National Assembly Concludes Harmonization of Freedom of Information Bill

ABUJA, 14 FEBRUARY 2007: The Conference Committee of the National Assembly today concluded the harmonization of the two versions of the Freedom of Information Bill, paving the way for it to go before the President for Assent.

A clean copy of the single version of the Bill, which will go from the National Assembly to the President, is now expected to be ready next week.

The Chairman of the Senate Committee on Media and Public Affairs, Senator Victor Ndoma-Egba (SAN), who is also Co-Chairman of the Conference Committee, said today that once a clean copy of the harmonized Bill is produced by the Committee's secretariat, it will go to the two chambers for formal adoption, after which it will be sent to the President before the end of February.

He said he did not expect to have any further delays in the process as the Conference Committee report is not subject to debate and can only be either adopted or rejected.  He added that the Senate has identified the Bill as one of the priority legislations that need to become law before the end of this present administration’s tenure.

The Bill was first passed by the House of Representatives on August 25, 2004 and subsequently passed by the Senate, with some modifications, on November 15, 2006.  The differences in the versions passed by the two chambers of the National Assembly necessitated the harmonization process.

Members of the Committee from the Senate are Senator Victor Ndoma-Egba (SAN), Senator Udoma Udo Udoma, Senator Jubril Aminu, Senator Nuhu Aliyu, Senator Adeleke Mamora, Senator Uche Chukwumerije, and Senator Bunza Farouk Bello.

The members from the House of Representatives are Honourable Halims Agoda who serves as Co-Chairman, Honourable Abdul Oroh, Honourable Wale Okediran, Honourable Abike Dabiri, Honourable Bala James Ngilari, Honourable Emeka Ihedioha, and Honourable Depo Oyedokun.

Ahead of the Committee's meeting, Media Rights Agenda (MRA) submitted a memorandum to the Chairmen and members on behalf of the Freedom of Information Coalition, an alliance of over 200 civil society organizations campaigning for the adoption of a Freedom of Information Act in Nigeria. The memorandum made recommendations on which of the provisions of the two versions of the Bill should be adopted by the committee.

The Coalition's memorandum to the Committee, touched on Sections 5 (2) "Notice where Access to records are requested"; 8(1) "Where access is refused"; 9 "Fees, etc.  and action waivers"; 10 "Destruction or falsification of records"; 11 "Access to Records"; and 22 "Judicial Review" of the Bill, which were the provisions where the House of Representatives and the Senate differed.

Under Section 5(2), the Coalition noted that the amendment of the original Bill by the Senate, along with its new Section 9(2), suggest that payment should be made at the time the application for the record or document is made and before the public institution begins to process the application.

It said: "We do not think that this is the proper approach to adopt because it places premium on revenue making, which is not the primary purpose of a Freedom of Information Act.  Besides, it will be practically impossible for an applicant to determine the fee payable when the request has not been processed and an assessment of the fees has not been subsequently made by the public institution.  Furthermore, where payment is made at the time of submitting the application and before a determination is made by the public institution on whether the applicant will be given access to the requested information, in the event that access is subsequently denied, it will be cumbersome for the applicant to recover the fees already paid."

The Coalition argued that in the light of these, it believed that the provisions in the Senate version of the Bill would hamper the effective implementation of the Act and recommended that Section 5(2) of the Senate version should be deleted.

Under Section 8(1), the Coalition noted that the Senate version of the Bill does not require the public officer refusing access to state the specific provision of the Act on which the refusal was based.

It observed that "one of the established principles of Freedom of Information laws is that where a public authority seeks to deny access to information, it should bear the onus of justifying the refusal. The public authority must show that the information which it wishes to withhold comes within the scope of exemptions contained in the law."

The Coalition argued that if the Senate version of the Bill is adopted, it will mean that an applicant for any record or document who is denied access would be left to speculate as to why the request for the information was refused, which would undermine public confidence in the law.

Besides, it said, such a situation would make judicial review difficult or impossible as the courts will also be left to speculate about the reasons for the refusal and would be unable to undertake an effective review of the decision of the public authority refusing the request for information.

The Coalition therefore recommended that the House of Representative's version of the Bill be adopted.

On Section 9 of the Senate version, the Coalition observed that the rephrasing of the original provision of the Bill may prove problematic as it does not give any guidelines on how the fee structure should be set or impose any parameters on public institutions in determining the fees to be paid for records or documents.

According to the Coalition, "Without clear guidelines as to how the fee structure should be set or determined, the provision in the Senate version would give public institutions an unfettered discretion to set fees payable to access records and information.  There is a real danger that this could result in prohibitive fees which might discourage members of the public from using the Act."

It observed that the relevant section in the House of Representative's version of the Bill makes extensive provisions regarding the payment of fees for search, duplication, review, and transcription of documents in accordance with the principle that individuals should not be deterred from making requests for access to information and records by excessive charges.

The Coalition argued that it is essential that the fees payable for access to records and information are not so high as to frustrate the right of access.

It stated that: "It is well established that the long term benefits of a regime of openness in government business far exceed the costs which the government might recover from implementing a Freedom of Information Act.  Although implementing a Freedom of Information Act is bound to result in additional costs to government and other public institutions, such a regime brings immense benefits to the society by instituting greater transparency, accountability and efficiency and as such, the recovery of such costs ought not to be an overriding consideration."

The Coalition advised that the cost to the government of implementing the Law should be seen in the light of the capacity of a Freedom of Information Act to advance democracy and enhance public participation.

It argued that it was therefore important for the legislation to reflect this public policy objective through guidelines or parameters which would send a clear message to public institutions that the objective of the Law is not to make money.

Besides, it said, while the cost to the government might initially be high as a result of new structures and measures which need to be put in place to implement the Freedom of Information Act, as government departments and agencies become more efficient in their record-keeping and in handling requests for access, the cost will reduce progressively.

The Coalition observed that the provisions contained in the House of Representative's version of the Bill regarding the charging and payment of fees were more consistent with international standards in this area.

It also noted that subsection (2) of the section, as revised by the Senate, creates a danger in terms of the fact that the fees must be paid at the time an application for access to information is made and even before a public institution confirms that it has the information being applied for in its custody and is willing to grant access.

The Coalition therefore recommended that the provisions contained in the House of Representative's version on the section be adopted as they provide better guidance on the setting of fees and accord more with international standards and principles.

On Section 10 of the Bill, the Coalition observed that at the third reading of the Bill, where it was passed by the Senate, the upper legislative chamber had amended the section to prescribe a "maximum" term of 3 years imprisonment on conviction for anyone destroying or falsifying records and documents.  It noted that the amendment was not reflected in the clean copy of the Senate Bill.

On Section 11(1) of the Bill, the Coalition noted that given the advancements in information and communication technology, the amendments effected by the Senate to this subsection would not adequately cater for and cover the use of new technologies in the storage and management of records, documents and information generally as its provisions are too limiting.

It argued that the House of Representative's version of this subsection more adequately captures the use of modern technology by public institutions.  It therefore recommended that the House version should be adopted.

The Coalition also noted that Senate merged Section 22(2) with Section 24 in the House version of the Bill, but deleted the portion of the Bill which stipulates that where the head of a public institution refuses to grant access to any document or record, he should state the specific section under which he refused to disclose the record of document applied for.  It recommended that the specific section be state