2.1. International Best Practice

In light of the importance of ensuring public access to environmental information as discussed above, it is no surprise that a large number of international environmental regimes contain right-to-know provisions.^{Footnote 12} Examples of such (binding international) regimes that have been ratified by Nigeria include:

• • the Convention concerning the Protection of the World Cultural and Natural Heritage (WHC);^{Footnote 13}

• • the United Nations (UN) Framework Convention on Climate Change (UNFCCC);^{Footnote 14}

• • the UN Framework Convention on Biological Diversity (CBD)^{Footnote 15} and its Cartagena Biosafety Protocol;^{Footnote 16} and

• • the UN Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification Particularly in Africa (UNCCD).^{Footnote 17}

In addition, notable international soft law instruments containing provisions calling on states to ensure public access to environmental information, which have been signed and approved by Nigeria, include the World Charter for Nature,^{Footnote 18} Agenda 21,^{Footnote 19} and the Rio Declaration on Environment and Development (Rio Declaration).^{Footnote 20}

It is useful to reflect briefly on the legal status of Principle 10 of the Rio Declaration which, among others, calls on states to ensure that the public has appropriate access to environmental information held by public authorities. This principle has helped to crystallize and to lend significant weight to the theme of public access to environmental information. The significance of Principle 10 in the field of international environmental law thus cannot be overstated. Importantly, it has inspired similar provisions in many international environmental regimes, including the popular UN Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters (Aarhus Convention).^{Footnote 21} Even international institutions such as the World Bank,^{Footnote 22} the World Trade Organization (WTO),^{Footnote 23} and the African Development Bank^{Footnote 24} have had their programmes influenced by Principle 10. Although several countries admit that more still needs to be done in this regard, it has been acknowledged that Principle 10 has objectively helped to improve national legislation and practice in environmental democracy.^{Footnote 25} Thus, Principle 10 has been kept on the front burner, and its status has risen far beyond that of a mere soft law.

Its importance has been underlined by Händl, who has consistently argued that given the human rights foundation of Principle 10 and its widespread implementation, its significance ‘ha[s] coalesced to the point where the normative provisions of Principle 10 must be deemed legally binding [internationally] … [it] arguably represent[s] established human rights’.^{Footnote 26} In a similar vein, there is increasing support for the notion that, since Principle 10 is widespread in laws and has gained wide acceptance among states (opinio juris), it has or may have acquired the status of ‘customary international law’^{Footnote 27} binding on all states. The International Court of Justice (ICJ) recently held in the Pulp Mills Case ^{Footnote 28} that an environmental impact assessment (EIA) in a transboundary context (which, as a general principle, should necessarily involve public consultation and access to related environmental information^{Footnote 29}) is now considered a requirement of ‘general international law’ (and not merely a treaty-based obligation) on the ground that the practice ‘has gained so much acceptance among States’.^{Footnote 30} While the actual legal status of Rio Principle 10 may be debatable, it is nonetheless sufficient to argue here that, at a minimum, it is a fast-emerging rule of customary international law, especially as regards access to environmental information.^{Footnote 31} The rising status of Principle 10 is arguably sufficient to place a strong moral and (quasi) legal obligation on states like Nigeria that are committed to such regimes to expeditiously ensure that their laws and practices are in consonance with the aspirations of those norms.

However, despite the fact that the Rio Declaration and the regimes mentioned above broadly indicate best practice with respect to public access to environmental information, their provisions on the subject are mostly general and brief. Consequently, it is necessary to unpack these provisions in order to truly understand their relevance and enable a useful discussion of what should be done in a country such as Nigeria to fulfil the aspirations of these provisions. To a reasonable extent, the Aarhus Convention has achieved this. It is argued that the Convention has reorganized and clarified the legislative and practical steps required to successfully implement the more general access requirements in the aforementioned international regimes. Thus, the provisions of the Aarhus Convention constitute a plausible benchmark against which to assess Nigeria's compliance with its international law commitments in the field of access to environmental information, even though Nigeria is not a party to the Convention.^{Footnote 32} As such, in spite of the Aarhus Convention not being a formal source of law for Nigeria, it arguably bears weight in the country’s political and legal systems.

Supporting the above perspective, former UN Secretary-General Kofi Annan has posited that ‘[a]lthough regional in scope, the significance of the Aarhus Convention is global’ and it constitutes ‘a possible model for strengthening the application of Principle 10 in other regions of the world’.^{Footnote 33} To facilitate this, the Aarhus Convention provides for some flexibility in deciding how some of its obligations will be implemented ‘in view of the varying legal systems and governance capacities of various Parties across the UNECE region’.^{Footnote 34} The potential of the Aarhus Convention to enable countries around the world to keep up with international best practice with respect to public access to environmental information is widely recognized^{Footnote 35} by (among others) the United Nations Environment Programme (UNEP), which has praised the Convention for being ‘an advanced articulation of Rio Principle 10’.^{Footnote 36} Consequently, a trend has emerged whereby states that have not even signed the Convention look to it for guidance in drawing up their environment-related access laws or evaluating them.^{Footnote 37} Examples include Brazil^{Footnote 38} and Mauritius.^{Footnote 39} It has also been noted that ‘[a] number of other regions of the world show a strong interest in the Aarhus Convention and are discussing the development of similar obligations’.^{Footnote 40}

There are further arguments to support the global significance of the Aarhus Convention and, indeed, its significance for Nigeria. The most important case to substantiate this argument is probably Taskin v. Turkey. ^{Footnote 41} In this case, the fact that Turkey was not a party to the Aarhus Convention did not stop the European Court of Human Rights (ECtHR) from directly reading the provisions of the Aarhus Convention into the European Convention on Human Rights ‘in a particularly extensive form’ in deciding the matter.^{Footnote 42} It is thus not surprising that the Aarhus Convention was embraced and recognized as ‘a model of a public participation regime’^{Footnote 43} in a UN Economic Commission for Africa (UNECA) report on improving environmental public participation in Africa. Similarly, a study commissioned by the African Union to help African governments implement Article 23 (‘Public Awareness and Participation’) of the Cartagena Protocol on Biosafety,^{Footnote 44} has expressed the benefit of ‘[d]raw[ing] up an African convention similar to the Aarhus Convention on public participation or adopt[ing] the Aarhus Convention’.^{Footnote 45}

A further testament to the expansive influence of the Aarhus Convention is that new international environmental instruments are now being inspired by the Convention. One such important instrument is the 2010 UNEP ‘Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters’ (Bali Guidelines),^{Footnote 46} which have been adopted by the UNEP Governing Council^{Footnote 47} and which bear fundamental similarities to the Aarhus Convention. Notably, the ‘Aarhus-like’ Bali Guidelines were said to be primarily for developing countries (like Nigeria), to help them to implement their commitments under Rio Principle 10. The same applies to the draft Commentary to the Bali Guidelines which, in addition, makes explicit reference to portions of the Aarhus Convention. Although the text of the Commentary was not negotiated by governments or adopted by the UNEP Governing Council, it was developed by UNEP ‘taking into account the comments received from Governments and civil society groups from around the world’.^{Footnote 48}

The final point to emphasize is that a straightforward and general comparison with the Aarhus Convention is arguably valuable in its own right, given its role in the field as an exemplary international instrument and law reform tool. This is so in light of the developing notion of the transnationalization of environmental law, especially considering that environmental law is itself ‘inherently polycentric and multicultural’ in nature and deals with subject matters that often extend beyond national boundaries.^{Footnote 49} It is argued that, as part of the notion of transnational environmental law, certain environmental legal principles and standards acquire authority not by virtue of domestic or international enactment, but by indirect influence on the sources of law formally recognized in a national legal system and other influential factors. These influential factors include basic usefulness, esteem, explanatory power, and overlap and affinity with officially recognized legal norms.

This offers an explanation as to why states like Brazil and Mauritius have taken to improving their legal regimes and practices with the guidance of the provisions of the Aarhus Convention despite not being parties to it. It is arguably also the reason why the ECtHR confidently applied the requirement of the Convention to Turkey despite it not being a party to the regime. Further support can also be found in the fact that in Nigeria, for example, ‘mere compliance with existing municipal law is no longer acceptable to environmentally concerned communities as a good enough justification by government and developers for their actions’;^{Footnote 50} rather they strive to hold the government and developers to account based on ‘better laws’ operational elsewhere, such as the Aarhus Convention. Environmental rights activists in Nigeria operate on similar standards and use the Aarhus Convention and other legal norms as a guideline for their work and campaigns, in so far as they relate to environmental procedural matters.^{Footnote 51}

It is in light of the discussion above that references to international best practice principles in subsequent parts of this article will make central use of certain provisions of the Aarhus Convention. The following exploration will demonstrate how some of these provisions overlap, emphasize or amplify existing provisions of other international environmental regimes. This constitutes the comparative basis that will contribute to providing a useful assessment of the value or adequacy of the relevant Nigerian legislation.

2.2. Nigerian Legislation

Although Nigeria has ratified and committed itself to several international environmental regimes, parts of which require Nigeria to guarantee public access to environmental information, for many years it had not given domestic effect to these regimes by failing to put in place the required legal mechanism.^{Footnote 52} In fact, a recognized general public right of access to environmental information was non-existent in Nigeria until recently. This was because of a plethora of colonial laws^{Footnote 53} that remained operational even after Nigeria’s independence in 1960 and its formal return to democracy in 1999 following 28 years of military rule. Principally, the Official Secrets Act^{Footnote 54} made it a crime for civil servants to give out classified official information, and for anyone to receive or reproduce such information without government authorization.^{Footnote 55} The most restrictive aspect of this Act, which prohibited the transmission of ‘classified matter’, was the wide and vague^{Footnote 56} interpretation given to the term ‘classified matter’. Its implementation meant that any government information could fall within the purview of the Act. In practice, true to the spirit of the Act, nearly all information held by public institutions was strictly classified: newspaper cuttings already in the public domain were still included in classified government files, and government departments withheld information from each other and sometimes even from the National Assembly (Parliament).^{Footnote 57} In addition, the Nigerian Constitution does not expressly confer a right on the public to access environmental information held by public institutions. None of the provisions – including section 39(1), which stipulates the right to ‘receive and impart ideas and information without interference’ – have been officially recognized or interpreted by a court as including such a right of access.

The atmosphere of widespread and perverse secrecy in Nigeria took its toll on the environment and public well-being. The Niger Delta region of Nigeria – where crude oil exploration and exploitation have devastated the environment, especially through frequent oil spills and continuous gas flaring – is a telling example. Many people in this region drink, cook and wash in polluted waters; many eat fish contaminated with crude oil and breathe in gas-polluted air, leading to health problems that could have been avoided.^{Footnote 58} These problems have persisted on such a large scale partly because many inhabitants are unable to make informed personal choices since, according to Amnesty International, ‘they have almost no information on the impacts of pollution^{Footnote 59} … [as] no law in Nigeria compels the publication of basic environmental monitoring data’.^{Footnote 60} This lack of access to environmental information has also contributed to fuelling serious conflicts between communities, governments and private corporations in the region.^{Footnote 61} It has rendered meaningless public participation in environmental decision-making processes and has negatively impacted on the ability of communities to seek legal redress for harm caused by extractive projects.^{Footnote 62}

The plight of the inhabitants of the Niger Delta came to the fore in the case of Social and Economic Rights Action Centre (SERAC) and Another v. Nigeria ^{Footnote 63} (the Ogoniland case), adjudicated by the African Commission on Human and Peoples’ Rights. In this case, the applicants alleged that the Nigerian government had withheld from the Ogoni communities information on the dangers created by crude oil exploitation.^{Footnote 64} On this point, the Commission recognized the procedural aspects of Articles 16^{Footnote 65} and 24^{Footnote 66} of the African Charter on Human and Peoples’ Rights (African Charter)^{Footnote 67} – ratified by Nigeria – and held that in order for states to comply with the ‘spirit’ of those provisions, which the Nigerian government had failed to do, they must provide and ensure public access to environmental information, especially for communities exposed to hazardous materials and activities.^{Footnote 68} Relying on the fact that the decision was not legally binding (given the limited powers of the Commission^{Footnote 69}), the Nigerian government failed to put in place any mechanism aimed at complying with it. Moreover, despite Articles 16 and 24 of the African Charter being part of the implementing legislation in Nigeria,^{Footnote 70} the Commission’s radical interpretation of the provisions had no noticeable formal impact in Nigeria.

The above developments reignited efforts to advocate for freedom of information in 1993. This advocacy ‘originated as a citizen-led demand and was for the most part led by ordinary folks’.^{Footnote 71} Nigerian citizens put together a draft FOI Bill and submitted it to the National Assembly in 1999. ‘[T]he bill excited strong passions and strong suspicions’.^{Footnote 72} Nevertheless, on 24 May 2011, after eleven years of legislative dithering and several revisions, the National Assembly adopted the final version of the FOI Bill. The Bill was signed into law by the Nigerian President on 28 May 2011.

Nigeria’s new FOI Act signals a significant legislative shift away from the era of legalized secrecy in favour of openness. As the Long Title of the FOI Act states, the ‘Act makes public records and information more freely available, [and] provide[s] for public access to public records and information’ held by a ‘public institution’;^{Footnote 73} ‘any person’ (which includes groups and corporations) is invested with the right of access.^{Footnote 74} Importantly, the FOI Act takes priority over the Official Secrets Act and any other law relating to access to information.^{Footnote 75} Contravention of the FOI Act by public institutions or officers is criminalized,^{Footnote 76} and applicants are entitled to judicial review of the decisions of public institutions on their applications.^{Footnote 77} The FOI Act applies to all states in the Federal Republic of Nigeria.^{Footnote 78} As is the case in many countries,^{Footnote 79} the FOI Act does not distinguish ‘environmental information’ from other types of information held by public institutions in Nigeria, which ‘includes all records, documents and information stored in whatever form’.^{Footnote 80}

Nigerian environmental law researchers have expressed high hopes that the passage of the FOI Act will substantially improve public access rights to environmental information in their country.^{Footnote 81} The Nigerian government claims that the Act is ‘consistent with international best practice’.^{Footnote 82} The following sections will generally evaluate the extent to which these claims and aspirations are met by the FOI Act in view of some international best practice principles that are relevant to Nigeria, and suggest improvements to the law where necessary.

3.1. The Request and the Right of Access

In Nigeria, section 1(1) of the FOI Act provides that ‘... the right of any person to access or request information ... which is in the custody or possession of any public official, agency or institution howsoever described, is established’. This key provision exemplifies best practice as reflected in Principle 10 of the Rio Declaration, Article 4(1) of the Aarhus Convention, the Bali Guidelines,^{Footnote 83} and a host of international environmental instruments.^{Footnote 84} However, unlike the Aarhus Convention and other instruments regulating best practice which remain silent on the specific issue of ‘oral application’,^{Footnote 85} the FOI Act erases all doubt by expressly giving the applicant the option of making an ‘oral application for information’ (which is useful for those who are illiterate). The relevant official of the public institution ‘shall [then] reduce [the oral application] ... into writing ... and shall provide a copy of the written application to the applicant’.^{Footnote 86} In addition, in line with recommendations in the draft Commentary to the Bali Guidelines,^{Footnote 87} the Act goes further than the Aarhus Convention by expressly widening opportunities for access for illiterate and disabled applicants by giving them the right and option to ‘make an application through a third party’.^{Footnote 88}

Furthermore, sections 1(1) and 3 of the FOI Act, which deal with applications for access to (environmental) information, seem also to accommodate electronic applications, in line with Article 4(1) of the Aarhus Convention and similar regimes. This should certainly be encouraged as it can aid the removal of barriers to access – such as difficult access to the offices of public institutions as a result of distance and the financial cost of making the trips – and make access easier and cheaper^{Footnote 89} for the substantial and rapidly growing section of the Nigerian public that have adequate internet access and technological skills.^{Footnote 90} Admirably, paragraph 1.9 of the FOI Act Implementation Guidelines^{Footnote 91} provides that information requests may be sent to email addresses which should be publicized by public institutions and configured to automatically generate receipts of the request. The Attorney-General, charged with implementing the Act,^{Footnote 92} has also directed that ‘public institutions must establish a telephone line or internet service that persons requesting information under the Act may use to inquire about the status of their request’.^{Footnote 93} It is hoped that public institutions will take these directives seriously and will allocate adequate resources to progressively make them a widespread reality.

Furthermore, Article 4(1)(b) of the Aarhus Convention provides the applicant with a general right to request that environmental information be made available in a specific form, even if it differs from that in which it is currently stored.^{Footnote 94} A similar provision is set out in the draft Commentary to the Bali Guidelines.^{Footnote 95} Based on this right, the Aarhus Convention Compliance Committee recently held Spain to be in non-compliance when it provided a paper copy of a document containing 600 pages at a cost of €2.05 per page instead of providing it in a compact disc at a cost of €13, as requested.^{Footnote 96} This case highlights some benefits of providing the public with input on the form in which the information is provided, which may include ensuring cost- and access-effectiveness (including for the disabled), as well as improved convenience for the public and possibly also for the public authorities. Considering these benefits, it is regrettable that the FOI Act does not directly provide (environmental) information applicants with a right similar to that in Article 4(1)(b).

The only suggestion of a similar right in the FOI Act is to be found in section 8, which provides for fees to be charged for ‘document duplication and transcription where necessary’ (emphasis added). It would be preferable for the Act to provide a more direct right, to make it easier for applicants to successfully rely on it. Nonetheless, the term ‘duplication’ still allows the public to request environmental information in a variety of forms, as indicated in the Schedule to the FOI Act implementation Guidelines. The same applies to ‘transcription’ used in this provision, which moreover arguably enables the public to request that environmental information be translated and made available in a language they understand. The language issue arguably is not covered in the Aarhus Convention as its Article 4(1)(b) appears to contemplate only ‘material form[s]’^{Footnote 97} and not immaterial forms such as ‘language’. Its existence, however, is an important matter in the Nigerian context, given the numerous native languages spoken in addition to the country’s lingua franca (English)^{Footnote 98} and the fact that a substantial number of people (especially in rural areas) are able to communicate effectively only in their native language.^{Footnote 99} Nigeria has acknowledged that the provision of environmental information in native languages is necessary for it to ‘attain full compliance with international regulations, standards and guidelines’ in the environmental law field.^{Footnote 100}

Lastly, unlike the Aarhus Convention – which obliges public authorities to assist and guide those seeking access to environmental information^{Footnote 101} – the FOI Act contains no such provision. This lacuna could mean that public institutions might be able to legitimately refuse applications for environmental information in cases where they could easily have assisted and guided the applicant in making an appropriate application. Again, this is an important issue in Nigeria, especially as the level of illiteracy is relatively high^{Footnote 102} and a reasonable number of applicants may well need some form of assistance and guidance in order to correctly apply for environmental information. A recent empirical study on India identified ‘no assistance in drafting and filing … requests’ as a major barrier to public access to information in the country.^{Footnote 103} So it may well be the case in Nigeria unless the legislative gap is filled. It would seem, however, that the Nigerian authorities have become aware of this problem and have taken steps to ‘patch up’ the gap with paragraph 1.10 of the FOI Act Implementation Guidelines, which urges public institutions to guide and assist applicants for information in making a viable application. Although welcomed, this provision is merely advisory and is subject to the whims of public institutions. It is therefore advisable for paragraph 1.10 to be entrenched in the FOI Act itself in order to prevent public institutions from being able to ignore it without legal consequences as this legislative change would go some way to removing the culture of secrecy which has existed for so many years.

3.2. The Response

3.3. The Charge

In accordance with best practice as reflected in Article 4(8) of the Aarhus Convention, the FOI Act provides for fees to be charged for supplying requested information and, according to section 8 of the Act, the ‘[f]ees shall be limited to standard charges for document duplication and transcription where necessary’. Obviously, activities involving public institutions searching for the information or the applicant examining the requested information in situ are not chargeable.^{Footnote 126} However, the wording of section 8 allows public institutions to transfer the entire cost of duplication and translation to the applicant, irrespective of how prohibitive the cost might be, and irrespective of the ‘affordability’ or ‘reasonableness’ of the cost of securing the environmental information.^{Footnote 127} This wording is arguably contrary to best practice, considering that (i) the Bali Guidelines provide for ‘affordable’ public access,^{Footnote 128} (ii) Article 4(8) of the Aarhus Convention allows for only a ‘reasonable amount’, and (iii) case law from the Aarhus Convention Compliance Committee^{Footnote 129} and the European Court of Justice (ECJ)^{Footnote 130} on the issue of ‘reasonable’ cost indicates that dissuasive charges, even if they are standard charges (as the FOI Act provides), are not in line with best practice. This is especially relevant in the Nigerian context where the poverty level is relatively high.^{Footnote 131}

International best practice anticipates that the public authority will pick up part of the costs incurred in administering the environmental information access law, especially where the original cost of access appears to be prohibitive. This ‘additional’ cost on public institutions is arguably offset by the enormous benefit that transparency brings to any society.^{Footnote 132} Furthermore, over time, as public institutions in Nigeria become more efficient in dealing with public requests and in properly organizing and maintaining all information in their custody ‘in a manner that facilitates public access to such information’ (following section 2(2) of the FOI Act), it is expected that the costs they bear will reduce.^{Footnote 133} It is also reasonable to expect that the continued advancement and employment of information technology will help to make it easier and cheaper for public institutions to provide information to the public.^{Footnote 134}

Furthermore, contrary to best practice as reflected in Article 4(8) of the Aarhus Convention, the FOI Act contains no provision for a schedule of charges, or similar, to be made available to potential applicants. In view of the benefits that a schedule of charges could deliver to the system of access to environmental information, including such an obligation in the FOI Act would be a welcome development. A schedule of charges could go a long way to help to protect against abuse and inconsistency in charging.^{Footnote 135} It is impossible to overstate the relevance of such a device in Nigeria where financial corruption is rife in public institutions. In addition, a schedule of charges has the potential to encourage the public to access information if they know in advance what it will cost.^{Footnote 136} Nevertheless, despite this lacuna in the Act, the Schedule to the FOI Act Implementation Guidelines contains a breakdown of the range of costs of the various methods of duplicating records – namely copying to compact disc or USB drive (if provided by the public institution), photocopying, scanning and printing – but it does not provide information about the cost of various types of transcription. It is advisable that the Schedule, supported by a binding provision in the FOI Act, be further developed to include this information.

Lastly, it is rather disappointing that the FOI Act does not provide for fee waivers as recommended by Article 4(8) of the Aarhus Convention. As the Aarhus Guide states, some countries may decide not to levy charges for ‘copies of a limited number of pages … for non-commercial use or for limited postage’.^{Footnote 137} Fee waivers would be invaluable in the case of environmental non-governmental organizations (NGOs), many of which have very limited funds, and members of the public who reside in some of the poorest regions of Nigeria. Generally, such waivers would serve to motivate the public to take advantage of the access rights granted by the FOI Act. The FOI Act Implementation Guidelines provide limited aid in this regard by advising public institutions that ‘[w]here the cost of copying or transcription is negligible or where the cost of collecting or recovering the fees would be equal to or greater than the amount being collected, you may provide the information at no cost to the applicant’.^{Footnote 138}

4.1. General Standards

It is generally accepted that the right of the public to access environmental information is not absolute; unrestrained access is ‘incompatible with realistic, efficient and practical governance’.^{Footnote 139} To curtail excesses that may arise from unchecked access, the right of access is usually limited by exemptions. In this case, best practice dictates that such exemptions be narrowly drawn so that the public may still enjoy reasonable access to environmental information.^{Footnote 140} To a fair extent, this standard is reflected by the exemptions in the Aarhus Convention,^{Footnote 141} which have been stated to be ‘undoubtedly more precise’ (compared with those that existed in Europe before the Convention) and to leave far less room for the arbitrary exercise of public authority discretion.^{Footnote 142}

Still, ‘[t]he best access to information legal regimes have a public interest limitation, or override, on all exemptions to disclosure’.^{Footnote 143} This best practice is reflected in the Bali Guidelines^{Footnote 144} and Article 4(4)(h) of the Aarhus Convention, which stipulates that all the grounds for refusal of access provided in Article 4(4) ‘shall be interpreted in a restrictive way’, ‘taking into account the public interest served by disclosure’ (that is, if the public interest in maintaining the exemption does not outweigh the public interest in disclosing the information, the information must be disclosed).^{Footnote 145} Thus, the fact that the requested information falls within an exemption does not in itself justify the immediate application of the exemption. The relevant public authority must carry out the necessary balancing exercise in accordance with the ‘public interest test’ to be able to properly determine whether or not it is right to invoke the exemption. The public interest test not only reduces the scope of the relevant exemption; it also reduces the risk of self-serving interpretations that may come with discretion as it relates to the exemptions provided,^{Footnote 146} and constitutes an important tool with which the courts/tribunals may overturn information application decisions that should have been decided in favour of the applicant had the balancing test been properly applied.

As expected, the FOI Act provides for some exemptions to the right of access to environmental information. But the important question is whether or not the exemption provisions are in line with best practice – that is, narrow enough to allow and sustain adequate access to environmental information, precise enough to curtail the arbitrary exercise of public authority discretion in a manner that would impede appropriate access, and adequately curtailed by a ‘public interest override’.

4.2. An Analysis of the Exemptions and the Override

Similar to best practice as reflected in Article 4(4) of the Aarhus Convention, the FOI Act allows public institutions to refuse an application for information in the following instances:

• • where its disclosure ‘may be injurious to the conduct of international affairs and the defence of … Nigeria’;^{Footnote 147}

• • where it contains records that, if disclosed, could potentially interfere with administrative or law enforcement proceedings conducted by any public institution, or could deprive a person of a fair trial or obstruct an ongoing criminal investigation;^{Footnote 148}

• • where the information contains personal details of an individual who has not consented to its disclosure;^{Footnote 149}

• • where the information contains confidential or proprietary trade secrets and commercial or financial information obtained from a person or business, or its disclosure may cause harm to a third party;^{Footnote 150}

• • where the information, if disclosed, would frustrate procurement or give an advantage to any person;^{Footnote 151}

• • where the information is subject to professional confidential privileges conferred by an Act;^{Footnote 152} and

• • where the information contains research material prepared by faculty members.^{Footnote 153}

The FOI Act, however, diverges from best practice by including an exemption that directly and negatively impacts on public access to environmental information and its benefits to society. Section 15(2) of the Act provides that ‘[a] public institution shall … deny disclosure of a part of a record if that part contains the result or product of environmental testing carried out by or on behalf of a public institution’ whether or not any interest is adversely affected.^{Footnote 154} The FOI Act does not provide any details as to the scope of the broad and ambiguous term ‘environmental testing’. The term may not only mean the testing of a product to determine its suitability in certain environmental conditions but could also mean its potential impact on the environment, or it could simply mean the testing of the quality of the environment, among others. This gap in the FOI Act leaves the interpretation to the discretion of public institutions, which they may choose to exercise in a manner that considerably limits public access to environmental information. It is submitted, therefore, that section 15(2) should be revised or struck from the Act as it runs contrary to both international best practice and the 1998 Nigerian National Policy on the Environment,^{Footnote 155} which arguably advocates wide access to environmental information.^{Footnote 156} The section could be replaced with an exemption similar to that set out in Article 4(4)(h) of the Aarhus Convention, which seeks to protect certain aspects of the environment where disclosure of information relating to it would adversely affect it.

Furthermore, it could be argued that a number of other exemptions under the FOI Act have been drafted too broadly and their operation has been left entirely to the discretion of public institutions. In line with best practice, some exemptions provide for a ‘public interest override’ to the effect that ‘an application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury that disclosure would cause’;^{Footnote 157} however, the section 15(2) ‘environmental testing’ exemption discussed above is not made subject to the public interest’ override, contrary to best practice. Similarly, the exemption on ‘research materials’ in section 17 fails to provide for the public interest override. In addition, even though the ‘personal information’ exemption in section 14 contains a public interest override in subsection 3, it largely nullifies the effect of the override by being made subject to section 14(2), which provides for public disclosure of personal information where ‘the individual to whom it relates consents to the disclosure’ or where ‘the information is [already] publicly available’. Indeed, the public interest override is needed when the individual to whom the information relates is yet to consent to its disclosure and the information is not publicly available.

The FOI Act Implementation Guidelines refer to the exemptions in sections 15(2) and 17 as ‘unqualified exemptions’, which ‘contain an inbuilt prejudice test’ (rather than a ‘public interest’ test).^{Footnote 158} This test means that ‘the harm to the public interest that would result from the disclosure of information falling within an unqualified exemption has already been established’.^{Footnote 159} This position is unacceptable as it falls below international best practice, especially as no authority can rightly foresee, in absolute terms, the fact that there would never be a stronger public interest which would warrant disclosure of exempted environmental information.

There is the further issue that even though section 1(1) of the FOI Act guarantees the public right of access to environmental information ‘[n]otwithstanding anything contained in any Act, law or regulation’, this may not apply to the Public Complaints Commissions Act (PCC Act) and the National Security Agencies Act (NSA Act), both of which contain general provisions empowering the bodies they create to withhold information from the public. These Acts are entrenched in the Nigerian Constitution (to which all laws are subject) by virtue of section 315, and this provision has not been amended in line with section 9(2) of the Constitution to exclude those Acts. To achieve international best practice, it is imperative that the PCC Act and the NSA Act be made subject to the FOI Act, even though most of the environmental information that they hold may legitimately fall within the exemptions pertaining to national security and enforcement procedures under the FOI Act. However, if they were made subject to the FOI Act, the bodies created under them would have to apply the public interest test when deciding whether or not to make relevant environmental information available to the public, unlike the current situation where those bodies are not clearly obliged to do so.

Surprisingly, section 26(a) of the FOI Act completely exempts ‘published material or material available for purchase by the public’ from the application of the Act. While this exemption might refer to materials covered by intellectual property rights – which could potentially justify their exclusion under best practice, although it could still fall short for not being made subject to the public interest test – the use of an open phrase like ‘published material’ to describe the exempted material could easily foster broad interpretations. It could mean that any information that has been put in the public domain through any medium is not subject to the FOI Act. This is the interpretation given to that provision in the FOI Act Implementation Guidelines.^{Footnote 160} The Guidelines justify this position by stating that ‘if there is another route by which someone can obtain information, there is no need for the Act to provide the person with further means of access to records’.^{Footnote 161} This is an unacceptable justification for the exclusion for a number of reasons, and which is arguably contrary to best practice.

Firstly, the public might face prohibitive costs in accessing or obtaining a copy of such environmental information, costs that could have been mitigated if the applicant had been able to request a cheaper (or possibly free) version of the same information. Secondly, there might be geographical (and resulting cost) barriers to the access of environmental information that is made publicly accessible only from a single point – say, a relatively remote public library. Thirdly, publicly available environmental information may not be effectively accessible to members of the public with special needs who no longer have the right to request transcribed or useful versions of this information from the relevant public institution. The section 26(a) exemption is also capable of undermining section 2(4) of the FOI Act, which obliges public institutions to make information ‘readily available to members of the public through various means, including print, electronic and online sources, and at the office of such public institution’, as materials could have been ‘published’ through a single medium and could be argued, based on section 26(a), not to be subject to section 2(4) which is largely in line with of best practice.