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 (FOI) Act, 2011, from approaching the court for a judicial review as provided by the Act.
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.
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 time frame 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”
