Does FOI Act complement Official Secrets Act?

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ON July 2, 2024, the Secretary to the Government of the Federation (SGF) in Nigeria, George Akume warned communication managers across all Ministries, Departments and Agencies (MDAs) against leaking official secrets.

Akume who was represented by the Director of Information in his office, Segun Imohiosen, issued the warning in Abuja at a one-day workshop on the Role of the Official Secrets Acts (OSA) in Maintaining Confidentiality and National Security, organised by the Bureau of Public Service Reforms, in collaboration with the Office of the SGF.

“As you are aware, leaking an official secret is a felony, and there is no defence for such an act either in the Constitution of the Federal Republic of Nigeria or the Freedom of Information Act (FOIA).” 

Reacting, Media Rights Agenda (MRA), an organisation with a focus on press freedom in Nigeria condemned the claim credited to the SGF (Akume), which threatened that government officials who disclose information without authorisation would be jailed.

The Deputy Executive Director of the organization, Ayode Longe, described the SGF’s allegation against civil society organizations (CSOs) as “false and illogical.”

Longe stated that Akume’s accusation that CSOs use the FOI Act to “harass, intimidate and siphon resources from public officers through the dissemination of fake and unfounded information” is baseless.

He called on Akume to substantiate his allegations, noting that the SGF apparent aversion to transparency and accountability should not lead him to mischaracterize the FOI Act or falsely accuse CSOs that have merely exercised the right granted to them and all others by the Act.

He added that the SGF would face a significant challenge in attempting to prosecute any government official for unauthorized disclosure of information in light of Section 27(2) of the FOI Act which provides circumstances in which they can do so. 

In its editorial published on July 8, 2024, Blueprint, a Nigerian news medium chaired by the nation’s Minister of Information and National Orientation, Mohammed Idris Malagi, described MRA’s position that the government would find it difficult to prosecute its officials for unauthorised disclosure of information due to the FOI Act as misleading and mischievous.

“Unfortunately, the MRA’s claims are as misleading as they are mischievous, thus, falling on all fours. It is trite to state that the FOI Act is neither inconsistent nor incongruous to the Official Secrets Act. The FOI, therefore, does not invalidate, vitiate, void or repeal the Official Secrets Act. The extant legal instruments are, in fact, complementary and analogous as they are geared towards the overall objective of ensuring the nation’s security and accelerating its socio-economic and political development,” part of the editorial reads.

In its reaction to Blueprint’s editorial, the MRA noted that while the FOI did not repeal the Official Secrets Act, it was not consistent or complementary with the Act, as claimed in the editorial.

The MRA noted that there was a difference between the Official Secrets Act (OSA) which criminalises disclosure of information without authorisation and the FOI Act which protects workers that disclose information without authorisation.

“The two laws are not complementary, they are not analogous and there is absolutely no meeting point between them. The difference between the two pieces of legislation is as stark as the difference between night and day.  Besides, there is nothing contained in the Official Secrets Act that can be interpreted to be aimed at enhancing transparency or accelerating the socio-economic and political development of Nigeria,” the MRA noted in its latest statement.

But this is not the first time that the Nigerian government will issue a similar threat. In February 2024, the head of the civil service of the federation issued a warning to civil servants in ministries, departments, and agencies (MDAs) against leaking sensitive documents to the public describing it as “embarrassing”.

The FactCheckHub observed that some sensitive government documents have found their way to the public space in recent times. Some of them revealed mismanagement of funds, abuse of office, outrageous spending, corruption, etc.

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One of them was a leaked memo revealing that Akume wrote to Nigerian President Bola Ahmed Tinubu, requesting the sum of N1 billion for the activities of the national minimum wage committee.

Another leaked document revealed how Betta Edu, the suspended minister of Humanitarian Affairs and Poverty Alleviation, received N3 billion of COVID-19 funds for the verification of the national social register.

Another one also revealed that Edu, in December 2023, asked Oluwatoyin Madein, Nigeria’s Accountant General of the Federation, to transfer a total sum of N585.2 million from the National Social Investment office account to the UBA account of Bridget Oniyelu, the accountant of a federal government poverty intervention project called Grants for Vulnerable Groups.

 

But, is FOIA complementary to the Official Secrets Act?

To support his stance, Akume relied on the Official Secrets Act (OSA), a law enacted in 1962 to protect state secrets and sensitive government information from unauthorized disclosure. Its main purpose is to prevent espionage, sabotage, and other activities that could threaten national security.

Apart from this law, various Nigerian laws such as the Evidence Act, the Public Complaints Commission Act, the Statistics Act and the Criminal Code prevent civil servants from divulging official facts and figures.

Prior to the introduction of the FOI Act in 2011, virtually all government information in Nigeria was classified as top secret. This secrecy makes it difficult to get information from government agencies. The implication of this is that the public especially the media was denied access to information that is critical for accurate reporting, and unravelling the web of corruption in government agencies.

The FactCheckHub reviewed various research papers on this controversy. The result shows that Blueprint’s stance is not entirely true (HALF-TRUE). While the essence of FOI Act is to ensure access to information, the official secrets act was aimed at restricting the disclosure of information.

The FOI Act aims to promote transparency and accountability in governance, while the Official Secrets Act prioritizes national security and confidentiality. In fact, the law serves as the justification used by government officials over the years to deny public access to basic information.

For instance, a research published in the Ebonyi State University Journal of Mass Communication and written by Emmanuel Onwe titled “Implications of the Freedom of Information Law on the Official Secret Act” contended that the Freedom of Information Act and the Official Secrets Act are two opposing legal instruments facing press practice in Nigeria.

The research argued that since the FOI Act came after the Official Secrets Act, it means the latter came to correct some “mischief” and “anomalies” of the former and this makes the FOI Act superior.

It concludes by stating that the Freedom of Information (FOI) Act effectively renders the Official Secrets Act obsolete, and the press should freely use the FOI Act without worrying about the constraints of the ‘outdated’ Official Secrets Act.

Even though the two laws have to do with managing information, they fundamentally serve different purposes. The Official Secrets Act imposes strict secrecy obligations on government officials, making it illegal to disclose classified information. This directly conflicts with the FOI Act’s intent to make information accessible.

 

Can a public official disclose ‘classified’ information?

But while the official secrets act is still relevant, the Freedom of Information Act (FOI Act) which is the latest acknowledges the already existing laws such as the official secrets act and goes on to provide some circumstances in which a public official can leak an official secret or classified information.

The FOI Act is a law that allows individuals to request access to government-held information and records. The primary objective of the FOI Act is to promote transparency and accountability within government institutions by providing the public with the right to know how decisions are made and how taxpayer money is spent.

Section 27(2) of the FOI Act which protects whistleblowers states that “Nothing contained in the Criminal Code or Official Secrets Act shall prejudicially affect any public officer who, without authorisation, discloses to any person, an information, which he reasonably believes to show mismanagement, gross waste of funds, fraud, and abuse of authority or a substantial and specific danger to public health or safety notwithstanding that such information was not disclosed pursuant to the provision of this Act”.

Even though the two laws appear conflicting and have led to arguments between the government, media and CSOs over the years, this section explicitly provided a ground in which classified information can be disclosed by a government official without authorization.

It means public officers and anyone acting on behalf of a public institution are protected from civil or criminal charges if they disclose information in good faith under the FOI Act. This means they can’t be sued or prosecuted for sharing information as long as the information falls under any of the classes covered.

 

Lawyers, CSOs react

A lawyer and Principal Partner at Clay & Amicus Solicitors, Chukwubuikem J.S. Azoro, explained that the interpretation of “leaking” depends on its definition. 

He noted that the FOI Act mandates public officers to disclose information on official matters to any interested member of the public who applies for such information and if there is a refusal to comply, the applicant can sue to compel disclosure. 

However, Azoro highlighted that exceptions exist to this rule such as information which can undermine national security.

Azoro also emphasized that if “leaking” is defined as disclosure made without due process, it is considered unlawful under the Official Secrets Act. He, however, pointed out that some specific classes of information are exempted by FOIA, and anything outside that class is not included, with general rules continuing to apply.

“The FOI is currently the main law. It authorizes disclosure. However, there are limited situations involving specific classes of information that the FOIA does not cover. In such cases, the OSA applies,” he said.

“FOIA is the main law on official disclosure of information. It states the procedure for official disclosures. If disclosure is made without compliance with the FOIA, it may amount to “leakage of official information” which is prohibited by both the OSA and Criminal Code.

“However, if the “leakage of information” is done with respect to some specific classes of information as listed in section 27(2) of FOIA, the person may escape liability and punishment which he should have suffered under the OSA and Criminal Code. Where the leaked information falls outside the class listed in section 27(2) of FOIA, the protection is lost and the OSA and Criminal Code will apply to make the person liable.”

Edo State Lead of Hope Behind Bars Africa, Emmanuel Okorie, noted that leaking official secrets generally is an offence which attracts punishment.

He explained that it may not attract punishment if the official unintentionally or accidentally leaks the document.

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“You have to check the intention. You have to check the motive behind the person’s action. If the person didn’t intend to release it. Like a situation where some documents are in possession of an individual and may be in the process of transferring or sharing to another end, it gets intercepted along the way, it can be a defence for the person in court.

“If the action is there but the intention is not there, there’s no offence. If the intention is there and there is no action, there’s no case. This can serve as a defence or justification for which an official document is leaked,” he added.

He also agreed that if the official secret involves corruption, mismanagement of funds or abuse of authority, such can serve as a defence in a court of law.

On his part, the Chairman of the Board of Governors, Freedom of Information Coalition Nigeria (FOICN), Dr. Walter Duru, said, “I don’t know why there should be an issue for the people to be involved or aware of what the government is doing. Governments all over the world are not secret cults.” 

He pointed out that the FOI Act is a recent law and its introductory part clearly states that any law conflicting with the FOI Act is null and void.

Duru expressed disappointment that the current administration, led by President Tinubu, who was previously an advocate for good governance, has not met expectations regarding transparency. He argued that good governance is impossible without operational access to information laws. 

“The SGF didn’t tell Nigerians under which law or legislation that he gave that directive or pronouncement if it’s under the Official Secrets Act or not; when it comes to FOIA, they will tell you, especially the states that it is yet to be domesticated. But can you tell me one state that has domesticated an official secrets act in Nigeria?” he queried.

While not supporting irresponsible behaviour by public servants, Duru said any attempt or effort to keep Nigerians uninformed about government activities, policies, and spending will not be accepted. 

He argued that some of the information being “leaked” by public officials is information that is supposed to be made available to the public by public institutions in line with the proactive disclosure rule of FOI Act.

“Therefore, if they are not proactively disclosed and any good citizen acting in good faith decides to release such information. I don’t see any crime that the person has committed. We expect this administration to be deliberate about implementing the FOI Act,” he told The FactCheckHub.

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Nurudeen Akewushola is a fact-checker with FactCheckHub. He has authored several fact checks which have contributed to the fight against information disorder. You can reach him via [email protected] and @NurudeenAkewus1 via Twitter.

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