13th July, 2011
One of the bills which suffered in the sixth session of the Lagos State House of Assembly is the Lagos State Freedom of Information bill meant for the effective running of the state through accountability in government.
Otherwise titled: “A Law To Provide Access To Public Records And information, Disclose Certain Official Information Without Authorisation, And Establish Procedures For Obtaining Such Information And For Connected Purposes,” the FOI bill makes it mandatory for public office holders to open their books to anybody who wants to look at them whether such person is from a constituted authority or not.
But the fact that it was not passed by the last Assembly may not have helped the bill and especially residents of Lagos State, who are willing to be carried along in the way they are being governed.
To an extent, it has also not helped the lawmakers in their oversight functions. At one of the sittings recently, the immediate past Chairman, House Committee on Information, Strategy and Security, Ipoola Omisore, told his colleagues that he found it difficult accessing the books of the state Security Trust Fund, STF, because, according to him, the STF made him understand that it does not source money from the government but from the public.
This revelation, however, rattled his colleagues who questioned the rationale behind such refusal by a body set up by an Act of the House, to allow members of the House do their work. The bill would have made it easier for Hon. Omisore to access the records of the STF if it had been passed before he visited the body. This, therefore, shows the necessity of the FOI bill.
The bill had passed through a public hearing and was about scaling the third reading when it was temporarily called off after a lawmaker representing one of the two constituencies of Ikorodu in the House, Sanai Agunbiade, drew the attention of his colleagues to the fact that the National Assembly was in the process of passing its own version of the FOI bill. He also advised his colleagues to be mindful of coincidence and clashes in sections of the two bills.
The lawmakers then decided to keep the bill pending till they resolve areas of discrepancies in the FOI bills; the one recently passed by their colleagues at the upper legislative Houses and the one by the state House of Assembly.
The FOI bill which is now in the cooler at the state House of Assembly and may begin its journey to being passed in the current Assembly, has 37 sections which are further broken into sub-sections.
Section one of the bill talks about access to information and emphasises that “as from the commencement of this law, every citizen of the state shall be given access to any record under the control of government or public institution not withstanding anything contained in any law or regulation.”
It also stresses that an applicant does not necessarily need to demonstrate specific interest in the information being applied for, just as it also stipulates that “a person who makes a request under the provision of this law has a right to access to any record in the custody or under the control of a government or public institution, including a record containing personal information about the applicant.”
Section two of the bill states that the head of every government or public institution to which the law applies shall ensure that the organisation and responsibilities of the institution including details of programmes and functions of each division, branch and department of the institution is published in the state gazette.
All classes of records under the control of the institution in sufficient details to facilitate the exercise of the right to access under the law, all manuals used by employees of the institution in carrying out any of the institution’s programmes or activities, documents containing final opinions including concurring and dissenting opinions as well as orders made in the adjudication of cases, and every other document that is part of the institution, are also to be published in the gazette.
While the bill moves that an applicant could go to court in order to force a particular institution, whether in the executive, legislative or judicial arm of government, to grant him access to materials and information if he is being denied, section three of the bill states that an applicant should apply for access to records by writing to the institution which has the control of such records.
The applicant is also expected to provide sufficient details to enable easy identification of the records he seeks to access.
Section five of the bill explains the restriction of the applicant in the access to public information. He can be denied access where he seeks to know the identity of a complainant, who provides information for administrative, investigative or law enforcement purposes.
But such application may be granted where the individual to whom it relates consents to the disclosure or where the information is publicly available. A limitation to this, however, is where such disclosure could become injurious to the individual in question or the government which releases the record.
In this case, it says: “The head of a government or public institution may refuse to disclose any record, the disclosure of which may be injurious to the conduct of government, state or national affairs.
However, in the interest of the public, the court may override the refusal by the head of government or public institution to disclose the information applied for.”
Whereas the bill gives seven days for an application to be considered and request implemented, it also states that there could be an extension of time (another seven days) if the records being requested are many or necessitate a research or if meeting the original time limit would unreasonably interfere with the operations of the government or public institutions or if the applicant does not give enough details to allow for easy sorting of the record. It states that the head of the public body must inform the applicant why the body is extending the seven days limit and when a response can be expected.
Applicants may also be denied access to information where such information would interfere with pending cases of investigation being handled by law enforcement or other agencies, if it would deprive a person of fair trial or disclose the identity of confidential sources.
He can be denied again if what he needs ” constitutes an invasion of personal privacy, however, where the interest of the public would be better served by having such record being made available, this exemption to disclosure shall not apply.”
Where access is being denied also, the head of an institution must state the relevant section of the law on which the refusal is based. Where the access is to be granted, fees shall be limited to a reasonable standard for document search, duplication, review and transcript where necessary where records are applied for commercial use, and where the application is made by an educational or non-commercial, scientific, research, or representative of the news media.
Section 9(sub-section 6a and b) stipulates conditions under which fees may not be paid by an applicant to access records.
Section 10 of the bill sounds interesting and puts a limit to the powers of whoever is in charge of a record being applied for. It states: “It shall be criminal offence punishable on conviction with three years imprisonment for any officer or the head of any government or public institution to which this law applies to either wilfully destroy any record kept in his/her custody or attempts to doctor or otherwise alter same before they are released to any person, entity or community applying for it.”
Another part of the bill prescribed a one year jail term for any head of an institution who falsely disclose or alter any document or information requested for under the provisions of the law.
Section 25 which made provision for the right of the whistle blower forbids any employer from victimising an employee or staff of any government or public institution because the latter revealed information to a commissioner relating to the contravening of a part of the law by the employer.
Every activity of government institutions must be made in an annual report not later than 1 February, every year, to the Attorney General of the state. The report should contain the number of determination to refuse access to records, number of appeals made by such applicants and a description of whether a court has upheld the decision of government to withhold the records, among others.
The Attorney General is expected to compile the entire reports into a single electronic access point and make it available to the public through online means. He would also notify the House not later than April that he has provided the material for the public. He is also expected to furnish the House with report of issues arising from access to information.
Analysing the relevance of the bill, Hon. Omisore explained that the state House of Assembly actually forced the National Assembly to look in the direction of the FOI bill.
He further explained that the bill, when passed into law, would afford every Lagosian the right to know how he is governed by those he trusted with his mandate.