THE Supreme Court of Nigeria has unanimously affirmed that the Freedom of Information Act (FOIA) 2011 applies to all tiers of government, including state institutions.
This decision marks a decisive reversal of the 2018 majority ruling by the Court of Appeal, Benin Division, which controversially held that the FOIA applied only to federal Ministries, Departments, and Agencies (MDAs).
The apex court upheld the appeal, affirming the trial court’s decision that the National Assembly has the legislative competence to enact laws on public records and archives.
The Court emphasised that the FOIA, designed to promote transparency, citizen engagement, and accountability in public governance, is binding throughout the federation.
A referenced case in point, which led to the decision was Austin Osaku v. EDOSACA SC/614/2014, which began 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).
The applicants sought detailed records related to the HIV/AIDS Program Development Project (HPDP II), including financial expenditures, grants, donor partnerships, contract awards, and criteria for grant allocations between 2011 and 2014.
Speaking after the judgment, President Aigbokhan, Esq., lead counsel for the appellants, hailed the ruling as a model decision that addresses not only inconsistencies in law but also a legislative vacuum at the state level.
“This is not just a legal victory—it is a victory for democracy. This decision is a major leap for the global campaign for probity, accountability, and transparency, with far-reaching impact on public citizens at the sub-national level. Our laws must work for all. Once again, the Supreme Court has demonstrated its crucial role as a veritable arbiter of democratic ideals.”
He further dedicated the victory to the activists and NGOs in Edo State who stood together to pursue the matter to its logical conclusion.
This judgment dismantles the long-held excuse by some states for refusing to comply with FOIA provisions due to the absence of corresponding state laws. With the Supreme Court’s pronouncement, state governments can no longer deny access to public records on the grounds of legislative non-alignment.
Since Nigeria’s return to democracy in May 1999, citizens, media, and civil society organisations have been engaging with the various tiers of government to achieve transparency and accountability.
In 2011, replicating a law that was already in force in many parts of the world, former President Goodluck Jonathan signed the FOI Bill into law to give the Nigerian people access to information on government activities in the custody of any public institution or where the public fund was (or is being) utilised.
The law also mandates public institutions to disclose essential information on their websites.
The law gives a person, group, association, or organisation the right to access information from all government institutions and private firms utilising public funds.
It provides a platform to hold leaders accountable. Still, public institutions, especially at the state level, have continued to disregard the law, especially when they have something to hide from Nigerians.
Section 1, subsection (1) of the FOI Act, states that “Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution howsoever described, is established.”
Also, Section 2, Subsection 4 of the same Act mandates public institutions to ensure that information requested by an individual or organisation is widely disseminated and made readily available to the public through various means, including print, electronic, and online sources, and at the offices of such public institutions.
Should there be any reason an FOI request will not be granted, the Act stipulates that the affected institution must give written notice to the applicant on why the information will not be granted, referencing the section of the Act under which the denial is made.
Furthermore, Section 4 of the Act states: “Where information is applied for under this Act, the public institution to which the application is made shall, subject to sections 6, 7, and 8 of this Act, within 7 days after the application is received- (a) make the information available to the applicant (b) Where the public institution considers that the application should be denied, the institution shall give written notice to the applicant that access to all or part of the information will not be granted, stating reasons for the denial, and the section of this Act under which the denial is made.”
Similarly, section 5 provides for a public institution to transfer an FOI request to another public institution if the organisation has a greater interest in the information within at least 7 days after the application is received.
“(2) Where an application is transferred under subsection (l), the application shall be deemed to have been made to the public institution to which it was transferred on the day the public institution received it.
“(3) For the purpose of subsection (l), a public institution has a greater interest in information if – (a) the information was originally produced in or for the institution; or (b) in the case of information not originally produced in or for the public institution, the institution was the first public institution to receive the information.”
Nurudeen Akewushola is an investigative reporter and fact-checker with The ICIR. He believes courageous in-depth investigative reporting is the key to social justice, accountability and good governance in society. You can reach him via nyahaya@icirnigeria.org and @NurudeenAkewus1 on Twitter.