Lawyer’s Ultimatum to JAMB; Balancing Freedom Of Information And Privacy Rights

By Lois Iheanyichukwu 

Background

Recently, an Abuja-based lawyer, Chief Chukwuma Nwachukwu wrote to the Joint Admissions and Matriculation Board (JAMB), demanding to be furnished with names and scores of the 10 best candidates in the 2024 UTME and giving the board a seven days ultimatum within which to comply. His demand was made pursuant to the provisions of the Freedom of Information Act, 2011 (the Act)[1]. According to the lawyer, it is wrong for JAMB to withhold the requested information when it gave a breakdown of the performance of candidates that partook in the examination.

Requests such as this brings to the fore, a critical debate regarding the balance between freedom of information and the individuals’ right to privacy. In this article, I will attempt to discuss this interplay and analyze the lawyer’s request under the Act and the Right to Privacy under the Nigerian Data Protection Act, 2023 (NDPA).[1]

Legality of the Request: 

First, it is important to state that by its preamble, the Act, was made explicitly, to guarantee access to public records and information to the extent consistent with the public interest and to protect personal privacy while at that as well as protect serving public officers from adverse consequences of disclosing certain kinds of official information without authorization.

The lawyer’s request was made pursuant to Section 1 of the Act which provides:

1. 1. Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution howsoever described, is established.
   2. An applicant under this Act needs not demonstrate any specific interest in the information being applied for.
   3. Any person entitled to the right to information under this Act, shall have the right to institute proceedings in the Court to compel any public institution to comply with the provisions of this Act

From the provision of Section one, of the Act, ‘any person’ has the right to request for information in the possession of any public official, agency or institution without demonstrating any specific interest in the information being requested for.  Reading only the provision without more, one would be tempted to assume that the request made by the lawyer to JAMB was appropriate and ought to be granted, particularly with the right giving to such applicant to  institute an action in court to enforce compliance.  However, a perusal of Section 14 of the Act would introduce another dynamic to the earlier provision of section 1.

Section 14 of the Act provides;

1. 1. Subject to subsection (2), a public institution must deny an application for information that contains personal information and information exempted under this subsection includes –
      • • a) files and personal information maintained with respect to clients, patients, residents, students, or other individuals receiving social, medical, educational, vocation, financial, supervisory or custodial care or services directly or indirectly from public institutions;
        • b) personnel files and personal information maintained with respect to employees, appointees or elected officials of any public institution or applicants for such positions;
        • c) files and personal information maintained with respect to any applicant, registrant or licensee by any government or public institution cooperating with or engaged in professional or occupational registration, licensure or discipline;
        • d) information required of any tax payer in connection with the assessment or collection of any tax unless disclosure is otherwise requested by the statute; and
        • e) information revealing the identity of persons who file complaints with or provide information to administrative, investigative, law enforcement or penal agencies on the commission of any crime.
   2. A public institution shall disclose any information that contains personal information if 
      • • a. the individual to whom it relates consents to the disclosure; or
        • b. the information is publicly available.
   3. Where disclosure of any information referred to in this section would be in the public interest, and if the public interest in the disclosure of such information clearly outweighs the protection of the privacy of the individual to whom such information relates, the public institution to whom request for disclosure is made shall disclose such information subject to Section 14 (2) of this Act.

From the above provisions, public institutions must deny an application for access to information that contains personal information except where there has been consent from the owners of the personal information or where such information is available in the public space.

Personal information as described by the interpretation section of the Act are any official information held about an identifiable person, but does not include information that bears on the public duties of public employees and officials.

It would therefore appear that Section 14 of the Act provides an exception to the Section 1 of the Act and bars a public institution from granting any request that is made for the personal information where there is no prior consent and where such personal information is not already in the public domain.

The information sought by the Applicant in this case is the names and the scores of the 10 best candidates that wrote the UTME. The Applicant is basing his request on the fact that since JAMB presented a breakdown of the performance of candidates that took part in the examination, it behooves on it to also furnish the names and scores of the best candidates.  With regards to the breakdown information provided by JAMB, they cannot be regarded as personal information since they do not refer to any identifiable person, however, what the lawyer is asking for, is that JAMB provides the names and the scores of 10 identifiable persons that took part in the exam. The request is clearly for the personal information of individual persons and falls under the exemption provided for under Section 14 of the Act.

Balancing Freedom of Information and Right to Privacy:

Both freedom of information and privacy rights are fundamental principles that are essential for a functioning and democratic society.

Freedom of information ensures transparency, accountability, and the ability of individuals to access information that is in the public interest. It allows citizens to make informed decisions, hold governments and institutions accountable, and participate effectively in democratic processes.

On the other hand, privacy rights protect individuals from unwarranted intrusion into their personal lives and ensure autonomy, dignity, and control over their personal information.

The challenge lies in navigating the murky waters where these rights intersect, where the pursuit of transparency must be balanced with the imperative of protecting personal privacy. Legal frameworks and regulations attempt to draw these boundaries, establishing rules for the collection, use, and dissemination of information while respecting individual rights. Yet, in the age of rapid technological advancement, these boundaries are continually tested, requiring constant vigilance and adaptation.

Flowing from the above, it is true that the Act grants individuals the right to access information held by public institutions, without the need to demonstrate a specific interest in the information. However, this right must be balanced against individuals’ right to privacy, especially with regards to personal data.

Therefore, in considering whether or not to grant a request for information premised on freedom of information right, the public institution faced with the request such as that which was made to JAMB must consider the following:

1. Whether such information is “personal information” as defined by the Act.
2. Whether the consent of the owner of the information ought to be obtained before making such information public.
3. Whether the privacy rights would be breached if the information is made available to the public, where their consent is not obtained.
4. Whether there is any potential harm to the privacy rights of the person

In addition to the exemption under Section 14 of the Act, it is trite to state that right to privacy is a fundamental human right enshrined in the Constitution of the Federal Republic of Nigeria,[3] and under the NDPA. This right protects individuals’ personal data from unauthorized access, use and disclosure, safeguarding their dignity, autonomy, and freedom from intrusion. In the context of JAMB’s examination scores, disclosing candidates’ names and scores without their consent would infringe upon their privacy rights.

Following from the above, it is important to state that should JAMB choose to accede to the demand made by the lawyer, it must ensure that the provisions set forth in Section 14, particularly subsection (2) must be considered. Where it chooses not to disclose the requested information, it must also justify this decision based on the specific exemptions outlined in the Act, as highlighted above. It is important to state that JAMB has a duty to protect the privacy rights of the candidates whose information is sought. Any decision to disclose personal data must be carefully weighed against the potential impact on the individuals’ privacy and confidentiality.

Additionally, the NDPA makes elaborate provisions in respect of the protection of personal information. JAMB as the Data Controller of the candidates must ensure that their rights as Data Subjects under Part VI of the NDPA are protected. This is because where it fails to so do, the candidates have the right under the NDPA to lodge a complaint with the Nigerian Data Protection Commission (NDPC) or to approach a court of competent jurisdiction to seek remedy for breach of their right to privacy.

Compliance with Privacy Principles  – What JAMB Must Do 

Having been served with a demand under the Act, JAMB is obligated to take steps one way or the other. Where JAMB decides to disclose the requested information to the lawyer, it must ensure that steps are taken to minimize the privacy impact on the candidates. A way to do this is by seeking and obtaining consent from the best 10 candidates before releasing their names and their scores. This would ensure that JAMB comply with both the provisions of Section 14(2) of the Act and Section 25 of the NDPA. However, it is important to state that there is no provision in both the Act and the NDPA that makes it obligatory for JAMB to seek the consent of the candidates for the purposes of responding to the request such as the one made by the lawyer for their information.

JAMB ought to ensure that appropriate data protection measures are in place to safeguard the confidentiality and integrity of the candidates’ personal information, in compliance with relevant data protection laws and regulations. In the event of legal proceedings initiated by the lawyer, JAMB would be within its right to invoke the relevant provisions of the Act and the NDPA to justify its refusal to disclose.

Conclusion 

In conclusion, the case of the lawyer’s request to JAMB highlights the delicate interplay between freedom of information and privacy rights in modern society. As technology continues to advance and data becomes increasingly valuable, striking the right balance between freedom of information and privacy rights is essential to upholding democratic principles, protecting individual autonomy, and ensuring responsible governance.

Lois is an Associate in the Corporate/Commercial Department of DNL Partners. She helps Organizations comply with the provisions of the Data Protection Act. She can be reached on uloma.iheanyichukwu@dnlpartners.com

[1] FOIA 2011

[[2] NDPA 2023.

[3] CFRN, 1999 (as amended).