PRESIDENCY MAKES CLARIFICATION ON THE ONGOING FREEDOM OF INFORMATION ACT CASE IN WASHINGTON
The Presidency has noted recent speculative reports concerning an ongoing Freedom of Information Act case before the United States District Court for the District of Columbia.
For clarity, the matter is a civil records-disclosure dispute under the United States Freedom of Information Act. It is not a criminal case against President Bola Ahmed Tinubu, nor has the court found him guilty of any criminal wrongdoing.
Here is the background to the case, which comes 23 years after the American Consulate in Lagos, in a letter dated February 4, 2003, informed the then Inspector General of Police, Mr Tafa Balogun, that an FBI records check found no criminal arrest records, wants, or warrants for then Governor Bola Ahmed Tinubu.
In 2022, Mr Aaron Greenspan, who is known to work with Nigerian opposition figures including David Hundeyin and Atiku Abubakar, submitted FOIA requests to several United States government agencies seeking records relating to President Tinubu. After the agencies withheld certain records or declined to confirm or deny their existence, Mr Greenspan commenced Civil Action No. 23-1816 before the United States District Court for the District of Columbia in 2023.
The court subsequently permitted President Tinubu to participate in the proceedings as an intervenor.
During the proceedings, the Defendants asserted the “Glomar defence, a standard defence that US law enforcement agencies invoke from time to time. It simply means the government agency is not “in a position to deny or admit” the existence of an investigation. It protects government personnel and the techniques and sources law enforcement agencies use to investigate and prosecute crimes.
Based on the invocation of this defence, the United States District Court granted summary judgment in favour of the CIA, EOUSA, Department of State, Department of the Treasury and the Internal Revenue Service (IRS). It ruled that they be removed from the proceedings, leaving aspects of the claims involving the Federal Bureau of Investigation and the Drug Enforcement Administration for further consideration.
In compliance with the court’s orders, the FBI and DEA produced 399 pages of records, with portions redacted under exemptions provided by United States law. The Plaintiff challenged the FBI and DEA’s decisions to redact portions of the documents produced.
The FBI and DEA, through the United States Department of Justice (USDoJ), pushed back against the Plaintiff’s requests. The FBI and DEA rejected the application to produce the documents without redactions for the following reasons:
- Some of the documents are protected from being revealed to the public by law, for example, Grand Jury proceedings. The law exempts transcripts of Grand Jury proceedings from public disclosure. The Pen Register Act also protects from disclosure information about certain court order(s) authorising or approving the installation and use of a pen register or trap and trace device. (FOIA Exemption 3)
- Some of the documents fall squarely within the attorney-work product and attorney-client privileges. Some documents contain instances where FBI and DEA agents sought and/or received legal advice from USDoJ attorneys. (FOIA Exemption 5)
- Some of the documents were prepared for law enforcement purposes. (FOIA Exemption 5)
- Some of the documents contain information which, if revealed, could lead to an unwarranted invasion of personal privacy. (FOIA Exemptions 6 and 7(C)).
- Some of the documents, if disclosed, will reveal the identities of confidential sources or compromise the techniques that law enforcement agencies use in investigating crimes. (FOIA Exemptions 7(D) and 7(E))
President Bola Tinubu, on advice of his lawyers, has also asserted his rights as guaranteed by FOIA Exemption 7(C).
The Plaintiff has until September 11, 2026, to file any opposition and reply to the Defendants’ and Intervener’s processes, while the FBI, DEA and the Intervenor have until September 18, 2026, to respond to the processes that the Plaintiff might have filed.
The release or withholding of records under FOIA does not, by itself, establish criminal liability. The case concerns access to government records and the proper application of statutory exemptions.
The Nigerian media should note that this case is exclusively within the control of Judge Beryl A. Howell of the United States District Court. She will determine its outcome, based on the evidence, applicable law, and the parties’ arguments, not the wishful preference of Alhaji Atiku Abubakar or his agent, Mr Von Batten.
Recent public commentary by Mr Karl von Batten has inaccurately portrayed him and his client as central to the proceedings. Neither is a party to the case.
The litigation is a civil records-disclosure dispute under FOIA. It does not constitute a criminal charge, trial, or judicial finding against President Tinubu. The FBI and DEA have produced records with redactions, and the remaining question is whether those redactions are lawful.
The United States District Court will decide that issue based on the filings and applicable US law, not political commentary.
The Presidency therefore urges the media and the public to distinguish verified court proceedings from partisan speculation.
