Media and civil society fought to ensure the passage of a Freedom of Information Bill into law in Nigeria to ensure more transparency in governance. Unfortunately, it appears that some government agencies will do anything not to comply with the provision of the law on freedom of information. It is no news that a couple of cases have had recourse to the courts for the enforcement of this right.
On the 4th day of September, 2014, PIN had written to the National Identity Management Commission (NIMC) on behalf of itself and the Public and Private Development Centre and in accordance with the Freedom of Information Act 2011, requesting for copies of all documents relating to Procurement and Contract for the Provision of Payment by MaterCard for General Multi-purpose Card including the grant document and the grant agreement between MasterCard and NIMC, contract currency, the effective (start) date of the contract and the end date of the contract, the terms and conditions of the contract, payment schedule, the payment terms, etc.
This legitimate request was however not conceded by the Commission despite several follow-up and reminders to that effect. NIMC only responded on the 24th of October, after more than one month, contrary to the provision of the FOI Act, which stipulates one week. In refusing to grant the applicant their request, NIMC cited Trade Secret and National Security as the reasons for such denial. This excuse by NIMC holds no water as the procurement and contract details or information requested for, as listed in their letter dated 4th September, 2014, relates to public expenditure simpliciter, which by virtue of Section 2 of the FOIA 2011 ought to be made readily available.
As aptly observed by Seember Nyager, CEO of the Public and Private Development Centre: “In view of Section 11 of the FOIA 2011, the request for contract and procurement records for the provision of identity card solutions for all Nigerians is information whose disclosure should not be denied because NIMC has not shown that the release of such information is injurious to National Defence. It is however clear that the release of details of contract and procurement records which would require the collection and storage of details of all Nigerians is in the public interest, an interest which clearly outweighs any injury that may be caused from its release, by virtue the enabling provisions of Section 11 (2) FOIA.”
Edetaen Ojo, Executive Director of Media Rights Agenda agrees. “Even if NIMC got a grant from MasterCard, that does not preclude the information from being disclosed. Indeed, information regarding any such grant ought to be proactively disclosed under Section 2(3)(c)(v) of the FOI Act,” he stated. He continued, “I really do not see how the issue applies or becomes a justification for non-disclosure. Information can only be legitimately withheld if it falls within one of the exemptions contained in the Act and even so, such information should still be disclosed if a public interest in the disclosure exists and if the public interest in the disclosure outweighs any harm that might be caused by the disclosure.”
PIN Executive Director, ‘Gbenga Sesan, asked: “Is the NIMC implying that it did not conduct the procurement in accordance with the process stipulated in the Public Procurement Act (PPA) because of the national security implications or that it followed the PPA but cannot give the applicant the information because it falls within the national security exemption?” King James, PIN ICT Policy Program Manager stated: “Even if national security was a legitimate exemption, the onus is on NIMC to demonstrate how national security applies to the information PIN requested for. There is no attempt to do that beyond a blanket reference to and invocation of national security. There is nothing PIN has asked for in its FOI request that would require NIMC to disclose privileged, proprietary and confidential information or trade secrets that it obtained from MasterCard. PIN is not asking for the technology that MasterCard is using, except information relating to the process or procedure for the award of the contract the contract sum and the terms of the contract. There is absolutely nothing PIN is asking for that falls within this exemption. NIMC is simply using avoidance tactics, which usually suggests that they have something to hide.”
Even without the FOI Act, all the information PIN requested could still have been legitimately asked for under the PPA. “We trust that NIMC will do the right thing as PIN and PPDC have now sent another request to the organization, requesting for specific information under the provisions of the FOI Act. The national ID card project has raised a lot of privacy concerns and we believe that the lack of a Data Privacy law in Nigeria should make organisations like NIMC consider the weight of their actions more seriously. With diverse institutions – banks, INEC, Immigration Service, FRSC, telecommunications companies – holding the private data of Nigerian citizens, it’s time to ask the tough questions around the absence of Data Privacy law”, ‘Gbenga Sesan added.
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If you would like more information about this topic or further project description on PIN’s ICT Policy Office, please visit www.pinigeria.org. For more information please contact: King James, Project Manger, ICT Policy on +234 9 291 63 01, or e-mail info@pinigeria.org