in their own backyard) but *hell did not give out any information) rather they bluffed it out! %hile the community they found that 9the high eo le were ressing their demands for information) owered injector and com ressor used to inject the

chemicals into the well were dismantled and taken out of the site by *hell!: ;2R< =ield Re ort > 1? of ?@th 6uly ,777 titled To'ic %aste in O(oro!A If an instrument such as the =OI< had been in lace by the time of this evil assault) the eo le would have had a stronger voice in demanding for information concerning activities of government as well as their collaborating TNCs in their environment! Blocked information access has fuelled the arrogance of destructive eo le) cor orations and governments!

%C<T R2<00D I* =R22DOE O= IN=ORE<TION$ F =reedom of Information is defined as the right of the ress to ublish without being ress subjected to intimidation) threat) molestation or blackmail! This freedom is an essential ingredient of democratic culture and the higher the degree of freedom allowed in any country) the better the degree of democracy its citi(ens enjoy as gain of democracy and freedom of e' ression! +ublic interest is clearly the right of the eo le to information on activities in their environment as every activity carried out in their environment affects their chances to survive and live in the best way ossible! *ection 17;,A of the ,777 Constitution of Nigeria guarantees freedom of e' ression as a fundamental right! This right is also guaranteed under the United Nations Declaration of Cuman Rights and other international human rights instruments! +rovisions are also made in the Constitution and the res ective International Instruments for restriction to) and derogation from this right! =reedom of e' ression is one of the fundamental rights) which are universally recogni(ed and rotected! The Nigerian constitution e' ressly rovides for the rotection of this right because of its im ortance and relevance to the enhancement of ersonal liberty and democracy! The right to freedom of e' ression is also rotected under the Universal Declaration of Cuman Rights and the various regional Instruments and Conventions on human rights) including the <frican Charter on Cuman and +eo les Rights! Obligations and duties are im osed on the *tate or its agencies and on individuals to rotect and romote human rights and fundamental freedoms! Cowever) the right to freedom of e' ression) like most other rights) is not absolute! There are recogni(ed restrictions and e'ce tions to this rightG one of which is to be found in the law of defamation! Thus) the enjoyment of the right to freedom of e' ression must take into consideration the right of other citi(ens to rotect their re utation!

This

is

the

balance

which

the

=reedom

of

Information

<ct

through

its

im lementation aims to achieve!The <ct is to make more freely available) roject interest and the rovide for ublic access to ersonal

ublic records and information ublic records and information) ublic ublic rotects serving

ublic records and information to the e'tent consistent with the rotection of rivacy! It also

officers from adverse conse"uences for disclosing certain kinds of official information without authori(ation and establishes of those ur ose and related rocedures for the achievement ur ose thereof! The =reedom of Information <ct

made it clear on how information records can be obtained such as right to access records and a lication for access to records! But the "uestion to ask here is) from the ince tion of the =OI<) has it been able to achieve that balance$ This a er aims at e'amining the legal and ethical issues involved in im lementing utting into consideration the secrecy involved in

the freedom of information act and its im lications on the administration of offices) firms and cor orate organi(ation much consideration to can be safely said that the management of the organi(ationHs activities es ecially its records not given ublic interest! =rom e' erience with bad governments) it ublic interest rarely coincides with government interest! In

many instances) inaccessibility of official records has given certain individuals and cor orations the belief that they too can restrict information even when it is in the interest of the ublic that such information be released! Benefi ! "f #e FOIA.$ ,! <nyone can access any information or record) subject to s ecific e'em tions) in the custody of any ublic institution or rivate institution utili(ing ublic funds) erforming ubic functions or roviding ublic services! ?! One is entitled to receive a re"uest for information within seven days! 1! 2veryone will enjoy o en access to information on issues such as health and social develo ment rivate artnershi rojects) ublic rocurement and ublic budgeting) ublic rojects) asset declaration of serving ublic officials) etc! olicies) rojects and olicies) maternal)

-! Nigerians can monitor the level of service delivery from Iovernment and their effectiveness in all areas including) social

www!r?knigeria!org

neo4natal and other medical care services) basic education) and overty eradication rogrammes and olicies! 5! Iovernment and the general ublic alike can now monitor the allocation and flow of scarce J! Career in ublic ublic resources to ensure that there is e"uitable distribution of rofessionals can benefit from the creation of jobs in the management of rovide new revenue streams for consultants involved olicy research) dis ute olicy formulation) information management) develo ment rojects across the country! ublic records# the =OI< will

resolution) com liance officers) auditors and accountants as well as legal ractitioners) amongst many others! /! +olicy makers will have access to reliable information on from which they can distil em irical data for evaluating the successes of government modifying them where necessary! olicies and

Challenges of the =OI< F%ee&"' "f Inf"%'( i"n A) (n& i ! I'*+i)( i"n " #e ,%e!! Pls check the paper I attached for info here and see if it makes sense

F%ee&"' "f Inf"%'( i"n A) (n& i ! I'*+i)( i"n f"% Re)"%&! (n& Offi)e Se)-%i . M(n(/e'en The im lication of freedom of information <ct on records and security management is that it given the needed rotection against ublic officers by stating that notwithstanding anything contained in the Criminal Code) +enal Code) the Official *ecrets <ct) or any other enactment) no civil or criminal roceedings shall be made against any government or ublic institution) or against any erson acting on behalf of the government or ublic institution) and no roceedings should be made against the =ederal Iovernment) state or 0ocal Iovernment or any institution! Thereof for the disclosure in good faith of any record or any art of a recovered ursuant to this <ct) for any conse"uences that flow from that disclosure) or the failure to give any notice re"uired under this <ct) if care is to give the re"uired notice!

One area of worry in this <ct) it did not s ecify who is eligible to get records from ublic institution or government! Does it mean) a man on the street can just a interference! Otherwise) you cannot get information on <biolaKDar4 <dua death! There are certain official records that are difficult to get because official records are regulated such as secret fileKconfidential file) medical records) bank records) etc! ? ly for information from government or ublic institution and get it easily and free from

T#e )"-% (n& #e FOIA <nother challenge of the freedom of information act is a critical understanding by the court in assing accurate judgment! < critical e'am le of this is culled from an article by Temito e Olodo osted in htt #KKnaijatodaynews!blogs ot!com titled Justice Gabriel Kolawole, Dr. Reuben bati ! "reedom of Information ct #$%%&

LIt will be an injudicious e'ercise of my discretion) ursuant to the rovisions of Order 1- of the =ederal Cigh Court ;Civil +rocedureA Rule) ?..7 to roceed by granting leave to the < licant to a ly for an order of mandamus against a Res ondent who has not been sued or shown to be a ublic institution or authority) and even as an &officer of the =ederal Iovernment in charge of information&) that has not been shown to have awarded any contract and to be amenable to the issuance of rerogative writs of mandamus to com el the erformance of a ublic duty after a refusal to do so has been established!L4 6ustice Iabriel 8olawole) =ederal Cigh Court) <buja! The above statement attributed to 6ustice Iabriel 8olawole clearly reveals that Nigeria 6udicial needs a serious orientation on the =reedom of Information <ct and for the 6ustice 8olawole to re"uest for curtailing of the <ct further demonstrate my
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<yuba <! <minu et al!! ?.,,

concern that he has little or no knowledge of the <ct! =or over ,. years) civil society organi(ations and cam aigners battled for the enacting of the =reedom of Information <ct which in a nutshell gives Nigerians to re"uest for any ublic record not covered by e'em tions! The ur ose of the law is to ensure accessibility and hel with trans arency! Cowever) I believe it is crucial to e'amine the judgment of 6ustice 8olawole in order to understand the err of law and dangerous recedent that he is setting on the subject matter! The *to Im unity Nigeria ;*!I!N!A filed a Eotion 2'4+arte on behalf of +aradigm Initiative Nigeria ;+INA on 6une 5) ?.,1) an order of mandamus to com el the * ecial <dviser to the +resident on Eedia and +ublicity) Dr! Reuben <bati) to disclose to the organi(ation detailed information on the multi4million dollar contract awarded sometime in < ril ?.,1 to an Israeli com any) 2lbit *ystems) to monitor internet communication in Nigeria! The decision of *to Im unity Nigeria ;*!I!NA submitted on behalf of +aradigm Initiative Nigeria ;+!I!NA com lies with the legislative rovision of the =reedom of Information <ct ?.,, section ?.#L<ny a information) or a a art thereof) may a a licant who has been denied access to ly to the Court for a review of the matter

within 1. days after the ublic institution denies or is deemed to have denied the lication) or within such further time as the Court may either before or after the e' iration of the 1. days fi' or allow!!!LThe role of the court at this oint is to determine the legitimacy and validity of the Claimant submission against the Res ondent and whether it is admissible! The Claimant according to available court information wanted# ,! < declaration that the denial of access and refusal to make available to +IN detailed information on the contract awarded to 2lbit *ystems) a com any based in Caifa) Israel) for the su ly of the %ise Intelligence Technology *ystem for Intelligence <nalysis and Cyber Defense for Nigeria by Dr! <bati without an e' lanation constitutes an infringement of +IN&s rights guaranteed and rotected by section , ;,A of the =reedom Information <ct) ?.,,!

?! < declaration that the continued refusal of Dr! <bati to make the information available to +IN des ite the organi(ation&s demand violates section - of the =reedom Information <ct! 1! <n order of mandamus com elling Dr! <bati to make the information available to +IN! <ny reasonable judge with little knowledge of the <ct would have clearly dismissed the case not on grounds of locus standi which the court decided to em loy but rather on grounds of e'em tion which is the reason I believe Nigeria judges must be given training on =reedom of Information <ct ?.,, and I will diagnose the court based on the little information available! On the rima facie) the court information revealed that +IN was interested in a contract awarded to 2lbit *ystems) a com any based in Caifa) Israel) for the su of the %ise Intelligence Technology *ystem for Intelligence <nalysis and Cyber Defense for Nigeria from the * ecial <dviser to the +resident on Eedia and +ublicity) Dr! Reuben <bati! The first "uestion the court should ask is thisG did the re"uest fall under e'em tion rule$ It is very clear the contract awarded to 2lbit *ystem based on the information rovided is for intelligence technology and cyber defense which is national security and thus covered under *ection ,,;,A of the =reedom of Information <ct ?.,,#L< ublic institution may deny an a lication for any information the disclosure of which may be injurious to the conduct of international <ffair and the defense of the =ederal Re ublic of NigeriaL The law however made it clear that in order for the ublic institution to invoke this section) a ublic interest test must be undertaken! It is the duty of the <ttorney Ieneral of the federation to draw u the guidance e' laining to ublic authorities what the ublic interest test is) when it is re"uired and how to a a ly it) taking into account relevant factors and weighting them ro riately) in order to decide whether to disclose information or not! ly

It is the duty of a ublic institution to weigh the ublic interest in maintaining the e'em tion against the ublic interest in disclosure! This is the ublic interest test! < ublic institution can only withhold an information ;i!e! defense informationA if the ublic interest in maintaining the e'em tion outweighs the ublic interest in disclosure! The ublic interest here means the ublic good) not what is of interest to

the ublic) and not the rivate interests of the re"uester! In carrying out the ublic interest test the ublic institution should consider the circumstances at the time of the re"uest or within the normal time for com liance! <ny sensible Nigerian would agree on the rima facie that intelligence information analysis is needed now because of the Boko Caram saga in the country and rocurement of the e"ui ment is for national security but +IN has a locus standi to ask "uestions to ensure the rivacy of ordinary Nigerians in terms of interce tion of legitimate Cyber e'change of Nigeria in the name of fighting a war against terrorism which is where the ublic interest test comes into lay! < art from e'em tion under National *ecurity) it is ossible to e'em t disclosure under trade secret and ongoing o erational enforcement action! *o) it is "uite clear that the judges err in the a lication of the rovision of the law in this case! The judge also lying# Lan order of mandamus against a Res ondent highlighted concerns about a

who has not been sued or shown to be a ublic institution or authority) and even as an &officer of the =ederal Iovernment in charge of information&) that has not been shown to have awarded any contract!!!L The court again misinter reted the rovisions of the =reedom of Information <ct ?.,, on the subject matter of who should be dealing with the re"uest of +IN! *ection 5! ;,A of the =OI< ?.,, states# L%here a ublic institution receives an a which the a a lication for access to information) that

another ublic institution has greater interest in the information) the institution to lication is made may within 1 days but not later than / days after the lication) and if necessary) the information) to lication licant) which notice shall contain a lication can lication is received) transfer the a

the other ublic institution) in which case) the institution transferring the a shall give written notice of the transfer to the a statement informing the a be reviewed by the Court!!!L licant that such decision to transfer the a

Thus the "uestion that the judge should be asking is sim ly) which ublic institution has a greater interest in this case! Did the re"uester follow the =OI re"uest to the right lace$ If the answer is NoG Did the Res ondent alerted the re"uester to that fact and forward the information to the relevant =ederal Iovernment Einistry in line with the rovision of *ection 5;,A of =OI< ?.,,$In the first instance) if I was advising

+IN on this case) I would have advised them to file the case against Einistry of Defense) N*< or The <ttorney Ieneral&s Office not The +residency and definitely not Reuben <bati) it is definitely a waste of court time and it reveals that they do not understand the =OI< ?.,,! 6ustice 8olawole claimed that there is no Lcountry in the world where access to all forms of ublic records are thrown o en even to an < licant who is not re"uired to show any s ecific interest in the information re"uested from a ublic body!L +lease can also tell his learned judge to use the Internet to google L=reedom of InformationL and he will reali(e that in every jurisdictionG the <ct allows o en access to all information a art from these highlighted as e'em tion and e'ce tion in some legal jurisdiction which Nigeria =OI< covered thus it is clear his lordshi did not read the <ct! Below are sections of the <ct in other counties where =OI< o erates and locus standi is not needed# *erbia M <rticle ,5;-AG India M *ection J;?AG 0iberia M *ection 1!?G Ee'ico M <rticle -.G *outh <frica M *ection ,,;1AG =inland M <rticle ,1;,AG Uganda M <rticle JG United 8ingdom M *ection @G *weden M <rticle ,-;1AG Bra(il M <rticle ,.;1AG <ustralia M <rticle ,,;?AG Canada M *ection JG among do(ens of others! =inally) the judge highlighted an area of serious concern on locus standi#L!!!an < licant for any of the rerogative orders for judicial review to demonstrate that lication for leave he has &sufficient interest in the subject matter to which the a

relates LIn law) standing or locus standi is the term for the ability of a arty to demonstrate to the court sufficient connection to and harm from the law or action challenged to su ort that arty&s artici ation in the case! *tanding e'ists from one of three causes# ,! The arty is directly subject to an adverse effect by the statute or action in "uestion) and the harm suffered will continue unless the court grants relief in the form of damages or a finding that the law either does not a the law is void or can be nullified! ly to the arty or that

This is called the Lsomething to loseL doctrine) in which the arty has standing because they directly will be harmed by the conditions for which they are asking the court for relief! ?! The arty is not directly harmed by the conditions by which they are etitioning the court for relief but asks for it because the harm involved has some reasonable relation to their situation) and the continued e'istence of the harm may affect others who might not be able to ask a court for relief! 1! The arty is granted automatic standing by act of law! Under some environmental laws in the United *tates for e'am le) a arty may sue someone causing ollution to certain waterways without a federal ermit) even if the arty suing is not harmed by the ollution being generated! 2ven in develo ed countries) the issue of locus standi has been established in law and we need to ensure that the =reedom of Information <ct ?.,, is not amended because a judge can&t sit down to study the case him or her ro erly! In British administrative law) the a which the a licant needs to have a sufficient interest in the matter to lication relates! This sufficient interest re"uirement has been

construed liberally by the courts! <s 0ord Di lock e' lained in a decided case# LNiOt would!!!be a grave lacuna in our system of ublic law if a ressure grou !!!or even a single ublic s irited ta' ayer) were revented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct sto I believe the above "uotation clearly su ed!L

ort my argument that amending the <ct

because some eo le don&t understand how to o erate within the ambit of the law is clearly unacce table and backward thinking! To avoid future difficulty on the inter retation of the <ct and revent the wasting of court&s time) I will recommend# ,! 2stablishment of the Loffice of Nigeria Information CommissionerL which will be an inde endent adjudicator mediating between the ublic institution and aggrieved arties on cases relating ublic record and com liance with the =reedom of Information <ct ?.,,

?! 6udges are enlightening about the =reedom of Information <ct ?.,,1! The 0egislators should take their oversight function seriously and ensure ublic institution com liance with the <ct! The judge insisted that Lthe res onsibility to use the <ct by Nigerians res onsibly as an instrument to ensure trans arency in governance should not be left so loose and at large without any form of checks and erha s) balances!L Cowever) contrary to the assertion of 6ustice Iabriel 8olawole of =ederal Cigh Court <buja) there are ro er checks and balances embedded in the <ct but the im lementation and com liance is very weak! The * ecial <dviser to the +resident on Eedia and +ublicity) Dr! Reuben <bati) should never had been included in the litigation because he is clearly not the designated erson res onsible for handling =OI re"uest for The +residency! 6ustice Iabriel 8olawole also e' ressed the view in his ruling that the =OI <ct creates La situation where scarce ublic resources) time and energy are ermitted to be s"uandered in attending to a re"uest for information which the erson a lying for it need not show that he needsL ! Cowever) the <ct is clear that charges could be levied by the ublic institution under section @# L=ees shall be limited to standard charges for document du lication and =ees transcri tion where necessary!!!L The judge made an error of judgment in this case and he needs to educate himself on the =OI <ct ?.,,