The Independent Information Commission has taken another bold and commendable step in deepening transparency, accountability and public trust with the issuance of a landmark advisory note on the use of Non-Disclosure Agreements (NDAs) in compliance with Liberia’s Freedom of Information (FOI) Act.
The move, announced over the weekend in Monrovia by Information Commissioner Joash T. Hodges, is being widely viewed as a progressive intervention aimed at ensuring that confidentiality practices across government remain fully aligned with Liberia’s legal framework on public access to information.
Commissioner Hodges said the advisory became necessary following the recent directive from the Civil Service Agency requiring civil servants to sign NDAs.
While acknowledging the legitimate role NDAs can play in protecting sensitive and classified records, the Commissioner made it clear that such agreements must never be used to weaken, delay, or suppress the public’s statutory right to information.
According to the IIC, the FOI Act remains the supreme legal authority on matters of access to information in Liberia.
Citing Chapter 1, Section 1.7, Commissioner Hodges emphasized that the law clearly establishes its legal primacy over any internal administrative rules, institutional guidelines, or confidentiality agreements.
The indicated is that no NDA, policy directive, or internal regulation can lawfully override the obligations of disclosure imposed under the FOI Act.
The Commission also reminded institutions that the scope of the FOI Act is broad and far-reaching.
Under Chapter 1, Section 1.6, the law applies not only to ministries, agencies, and commissions, but also to private entities performing public functions or benefiting from public funds.
This clarification, the IIC noted, is essential in promoting a culture of openness beyond the traditional boundaries of government and ensuring that citizens have access to information that affects public governance and service delivery.
One of the most significant highlights of the advisory is the renewed emphasis on proactive disclosure.
The Commission stressed that every public authority is legally required to automatically publish key classes of information as soon as such records are generated or received.
These include enabling legislation, policies, procedures, rules, budgets, financial accounts, material contracts, institutional structures, reporting lines, and appeal mechanisms.
By reinforcing these automatic publication requirements under Chapter 2, Sections 2.5 and 2.6 of the FOI Act, the IIC says it is strengthening public oversight and empowering citizens to better monitor the performance of public institutions.
The advisory strongly states that NDAs must not be used to restrict access to information that the law already requires to be made public.
Any attempt to use blanket confidentiality clauses to prevent the release of budgets, contracts, policy decisions, or public administrative procedures would be inconsistent with the FOI Act and therefore invalid.
Commissioner Hodges also linked the advisory to the Code of Conduct for Public Officials and Employees of Government, particularly Part III, sections 3.6 and 3.11, which emphasize openness, honesty and transparency in public service.
He noted that while government officials have a duty to protect legitimately confidential information, those protections must always be interpreted in harmony with the FOI Act and never used as justification for unlawful secrecy.
In another important clarification, the IIC reminded institutions that information cannot be withheld merely because it has been labeled “confidential” or “secret.”
Under Chapter 4, Section 4.8 of the FOI Act, any refusal to disclose must pass a clear legal test.
The institution must demonstrate that the information falls within a recognized exemption, that disclosure would likely cause harm to a protected interest, and that the harm outweighs the public interest in disclosure.
This legal safeguard ensures that secrecy remains the exception and transparency the default standard.
The Commission also reaffirmed Liberia’s constitutional protections on privacy.
Commissioner Hodges cited Article 16 of the 1986 Constitution, which protects individuals from unlawful interference with privacy, as well as Chapter 4, Section 4.5 of the FOI Act, which prohibits disclosures that would amount to an unreasonable invasion of personal privacy.
He stressed that NDAs should support these lawful privacy protections rather than replace or distort them.
Importantly, the advisory celebrates the protections available to whistleblowers and public officials acting in good faith.
Chapter 7, Section 7.5 of the FOI Act shields any person who lawfully discloses information or grants access in reliance on the Act from both civil and criminal liability, even if the information is later found to be exempt.
This provision, the Commission said, is a major pillar of open government and should reassure civil servants that lawful transparency will not expose them to punishment.
To further strengthen compliance, the IIC directed that all NDAs used across government institutions must expressly recognize the supremacy of the FOI Act.
Each agreement must clearly state that nothing within it limits or overrides lawful disclosure obligations, including disclosures made under court order, statutory authority, public interest, or in response to valid FOI requests.
The Commission also urged institutions to intensify staff education and awareness programs so that public officials can clearly distinguish between legitimately confidential records and information that must be disclosed.
According to him, NDAs must never be used as instruments of fear, uncertainty, intimidation, or unlawful secrecy within the civil service.
The advisory further called for stronger records management and classification systems, directing institutions to align their procedures with both the FOI Act and the Archive Act of 1977.
This includes clear procedures for identifying, storing, classifying, and releasing information in a way that protects sensitive data while promoting lawful public access.
As part of the implementation process, all existing NDA frameworks across ministries, agencies, and commissions are to undergo immediate review.
Any clause or provision found to be inconsistent with the FOI Act must be revised, removed, or replaced with language that supports lawful transparency.
The IIC said it will continue monitoring compliance across public institutions and take appropriate regulatory action where violations are identified.
This latest advisory has sent a strong and positive message that Liberia’s transparency architecture continues to mature under the leadership of the IIC.
By reaffirming that openness is the legal standard and confidentiality of a carefully regulated exception, the Commission said it is not only protecting the integrity of the FOI Act but also strengthening democratic governance, institutional accountability, and public confidence in government systems.