The Legal Relationship Between National Security and Foi Act
By Yunus Abdulsalam
There is no gain saying in the fact that open and accessible Government is the hallmark of democracy. It is in this context that the right of access to government information is cardinally important for public oversight. After all, since the function of government is in furtherance of public interest, then confidentiality in government affairs should be ordinarily disallowed.
In Nigeria, the enactment of the Freedom Of Information Act (FOI) has impressively bolstered the right to have access to information on government affairs. Courtesy of the Act, higher disclosure about the conduct of government business is enhanced as court of law can be easily approached when such disclosure is requested for but denied.
However this right is not absolute. Therefore, the right to have access to information tolerates exceptions. One of such exceptions includes sensitive security information which is technically refers to as “Classified Information”.
Of course protecting this type of information from inordinate access may be quite challenging as there is fundamental need to balance the right of the public to know as against the sanctity of our corporate existence and National security.
Under the Nigerian jurisprudence, the law is that access to information that borders on National security is not absolute. In fact, unlike other species of information, information relating to national security is not for public consumption otherwise it has the potential to damage the spinal cord of the corporate existence of any given country.
By the way what really constitutes information bordering on National security? An elaborate answer to this question is contained in part II of The Global Principles on National security and The Right to Information (THE TSHWANE PRINCIPLES) of 2013. Where information bordering on National security may include-
Information about on-going defense plan or operation
Information about the production of capabilities or use of weapons system and other military system including communications system
Information concerning National security matters that was supplied by a foreign state or inter-governmental body with expectation of confidentiality and other diplomatic communications in so far as they concern National security.
Back from the needful digression, it is instructive to emphasize that the FOI Act itself acknowledges some categories of information which should be exempted from disclosure. Specifically, sections 11-17 exempt certain information and record from public access. Such information includes records the disclosure of which could damage the conduct of International affairs and defense of Nigeria. It also includes information and records pertaining to professional privileges which include Journalism confidentiality. Legal practitioners as well as health worker privileges are similarly exempted.
The above position of law has received judicial blessing in the unreported case of Boniface Okezei V AGF & EFCC (FHC/L/CS/S14 2012) where the court admitted that public institution is entitled to protect information that is properly classified in the interest of National security.
In conclusion while the advent of FOI has created a challenging atmosphere for management of National Security Information, the position of law is settled that Freedom of access to Information, though legally enforceable, is not absolute. As for sure the law provides for protection of certain classes of information the disclosure of which could be fatal our National security.
Yunus Abdulsalam, a legal practitioner wrote from Abuja.