By: Sampat JMB Kpakimah
The Independent Information Commission (IIC) has cautioned all public institutions and relevant private entities against the misuse of Non-Disclosure Agreements (NDAs) in ways that undermine Liberia’s Freedom of Information (FOI) Act. The Commission’s directive follows a recent mandate by the Civil Service Agency requiring civil servants to sign NDAs a move that has raised significant concerns about transparency and public accountability.
In its advisory, the Independent Information Commissioner of Liberia Joash Hodges acknowledged that while NDAs may serve legitimate purposes in safeguarding sensitive information, their application must remain strictly within the confines of the FOI Act, which stands as the supreme legal authority on access to information in Liberia.
Citing Chapter 1, Section 1.7 of the FOI Act, the Commission emphasized that no administrative policy, including NDAs, can override or restrict the public’s statutory right to information. It stressed that any agreement or internal regulation inconsistent with the Act is legally invalid.
Speaking on Friday during a press conference at the institution’s office, Hodges further reminded institutions that the FOI Act has broad applicability, covering not only public authorities but also private entities performing public functions or benefiting from public funds. Stating that as such, all are obligated to comply with disclosure requirements enshrined in the law. Reinforcing its position, the Commissioner highlighted provisions under Chapter 2 of the Act, which mandate proactive disclosure of essential information including policies, budgets, financial records, contracts, and organizational structures without the need for formal requests.
The IIC warned that NDAs must never be used as tools to obstruct or delay access to such information.
The advisory also referenced the Code of Conduct for Public Officials, noting that transparency and openness are fundamental obligations of public service. While certain categories of information may legitimately remain confidential, the Commissioner made clear that such confidentiality must be narrowly defined and legally justified not broadly imposed through sweeping NDAs.
Importantly, the IIC underscored that information cannot be withheld merely because it is labeled “confidential” or “secret.” Any refusal to disclose must meet strict legal standards, including demonstrating potential harm and weighing it against the public interest. The Commissioner also pointed to constitutional safeguards, particularly Article 16 of the 1986 Constitution, which protects individual privacy while allowing lawful disclosure under due process. It emphasized that NDAs must complement not replace these legal protections.
In a strong warning, Joash Hodges reiterated that public officials who disclose information in good faith under the FOI Act are protected from civil and criminal liability. Consequently, NDAs must not impose penalties or create fear among employees who act in compliance with the law. The Commissioner has now directed all institutions to review existing NDA frameworks to ensure full compliance with the FOI Act. Any provisions found to be inconsistent must be immediately revised or removed.
Additionally, institutions are urged to strengthen staff training and establish clear systems for information classification and records management. The IIC concluded by reaffirming its commitment to strict oversight and enforcement, warning that violations of the FOI Act will attract appropriate sanctions. Transparency is the rule; confidentiality is the exception,” the Commission declared, emphasizing that all secrecy measures must be legally justified within the framework of the FOI Act.
