Another Ikeja High Court judge, Justice Iyabo Akinkugbe, was today
inducted into the “FOI Hall of Shame” for her recent decision which has
the effect of barring requesters who have been ignored by public
institutions to which they applied for information under the Freedom of
Information Act, 2011, from approaching the court for a judicial review
as provided by the Act.
In
a statement in Lagos announcing the choice of Justice Akinkugbe as this
week’s inductee into the FOI Hall of Shame, the Executive Director of
Media Rights Agenda (MRA), Mr. Edetaen Ojo, said her July 13, 2017
ruling “whether motivated by a desire to protect a Lagos State
Government agency or by genuine ignorance of the applicable legal
principles, has such profound implications that it would render the
right of access to court by persons wrongly denied information
completely meaningless.”
The
ruling arose from a November 4, 2016 freedom of information request
made by MRA to the Lagos State Primary Health Care Board in which the
organization sought, among other things, details and copies of plans put
in place to provide Araromi Zion Estate located in the Akiode Area of
Ojodu LCDA in Ikeja with healthcare services; details of any assessment
carried out on the health needs of the Estate and copies of relevant
research or assessment reports; the timeframe for the implementation of
any proposed plans and details of the budget for the implementation of
the plan.
Following
the failure of the Health Care Board to respond to the request after
the timeframe provided in the FOI Act had lapsed, on December 6, 2016,
MRA filed an application at the Ikeja Judicial Division of the Lagos
State High Court seeking leave of the court to compel the Board to
comply with the provisions of the FOI Act and provide MRA with the
information requested.
Despite
the mandatory requirement of the FOI Act that cases arising from the
denial of access to information should be heard and determined
summarily, MRA’s application for leave was not fixed for hearing until
June 13, 2017, more than seven months after the motion exparte for leave
was filed.
In
her ruling on July 13, 2017, Justice Akinkugbe not only denied the
MRA’s application for leave, she also expressly refused the substantive
application for an order of mandamus to compel the Primary Health Care
Board to disclose or make available to MRA the information requested,
when the application for an order of mandamus had not yet been argued as
she had not granted leave.
Justice
Akinkugbe ruled that having “carefully considered the facts before the
court”, she was of the view that MRA’s application was “premature”
because the Lagos State Primary Health Care Board had not issued the
organization with a written notice stating that it would not grant
access to the record or information applied for, had not stated the
grounds for the refusal or the specific provision of the FOI Act that it
relied upon, and that MRA has a right to challenge the decision
refusing access and to have it reviewed by a court.
Even
in the face of the clear provisions of the FOI Act which gives public
institutions seven days within which to respond to a request for
information and states that where the institution fails to give access
to the information or record applied for within this time limit, the
institution is deemed to have refused to give access, Justice Akinkugbe
accused MRA of putting the “cart before the horse”.
She
held that: “There has to be a written notice stating grounds for
refusal as this is a precondition that must be complied with.”
Mr
Ojo observed that “It is a tragic irony that a judge before whom a
litigant is seeking a declaration that the failure or refusal of a
public institution to give a written notice that access to all or part
of the information requested will not be granted violates Section 4(b)
of the FOI Act is saying that unless and until the litigant receives
such a notice from the public institution, which in this case is clearly
not likely to happen, it cannot approach the court to complain.”
According
to him, “The implication of the ruling is that for as long as the
public institution fails or refuses to give the notice, MRA cannot
exercise its right of access to court. Such reasoning can only be
described as perverse. It cannot be right in any system of justice and
defies commonsense that the blatant disregard for the clear provisions
of the Law by a public institution should be used as the reason for
denying redress to a litigant who seeks the protection of the court for
the violation of his rights from the same unlawful and unjustifiable
action of the public institution”
Media
Rights Agenda launched the “FOI Hall of Shame” on July 3 to draw
attention to public officials and institutions that are undermining the
effectiveness of the Freedom of Information Act, 2011 through their
actions, decisions or utterances.
For further information, please contact:
Ridwan Sulaimon
Programme Manager, Freedom of Information
Media Rights Agenda, Lagos
E-mail: sulaimon@mediarightsagenda.org
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