Policy Analysis: Making The Freedom of Information Act Function Better

INTRODUCTION:
The FOIA was enacted in 2011 during the first term of President Goodluck Ebelle Jonathan to provide citizens with the right to access public records and information. The Act is aimed at promoting transparency, accountability, and good governance in Nigeria. The FOI Act comprises 31 sections, each outlining specific provisions and guidelines for the exercise of the right to information. These provisions include: Rights of access to records (Section 1), Information about public institutions (Section 2), Request for access to records (Section 3), Timeframes for granting or refusing applications (Sections 4-6), Fees and charges (Section 8), Record keeping and maintenance (Section 9), Exemptions and limitations (Sections 11-18), Denial and review procedures (Sections 19-22), Protection of public officers and documents (Sections 27-28).

The key provisions of Section 3, subsection (1) of the FOIA establishes the right of individuals to access information held by public officials, agencies, or institutions. The Act outlines the process for requesting information, requiring public institutions to provide the requested information. However, exemptions apply to security agencies, and provisions allow for delayed responses, and not necessarily outright denial in every case when the request of information is made.

Strengthening the FOIA is crucial for promoting transparency, accountability, and informed decision-making in Nigeria. By addressing the challenges facing the Act’s implementation and implementing the recommendations outlined in this policy report, Nigeria can take a significant step towards ensuring that citizens have access to the information they need to hold their government accountable towards making the FOIA function better in promoting transparency, accountability, and good governance in the country.

Evidence suggests that since the enactment of the Freedom of Information ACT (FOIA) fourteen years ago through interviews and interactions with journalists, civil societies, citizens, and across a number of government agencies demonstrates that the effectiveness of the FOIA is being called into question.

FOIA in Practice
Benchmark analysis based on an FOIA survey ranking conducted by the International Centre for Investigative Reporting (ICIR), reveals that 250 MDAs within three years from 2020-2022, showed that MDAs do not actively respond to requests made through the FOIA. This report published by ICIR, who also took the MDAs to court for their refusal to provide information, showed that over 150 MDAs flout Freedom of Information Act.
In this survey, a benchmark of 15 points was set to identify poor performance in Ministries, Departments, and Agencies (MDAs) relation to their responsiveness to FOI requests. MDAs scoring below 15 points in the last three years either failed to respond to FOI requests or responded after the deadline specified in the law. The results showed that in 2020, 169 out of 250 MDAs scored below 15 points. In 2021 and 2022, 173 and 153 MDAs scored below 15 points, respectively. In contrast, only a few MDAs achieved high scores. On average, only 2 MDAs scored above 50 points in 2020. In 2021 that number rose to 3 MDAs scoring above 50 points. By 2022, only 7 MDAs scored above 50 points. The data suggests that while responses to FOI requests have increased slightly over the past three years, meaningful information disclosure remains limited.

Similarly, in 2024, a coalition of civil societies across budgeting, procurement, data research and accountability through a wide-reaching research survey discovered that only 1.22% of the 245 MDAs in Nigeria fully complied with the FoIA. The Accountability Lab Nigeria along with the Public and Private Development Centre, Media Rights Agenda, National Centre for Investigative Reporting, Budgit Foundation, and Right To Know, administered the FOIA Survey to 245 ministries, departments and agencies of government to determine the compliance pattern of the FOIA since it was passed and accented to by the Federal Government in 2011 to promote a culture of accountability and transparency by making investigative journalism possible.

It was noted that while information that may jeopardise national security, international relations or law enforcement proceedings are exempt from public access according to sections 11-19 and 26 of the FOIA, MDAs that came top on the survey include Nigeria Investments Promotion Council (NIPC), Tertiary Education Trust Fund (TETFUND), Bureau of Public Service Reform (BPSR), Nigeria Exports Promotion Council (NEPC), National Bureau of Statistics (NBS), and a few others. While there has been notable progress in implementation and compliance, however challenges persist including practical disclosure of information, harassment by certain security and other institutions, and blatant refusal of some institutions to disclose.

Despite progress reported due to the FOIA, evidence abounds that Nigerians are still denied their rights to access of information due to underutilization and the gaps within the judiciary and the police. According to Media Rights Agenda (MRA)’s 22-page report investigating the effectiveness and implementation of the FOIA tagged: “A Vote Against Transparency: A Report on Allocations for Freedom of Information Implementation in 2025 Federal Budget,” only 13 out of over 1,300 federal public institutions have provisions for FOI implementation in their budgets. Other Key findings of that report showed that the 13 institutions with FOI allocations are underfunded. These 13 institutions received a total of N230,825,750.00, representing 0.000464% of the Federal Government’s budget of N49.74 trillion. Only 1% of federal public institutions have allocations for FOI implementation and related activities in their 2025 budget proposals.

In the areas of risk of mismanagement, MRA’s programme officer, John Gbadamosi, argues that underfunding the FOI Act could lead to mismanagement or misappropriation of government funds. Another profound discovery was the limited awareness of the FOIA’s provisions and benefits, the wanton deployment of the Official Secrets Oaths Act often used as a restrictive law to deny access to public information, and the harassment and intimidation journalists who request information under the FOIA often face.

Key Implementation challenges
Despite its noble objectives, the FOI Act has faced significant hurdles in its implementation. Many government agencies and public institutions have been reluctant to provide information, citing exemptions and limitations outlined in the Act. The Official Secrets Act, which the FOI Act was meant to supersede, is still being used by some government agencies to deny access to information.

The author once approached a police officer to inquire about how many young adults are held in the police cell. The officer responded, “What is FOI? We don’t use it here”. This response speaks to the inherent limited awareness and utilization of the act by the bodies meant to implement, enforce, and execute it, such as members of the Nigerian Police Force. This is not an isolated incident. Making an FOI requests from agencies and many MDAs, often hide behind the Official Secrets Oaths Act to deny, prevent and close access to data and public documents to journalists who by the Nigeria Constitution, as the Fourth Estate, are required by law to bridge the governance gap between citizens and the government. Journalists are not public relations officers for the executive, the legislative or judiciary as each arm or estate of the government are autonomous in the discharge of their duties. Surprisingly, many of the agencies and MDAs do not realise that the FOI Act renders the Official Secret Oaths Act null and void.

The bone of contention that seems to be ‘perceived’ as a ‘threat’ to the enforcement, implementation and execution of the act however, will require examining articles I, II and IV.

Article II: Right to Information clearly states:

1. Every citizen has the right to access information held by public institutions.
2. Public institutions shall provide citizens with access to information, subject to the exemptions and limitations outlined in this Act.
3. Citizens shall have the right to request information in any form, including electronic, print, or audio-visual formats.
   Article III: Obligations of Public Institutions clearly also states that:
4. Public institutions shall maintain accurate and up-to-date records of their activities, decisions, and policies.
5. Public institutions shall provide citizens with information on their activities, decisions, and policies, subject to the exemptions and limitations outlined in this Act.
6. Public institutions shall designate a Freedom of Information Officer to handle requests for information and ensure compliance with this Act.
   While Article IV: Exemptions and Limitations states that:
7. Public institutions may exempt information from disclosure if it relates to national security, defense, or international relations.
8. Public institutions may exempt information from disclosure if it relates to law enforcement, investigation, or prosecution.
9. Public institutions may exempt information from disclosure if it relates to personal information, trade secrets, or confidential commercial information.
   Thus, while the FOI Act in one breathe gives journalists and other citizens and organisations right to request information, that permission, however, has a caveat that leaves the interpretation of what ‘public interest’ or ‘public good’ vis-à-vis what ‘national security, defense or international relations’ means based on the position, perception, interests, biases, prejudices of the government or agencies.
   

Amzat Ajibola, African Editor at the Centre for Collaborative Investigative Journalism (CCIJ) describes how “Questions majorly around procurement and public finance and budgets is where we encounter push backs. We are told ‘Look, you can’t invoke this law [FOIA] here,’ when we’re asking for the military budget, or when we’re asking for the FIRS to give us the records of the tax payment of some companies in Nigeria or some individuals, this was resisted. No matter how hard you’re trying to get any information about whether some companies are paying taxes or not paying taxes, you won’t be able to get any information from the FIRS. The same thing for the Nigerian army, if you want to get any information about how much it spends on arms and ammunition in the country, you won’t get information or any response from that. Even the police are also very, very reluctant to provide information. In fact, many agencies of the government, as long as you’re asking for information that they think, or they deem or they assume might expose the internal process of their office to the public, they just decline your request. These two agencies of the government that I have mentioned are very, very peculiar.”
This raises a very important question on what is considered ‘national security’, a term military agencies and other MDAs use as their calling card to refuse access to information despite what the FOIA states. Perhaps it is time the law makes a clear distinction on what is specifically considered “national security”.

Journalists and civil society organizations have been at the forefront of efforts to utilize the FOI Act to promote transparency and accountability. However, they have faced significant resistance from government agencies, with many requests for information being denied or ignored.
“The FOI Act has not been really helpful or impactful to Nigerians,” said Kemi Busari, an Editor with DUBAWA. “People are not aware of the enormous power that the Act has. Many journalists and civil society organizations are not using it enough.” To buttress his points further, he noted that, “The Attorney General’s annual performance reports for 2014, 15 and 16 shows that over 53% of government agencies received just one or zero FOI requests. So, for me, the biggest problem is that people are not using it, and because of that, it has not been really valuable or impactful to Nigerians.”

In addition, according to Amzat Ajibola, one of the major challenges is the lack of effective implementation of the FOIA by government agencies. “Some government agencies have FOI units, but they are underfunded and lack the necessary resources to function effectively,” he said. Another challenge identified by Ajibola is the lack of synergy between the FOIA and other relevant laws, such as the Procurement Act and the Code of Conduct Act, which serve the public good, yet are foiled with constant denial and refusal to FOI requests. “These laws are very important, but they are not being effectively implemented,” he said, adding that “The exception that you cannot ask for the health records of individuals when the individual is a public officer needs to be queried. The very moment you become a public person, you are the property of the people, and people should be able to ask for the health records of their leader in order to know whether they are fit for the office or not, because the question recognizes that only people who are fit for the office should be allowed to lead. The FOI LAW also did not make that kind of exception, and I think it’s a very important assertion in the case of the former president. We asked for the record of the President to know whether the man was actually fit for the office, but we could not access that information. The document on his health record is being considered a personal record, and therefore access to it is blocked. I think a review of the FOI should be carried out in order to address all these gaps, otherwise it will continue to make FOI to not be as effective as it should be.”

Busari also depicts the role private companies play as enablers and agents who frustrate access to information narrating his experience. “I remember in 2017/2018, I was following up on the Nuclear Technology Center story. There was a contractor who was given a contract, and at some point, the contractor had issues with the Ministry of Science and Technology based on the fund that was released or not released, and they took each other to court, and the project was abandoned. Since I was tracking the project, I approached the Ministry of Science and Tech. I spoke with their lawyers, and I wanted to know the status of the case. I wanted to get the documents, the certified true copy of the case and all. I approached them and they told me, ‘Well, we have this document, but we are not going to give you. You have to source it by yourself’. Okay, I agree you’re not going to give me this document. Can you give me the suit number? So, once I get the suit number, I can go to the courts and get the information? They didn’t give me the suit number. I wrote to the Nuclear Technology Center. I wrote to the Ministry of Science and Tech. Even the lawyers I reached out to one on one with them, they did not give me the suit number. So, I had to deploy several other means to eventually get that document. it’s really tough with some government agencies”, Busari laments.
Experts agree that the FOI Act needs to be reviewed to address the gaps and challenges that have hindered its effectiveness. “There should be a clearer and more purposeful request that sufficiently identifies the subject upon which the request is made,” said Babatunde Irukera, former Chairman of the Federal Competition and Consumer Protection Commission (FCCPC). This, he explains helps curbs unscrupulous abuse of the FOI request.

Babawale Tunde, Provost of the EFCC Academy, made the observation that “The gaps noticeable in the implementation of the FOI are reflected in the absence of consequences for agencies that refuse to respond to FOI requests and the failure of those who make requests to show why those requests are being made.” This has become necessary to enable penalties be applied to defaulting agencies in order to enforce compliance. In other words, when individuals apply, they must make their intentions clear in order to prevent politically-motivated or malicious requests he emphasised. He added that “The FOI has made the existence of the oath of secrecy superfluous.”

As Nigeria continues to grapple with the challenges of implementing the FOI Act, it is clear that more needs to be done to promote transparency and accountability in governance. The FOI Act has the potential to be a powerful tool for promoting good governance, but it requires the political will and commitment of government agencies and public institutions to make it effective.

How Could These Challenges be Addressed or Mitigated?
Nigeria created a Committee on Reform of Government Institutions to oversee compliance with the FOIA and promote proactive disclosure in response to some of the challenges identified above. Yet, with the existence of conflicting lower court judgments denying states from providing the FOI when sought by citizens, journalists, researchers, etc., this prevents and empowers MDAs and agencies to hide behind said judgments. Kemi Busari agrees. “There are two conflicting judgments on the use of FOI ACT in states. There was a judgment that says that the FOI ACT is applicable to states, and there’s another one that says it does not. I think it got to the court of appeal, but I don’t know if the supreme government has ruled that, yet. We need that ruling as quickly as possible. With a supreme court ruling stating that it applies to state, we know that we can enforce it, if it doesn’t apply to state, then we know that we need to advocate for states to come up with their own FOI ACT. I know some of them do already, but we need it in every state.” A mechanism to enforce that proactive nature of disclosure is key for open governance to thrive. Amzat Ajibola also emphasized the need for more sanctions to be imposed on government agencies that fail to comply with the FOIA.
Others have suggested the establishment of a special tribunal or court to quickly adjudicate FOI-related issues. “We need a court that can give a ruling in less than seven days, or less than two weeks,” said Busari, adding that “We need FOI desk in all government agencies and parastatals and we need FOI officers. People who are partly dedicated to responding to FOI act and all.”
Babawale Tunde also agrees. “The FOIA can be made to function better with greater sensitization of public servants and the general public on the significance of the Act and how important it is to the entrenched of transparency and accountability in government.”

Ayoade Longe, Programme Officer with Media Rights Agenda equally highlighted the need for an independent ombudsman to oversee the implementation of the FOIA. He explained that “The Office of the Attorney General of the Federation (AGF) currently has oversight responsibility for the implementation of the Act, but this is not ideal,” he said. “The AGF is a political appointee and lacks independence”, reflecting the lack of compliance with best global practices, he stated unequivocally.

Economic Benefits of Freedom of Information (FOI) Laws
Countries with effective FOI laws have

Increased Transparency and Accountability
Reduced Corruption: FOI laws have helped reduce corruption by increasing transparency and accountability in government dealings. For example, in South Africa, the Promotion of Access to Information Act has been used to uncover corruption and malfeasance in government contracts.

Improved Governance: By providing citizens with access to information, FOI laws have promoted better governance and more effective decision-making. In India, the Right to Information Act has enabled citizens to hold public officials accountable for their actions.

Economic Benefits
Increased Foreign Investment: Countries with effective FOI laws have attracted more foreign investment by demonstrating a commitment to transparency and accountability. For example, a study by the World Bank found that countries with strong freedom of information laws attract more foreign direct investment.
Improved Competitiveness: FOI laws have helped countries improve their competitiveness by increasing transparency and reducing bureaucratic red tape. In Estonia, the Public Information Act has been credited with helping to establish the country as a leader in e-governance and digital transparency.

Practical Examples
Mexico’s Transparency Law: Mexico’s federal transparency law has been instrumental in uncovering corruption and promoting accountability in government dealings. In 2019, the law was used to reveal that the government had spent millions of dollars on luxury properties and vehicles.

Slovenia’s Access to Public Information Act: Slovenia’s law has been praised for its effectiveness in promoting transparency and accountability in government dealings. In 2020, the law was used to uncover a major corruption scandal involving government officials and business leaders.

Canada’s Access to Information Act: Canada’s law has been used to promote transparency and accountability in government dealings, including in the areas of national security and public health. In 2019, the law was used to reveal that the government had withheld information about the risks of a major public health crisis.

Benefits for Citizens
Increased Participation: FOI laws have enabled citizens to participate more effectively in public decision-making by providing them with access to information. In Finland, citizens can access government documents and participate in public debates through an online portal.
Improved Services: By providing citizens with access to information, FOI laws have helped improve public services and promote better governance. In the United States, the Freedom of Information Act has been used to uncover inefficiencies and promote improvements in public services.

Conclusion
In conclusion, effective implementation of FOI laws can have significant economic benefits, including increased transparency and accountability, reduced corruption, and improved competitiveness. By providing citizens with access to information, FOI laws can also promote better governance and more effective decision-making.
Overall, while Nigeria’s FOIA is a good law, its effective implementation is crucial to promoting transparency, accountability, and good governance in the country. Addressing the challenges and recommendations outlined above will be critical to achieving this goal.

Despite its importance, only two states, Ekiti and Imo, have passed a state version of the FOI Act. Incidentally, in 2018, the Court of Appeal, Benin Division, held that the FOIA only applies to the Federal Ministries, Department, and Agencies (MDAs) in disregard to the competence of the National Assembly to enact laws on public records and archives, affirming that such matters fall within its constitutional purview. The case had originated on January 6, 2014, when a coalition of civil society organisations filed a Freedom of Information request to the Edo State Agency for the Control of AIDs (EDOSACA).

However, on 11th April 2025, the Supreme Court, made a landmark decision compelling all states and all tiers of government to comply with the FOIA. The Supreme Court unanimously affirmed that the freedom of Information Act FOIA 2011, applies to all tiers of governments, including states institutions. This decision marks a decisive reversal of the 2018 majority ruling by the appeal court, Benin division, which controversially held that the FOIA only applies to federal ministries (MDAs). This lead judgment by Hon. Justice Lawal Garba dismantles the long-held excuse by some states for refusing to comply with the FOIA Provisions due to the absence of corresponding state laws. With this Supreme Court’s pronouncement, state governments can no longer deny access to public records on the grounds of legislative non-alignment.

RECOMMENDATIONS
The need to therefore strengthen the FOIA in Nigeria requires identifying opportunities for effective execution of both the spirit and letters of the Freedom of Information Act and policy recommendations. Below is the summary of recommendations on how the implementation of the FOIA could be strengthened:

Establishing an independent ombudsman to oversee the implementation of the FOIA
Providing more resources and funding for FOI units in government agencies
Imposing sanctions on government agencies that fail to comply with the FOIA
Strengthening the synergy between the FOIA and other relevant laws
Conduct sensitization and training programmes nationwide for citizens, journalists, and public officials on the FOIA
Expedited judicial review of FOI cases, improvement of records management systems in public institutions, and strengthening enforcement mechanisms to ensure compliance by public institutions.
Government must regularly publicise the need for its agencies to respond quickly to FOI requests.

Journalists must always disclose the reason for making FOI requests and should avoid compromising the nation’s security in their quest to obtain information
Greater public awareness on the right of citizens to access information from government agencies. States that are yet to domesticate the law must also be urged to do so.

Review of ‘exemptions’ in the law that are not in conformity with global best practices to be drastically reduced. Foster synergy with other laws to promote effective implementation of related laws to enhance the FOI Act’s impact.

The lack of clear provisions in the FOI Act to supersede the State Secrets Oaths Act needs reviewing. Complying with best global practices: the FOIA can no longer be under the AG’s supervision.

PRACTICAL OPTIONS FOR IMPLEMENTATION:

1. Establishing an independent ombudsman: Create an autonomous Office of the Information Commissioner, similar to the UK’s Information Commissioner’s Office, to oversee FOIA implementation, investigate complaints, and enforce compliance.

Example: The Information Commissioner’s Office in the UK has successfully handled thousands of FOIA complaints, providing guidance and imposing penalties on non-compliant public authorities.

2. Providing more resources and funding for FOI units: Allocate dedicated budgets and personnel to FOI units in government agencies, ensuring they have necessary infrastructure and training to process requests efficiently.

Example: The Nigerian Ministry of Information could establish a dedicated FOI unit with trained personnel and adequate resources, enabling timely responses to requests.

3. Imposing sanctions on non-compliant agencies: Introduce penalties, fines, or disciplinary actions against government agencies that fail to respond to FOIA requests or provide incomplete information.

Example: South Africa’s Promotion of Access to Information Act empowers the Information Regulator to impose fines and administrative penalties on non-compliant public bodies.

4. Strengthening synergy with other laws: Harmonize FOIA with other relevant laws, such as data protection and archives laws, to ensure seamless implementation and minimize conflicts.

Example: The European Union’s General Data Protection Regulation (GDPR) and Freedom of Information laws are designed to work together, providing clarity on data access and protection.

5. Sensitization and training programs: Organize nationwide workshops, seminars, and online courses for citizens, journalists, and public officials to educate them on FOIA provisions, procedures, and benefits.

Example: The Nigerian Bar Association could partner with civil society organizations to conduct FOIA training programs for lawyers, journalists, and activists.

6. Expedited judicial review: Establish fast-track courts or specialized tribunals to handle FOIA cases, ensuring timely resolution of disputes and appeals.

Example: India’s Right to Information Act allows for appeals to be heard by Information Commissions, which have quasi-judicial powers.

7. Improving records management: Implement efficient records management systems in public institutions, enabling easy retrieval and disclosure of information.

Example: The UK’s National Archives provides guidance and standards for records management, ensuring public bodies maintain accurate and accessible records.

8. Government publicity: Regularly publicize the importance of responding to FOIA requests and the benefits of transparency.

Example: The Nigerian government could launch public awareness campaigns, highlighting citizens’ right to access information and the role of FOIA in promoting transparency.

9. Journalistic best practices: Encourage journalists to disclose reasons for FOIA requests and avoid compromising national security.

Example: The Nigerian Union of Journalists could develop guidelines for FOIA requests, emphasizing responsible journalism and national security considerations.

10. Public awareness and domestication: Promote public awareness of FOIA rights and encourage states to domesticate the law.

Example: Civil society organizations could conduct public outreach programs, educating citizens about FOIA and advocating for its domestication in states.

11. Reviewing exemptions: Review and revise FOIA exemptions to align with global best practices, minimizing unnecessary secrecy.

Example: The Canadian Access to Information Act has undergone several reviews, resulting in reforms to exemptions and improved transparency.

12. Fostering synergy with other laws: Ensure FOIA interacts seamlessly with other laws, promoting effective implementation.

Example: Australia’s Freedom of Information Act is designed to work in conjunction with other laws, such as the Archives Act, to facilitate access to information.

13. Superseding conflicting laws: Review and amend laws that conflict with FOIA, such as the State Secrets Oaths Act.

Example: South Africa’s Promotion of Access to Information Act supersedes conflicting laws, ensuring consistency and clarity.

14. Complying with global best practices: Ensure FOIA implementation aligns with international standards and best practices.

Example: The Open Government Partnership (OGP) provides a framework for countries to promote transparency and accountability, including through effective FOIA implementation.

SUPREME COURT’S APRIL 2025 FOIA JUDGMENT: Implementing the Freedom of Information Act in Nigeria’s Ministries, Departments, and Agencies (MDAs)

The recent Supreme Court ruling mandating all tiers of government to comply with the Freedom of Information (FOI) Act is a significant step towards promoting transparency and accountability in Nigeria. To ensure immediate implementation, MDAs can take the following steps:

Step 1: Designate FOI Desk Officers

• Appoint specific officers to handle FOI requests and ensure compliance with the Act.
• Provide training for FOI desk officers on the provisions of the Act, procedures for handling requests, and best practices.

Step 2: Develop FOI Guidelines and Procedures

• Develop guidelines and procedures for handling FOI requests, including timelines for response and exemptions.
• Ensure that the guidelines are easily accessible to the public, including on the MDA’s website.

Step 3: Proactive Disclosure

• Identify information that can be proactively disclosed, such as budgets, contracts, and policies.
• Make this information easily accessible to the public, including on the MDA’s website.

Step 4: Respond to FOI Requests

• Establish a system for receiving and responding to FOI requests in a timely manner.
• Ensure that responses are accurate, complete, and provided within the timelines specified in the Act.

Step 5: Monitor and Evaluate Implementation

• Establish a system for monitoring and evaluating the implementation of the FOI Act.
• Use data and feedback to identify areas for improvement and make necessary adjustments.

Step 6: Publicize the FOI Act

• Publicize the FOI Act and the MDA’s commitment to transparency and accountability.
• Provide information on how to make FOI requests and the procedures for handling requests.

Step 7: Harmonize Laws and Policies

• Review and harmonize laws and policies that conflict with the FOI Act.
• Ensure that the FOI Act is given effect in all relevant laws and policies.

By taking these steps, MDAs can demonstrate their commitment to transparency and accountability, and ensure compliance with the Supreme Court ruling. This will promote good governance, citizen participation, and economic development in Nigeria.

By: Lady Ejiro Umukoro
ED, LightRay! Media
Journalist /Author of Bestseller, DISTORTION
2025 Agora Policy Fellow