Freedom of Information Act
This Act makes public records and information more freely available, provide for public access to public records and information, protect public records and information to the extent consistent with the public interest and the protection of personal privacy, protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorization and establish procedures for the achievement of those purposes.
Some values and principles that sustain a viable institutional FOIA culture are as follows:
- The task of effectively discharging the proactive disclosure obligation under the FOIA or answering applications for information promptly is a shared responsibility within the relevant institution.
- Ensure that people in your institution as well as members of the public know who is responsible for dealing with applications for information under the Act.
- Transfer without delay any request for information which is not your responsibility.
- keep, organize and maintain records in such a way that helps in ensuring that information or records can be effectively preserved, quickly identified and retrieved.
- Remember that the 7-days time limit begins as soon as a request for information or record is received by a public institution. Within this period a public institution must either provide the information or explain in detail, why it is unable to do so based on the provisions of the FOIA.
Does The Act Apply to my Institution?
The FOIA applies to all public Institutions. In view of sections 2(7), 29 (9) and 31 of the FOIA this means any:
- Legislative, executive, judicial, administrative or advisory body of the Government, including boards, committees or commissions of the State;
- Any subsidiary body of those bodies including but not limited to committees and sub-committees which are supported in whole or in part by public fund or which expends public fund;
- all companies in which the Government has a controlling interest and
- Private bodies providing public services, performing public functions or utilizing public funds.
What Record is Subject to the Act?
All information or records held by, or on behalf of, a public institution are all within the scope of the Act. The legislation applies regardless of the age, format, origin or classification of the said information or record in question. It also covers all forms of information or record, irrespective of the format in which they are kept, including, files, letters, databases, loose reports, e-mails, office notebooks, videos, photographs, wall charts, maps, etc. It further extends to closed files and archived materials as well as information in current use. However, Section 26 of the Act exempts certain materials that are already publicly accessible by other means from the application of the Act.
In considering an application under the FOIA, it is important to consider that other parts of your organisation may hold an information or record that might be relevant to the consideration of the application.
Public institutions should also note that in addition to the information or record produced by the institution, the FOIA would also apply to information or record received from other
institutions if the information or record so received is relevant to the application. In cases like this it is important to always consult with the originating public institution during consideration of the FOIA application.
The Right to Information Under the FOIA
Sections 1 and 2 of the FOIA establish the right of any person to apply for information or
records in the possession of a public institution. Generally, these rights are:
- The right to access or request any information or record that is in the custody or
- possession of any public institution or private bodies providing public services,
- performing public functions or utilising public funds.
- The right to be told whether the information or record exists.
- The right to have the requested information or record released, if the information or
- record is in the custody or possession of a public institution.
- The right not to demonstrate any specific interest or purpose in the requested
- information or record.
- The right to receive information that public institutions are obliged to proactively disclose under the Act.
- The right to take legal action in Court to compel any public institution to comply with the provisions of the Act, including discharging their proactive disclosure obligations under the Act.
The Obligations of Public Institutions
The right of access to information creates corresponding obligations on the part of Public Institutions. Apart from the obligation to release a record or information in its custody there are obligations that are not contingent on any request for information. These relate to the organization and maintenance of records and the obligation to publish certain categories of information proactively.
The Obligation To Keep, Organize and Maintain Records In Line With The Public
Access Objectives of the FOIA.
Under Sections 2 (1), (2), 9(1) and 9(2), a public institution must ensure that it keeps, organizes and maintains information or records about all its activities, operations and businesses in a way and manner that facilitates the public’s right to access such information or records that are in its custody.
It is an offence under the Act for any officer who has custody of a record to willfully alter, doctor or destroy the record. Anyone found guilty of any one of these offences is liable to a minimum term of imprisonment for one year. There is no maximum ceiling for sentencing for any of the aforementioned offences and there is no option of a fine.
In view of these provisions it is incumbent on public institutions to ensure that adequate measures for safeguarding against the tampering of records are observed.
Proactive Disclosure of Information By Public Institutions
Under the FOIA, public institutions must routinely publish certain information on an ongoing basis. This obligation is separate from the duty to make information available in response to applications for information under the Act.
The minimum information which must be proactively disclosed is listed in Section 2 (3) of the Act. Every public institution must make available any information that is listed above except:
- the institution does not hold this information;
- the information would be exempt from disclosure under one of the exemptions found in the Act.
The Act requires public institutions to proactively disclose diverse classes of information/records. Details of these classes of information/records are expressly provided in Sections 2(3) (a) – (f), (4) & (5).
The records that are to be proactively disclosed are divided into 3 broad categories:
- Descriptive Information: The first group or category relates to information/records that are meant to be described. These are provided in Section 2(3)(a) & (c). They include information about what the institution does, its responsibilities, organogram and the functions of each unit appearing in the organogram. It also includes information relating to final opinions given when adjudicating cases in such institutions and the orders made in such cases.
- List or enumeration of records: The Second group or category deals with the classes of information or records that are to be listed. These can be found in Section 2(3)(b) & (e). It includes the list of all classes of records/information held by the institution, including all manuals, guidelines & other documents which the institution uses in discharging its duties on a daily basis. Also included in the Second category is the list of files containing applications for contracts, permits, licenses, agreements entered into by the institution with other public or private institutions. Studies, reports or publications prepared for the institution by any independent contractor.
- Actual Records/Data: The third category relates to information/records whose details are actually meant to be proactively disclosed by the institution. These are contained in Section 2(3)(d) & (f). Examples include:
- Substantive rules of the institution;
- The names, titles, dates of employment and salaries of staff of the institution;
- Information relating to the income and expenditure of the institution;
- Final planning policies, recommendations and decisions of the institution;
- Factual reports, inspection reports, studies and other publications either
undertaken by the institution directly or done on its behalf by others contracted by it;
- Statements and interpretation of policies that have been adopted the institution;
- Names of officials attending proceedings of the institution and the records of voting in such proceedings;
- The rights of the public institution or of any private person;
The contact details of officers of the institution to whom members of the public are to direct their request for information
Mode of Proactive Disclosure
All information or records that public institutions are obliged to disclose proactively, are to be made readily available to the public. They are also to be disseminated widely using various information dissemination channels, including printing hard copies, through print and electronic media, as well as through online channels (i.e. the internet). You should ensure that copies of these publications are available in all the offices of your institution and that whenever contents change or are revised they are updated and the revised copies made available to the public.
You should also note that failure to proactively disclose information could result in an action for enforcement.
What Is an Application for a Record (“FOIA Application”)?
- There is a difference between an application under the FOIA and routine correspondence. Any request for information that can be provided without any question –
- such as recruitment brochures, leaflets, press releases and the text of public speeches – should be treated as normal and routine correspondence. In general, requests between Public Institutions are not FOIA requests.
On the other hand, any application for information or record that needs to be actively or seriously considered should be formally treated as an application under the Act especially if it seems likely that the requested information may not be disclosed. Accordingly, such application should be formally recorded, and treated as an application under the FOIA.
NOTE: AN APPLICATION UNDER THE FOIA DOES NOT NEED TO BE MADE IN WRITING, AND AN APPLICANT DOES NOT NEED TO DEMONSTRATE ANY SPECIFIC INTEREST OR MOTIVE IN THE INFORMATION APPLIED FOR.
The FOIA Application And Timelines
Under the Act there is a requirement to provide a substantive response to any application for information promptly and in any event within 7 days. There is some scope to extend this period by a maximum of 7 days IF: the requested information is for a large number of records; and the consultations that are necessary to comply with the application cannot be reasonably completed within the initial 7-day period.
NOTE: A notice of this extension informing the applicant that he or she has a right to have the decision to extend the time limit for(either positively or negatively) responding to the applicant’s request for information, reviewed by a Court should be provided to the applicant within THE INITIAL 7 days.
If the application needs to be transferred to another institution under section 5, the transfer should be done as quickly as possible in any case not later than the initial 7 days and notice of the transfer and the right of judicial review must be given to the applicant within this period.
The Interpretation Act
In light of section 15 of the Interpretation Act 1990: The 7-day timeline commences on the day after the FOIA Application is received by the public institution.
- In counting 7 days any holiday shall be left out in computation of the period.
- Holiday” means a day which is a Sunday or a public holiday.
NOTE: YOU SHOULD NOT IGNORE A FOIA REQUEST. A FAILURE TO RESPOND WITHIN THE TIME LIMIT RAISES A PRESUMPTION OF REFUSAL UNDER THE ACT AND CAN LEAD TO LITIGATION (see section 7(4))
Advice and Assistance Under FOIA
An application under the FOIA will generally be made in writing although this is not required under the Act. However, Illiterate or physically challenged (disabled) persons can still apply for information under the Act by making an oral application for information to any public institution. The Act ides that authorized officers of a public institution must assist such applicants by transcribing such oral applications into written form and making a copy of such written application available to the applicant.
It is advised that in such cases the FOIA Official should ensure that the transcription is read over to the applicant, and a statement is made on the application to the effect that, “THE APPLICATION HAS BEEN READ TO THE APPLICANT AND THE APPLICANT IS SATISFIED THAT IT IS A TRUE AND ACCURATE REPRESENTATION OF THE ORAL FOIA APPLICATION”.
Written applications may be transmitted electronically (email), by courier, post or delivery in person. To facilitate requests made via email, public institutions are advised to dedicate an email address which should be adequately publicised and should be configured to automatically generate an acknowledgment/receipt of the request.
Consultations with the Applicant
If the FOIA application is unclear, it is important to urgently consult with the applicant.
The key requirement is to establish a dialogue with the applicant. If clarification of the application is needed in order to identify and locate the information. This must be initiated promptly. NOTE that the clarification process should as much as possible be concluded within the 7-day period stipulated by the Act It will be helpful to inform the applicant about the information that is readily available, or to explore ways in which an application could be made more specific. A written record of all conversations with the applicant should be kept and also made available to the applicant, as the case may be.
The fee chargeable under the FOIA is limited to the standard charges to photocopy and transcribe the records where necessary. Where the cost of copying or transcription is negligible or where the cost of collecting or recovering the fees would be equal to or greater that the amount being collected, you may provide the information at no cost to the applicant. The scale of fees in the schedule to these Guidelines are indicative of standard costs of transcription or duplication.
Nepc Response Process
Generally, what the NEPC does when it receives an application under the FOIA is any/some of the listed stages depending on what information is being sought and they are as follows:
Register and record the application to note the date it was received. Where the application is submitted by the applicant personally an acknowledgment should be given to the Applicant and a registry record created for the application.
Read the correspondence and decide whether it constitutes a request or not and if the Council holds the Information, what it relates to and whether or not it needs to be transferred to another public institution. If so, we don’t delay as the Act states that the application must be transferred to another public institution with a greater interest in the requested information between 3 days and 7 days from the date when the application is received.
Record: Due to the possibility of legal action before the Courts, it is important to maintain a formal system of making note of all FOIA applications and keeping a record of all key actions taken in dealing with the application.
Responsibility: Any application received by the Council is quickly as possible brought to the notice of the appropriate department within the institution.
Retrieve: You need to retrieve and consider all the relevant information subject to the FOIA application.
Refer to others: Where necessary, we consult with other officials both within our institution and externally, especially with the Ministry or government department that specialise in, or are primarily responsible for the information. Remember that sometimes it is necessary to seek specialist advice on the disclosure of information and the balance of public interest.
Redact and separate: Some records may contain both disclosable and exempt information. Section 18 of the Act permits the extraction of disclosable information from other information in a record that is either exempt or not relevant; this is known as redaction.
Redaction can be made by deleting or blocking words, sentences, paragraphs and whole sections of record. Therefore any potentially sensitive information not relevant to the request or for which disclosure has not been authorized should be removed or redacted in the copy sent to the applicant. This will involve going through a document line by line.
Review: Once the response to a request has been prepared, this will need to be reviewed by someone who has the necessary authority to release or refuse to disclose information. THIS WILL INVARIABLY BE THE FOIA POINT OF CONTACT OR HEAD OF UNIT. The process for authorizing disclosure of information should be specified in local instructions.
The use of exemptions to withhold information should be approved at the appropriate level within the public institution.
Reply: Once the necessary approval to disclose has been secured, the reply is sent to the applicant. Replies is in writing. We ensure that the reply is filed, along with an exact copy of any enclosures.
Release to Publication Scheme under Section 2: After disclosure, it is considered whether or not the information provided is likely to be of general public interest. If so, it is considered whether it may be included in the Council’s publication as part of the materials that have been proactively disclosed through various communication medium including through the Council’s website.
Exemptions Under the Act
Applications for records should be granted and disclosed whenever possible. However, the Act also recognizes that there are occasions where disclosure of information is inappropriate. As a result, the Act contains Eight issue-based exemptions that may apply to justify a refusal of an application under the FOIA.
The exemptions under the Act are contained in Sections: 11, 12, 14, 15, 16, 17, 19 and 26 of the Act These exemptions can be broadly classified into two types:
Unqualified Exemptions Sections 15 (2), 16 and 17 are Unqualified Exemptions.
Refusal of Access To Information
The reasons for refusing to provide an applicant with access to information or record(s) under the FOIA must be explained in a Refusal Notice, which should generally be issued within the 7-day period provided by the Act. It is not sufficient for your reply to simply include a broad statement such as: “injurious to the conduct of International Affairs and Defence”. As a minimum, you must identify a specific exemption as the basis for withholding information and explain why it applies. The applicant must also be informed about the right to challenge the refusal and have it reviewed by a Court.
(a) To facilitate their ability to proactively disclose information, the NEPC has designated appropriate staff and saddled with the responsibility of delivering on this mandate, in addition to managing the entire spectrum of the FoI process. This is essential for the smooth operation of the FoI law. Support for this requirement is found in Sections 2(3) (f), 3(4) & 29(1) (h) of the FOIA.
NEPC Level of Compliance
The first FOI request that came to the Council was received February, 2015. Since then, the Council has handled over 10 FOI request.