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By Myke Agunwa
The 2027 re-election plan of President Bola Ahmed Tinubu may face a fresh obstacle as a court in the United States of America has ordered the country’s top law enforcement agencies to release confidential information generated on President Bola Tinubu during a “purported federal investigation in the 1990s”.
Recall that in 1993, Tinubu reportedly forfeited $460,000 to the American government after authorities linked the funds to proceeds of narcotics trafficking.
The issue of Tinubu’s forfeiture of the funds featured prominently at the Presidential Election Petition Court when his opponents, Atiku Abubakar and Peter Obi of the Peoples Democratic Party and Labour Party, respectively, challenged the president’s eligibility to contest Nigeria’s presidency.
President Tinubu, however, objected to the move, stating that the release of the stated document, including his academic records at Chicago State University, would do irreparable damage to his personality.
Justice Beryl Howell made the order on Tuesday, insisting that protecting the information from public disclosure is “neither logical nor plausible.”
The United States District Court for the District of Columbia ordered US law enforcement agencies to release confidential information generated on President Bola Tinubu during a “purported federal investigation in the 1990s.”
An American, Aaron Greenspan and Nigerian investigative journalist, David Hundeyin, had filed the suit in June 2023 under the Freedom of Information Act (FOIA) against the Executive Office for US Attorneys, Department of State, Federal Bureau of Investigation(FBI), Internal Revenue Service (IRS), Drug Enforcement Administration (DEA), and the Central Intelligence Agency (CIA).
In their affidavit, the duo accused the law enforcement agencies of violating the FOIA by failing to release within the statutory time “documents relating to purported federal investigations into” President Tinubu and one Abiodun Agbele.
Between 2022 and 2023, they filed 12 FOIA requests with six different US government agencies and components seeking information about a joint investigation conducted by the FBI, IRS, DEA, and the US Attorney’s Offices for the Northern District of Indiana and Northern District of Illinois.
According to the plaintiffs, the records being requested involved charging decisions on the activities, including money laundering, of a Chicago heroin ring that operated in the early 1990s.
In each FOIA request, they sought criminal investigative records about four named individuals “allegedly associated with the drug ring: Bola Ahmed Tinubu, Lee Andrew Edwards, Mueez Abegboyega Akande, and Abiodun Agbele.”
After the requests, all five US agencies issued “Glomar responses”, refusing to confirm or deny whether the requested records exist.
Both Greenspan and Hundeyin contested those responses at the Department of Justice’s Office of Information Policy (“OIP”). The OIP, however, affirmed the agencies’ refusal to confirm or deny the existence of the requested records.
They later filed a lawsuit on 12 June 2023, naming the FBI, DEA, IRS, EOUSA, and Department of State as defendants and challenging each agency’s response to the separate FOIA requests.
Court documents showed that the CIA was later added as a defendant in the First Amended Complaint, along with a challenge to that agency’s glomar response to the plaintiff’s FOIA request.
On 20 October 2023, they filed an emergency motion seeking a hearing to compel the US agencies to immediately produce records responsive to his FOIA requests. They cited the Nigerian Supreme Court’s plan to begin hearing arguments in three days’ time in a litigation contesting Tinubu’s 2023 election as the President of Nigeria.
On 23 October 2023, their emergency motion was denied for failing to “satisfy any of the requirements for emergency injunctive relief.”
However, on Tuesday, Judge Howell ruled partly in favour of Greenspan and Hundeyin in the US case.
The judge noted that the ‘Glomar’ responses asserted by the FBI and DEA are “improper and must be lifted.” He said the FBI and DEA failed to show that they properly invoked FOIA.
Howell said since it was acknowledged that Tinubu was the subject of an investigation involving both the FBI and DEA, “the claim that the Glomar responses were necessary to protect this information from public disclosure is at this point neither logical nor plausible.”
Explaining his judgement further, Howell establishes that a FOIA requester may challenge the propriety of an agency’s Glomar response in two ways: first, by “challeng[ing] the agency’s assertion that confirming or denying the existence of any records would result in a cognisable harm under a FOIA exemption,” and, second, showing that the agency “has ‘officially acknowledged otherwise exempt information through prior disclosure,” meaning that the agency “has ‘waived its right to claim an exemption with respect to that information.”
In this case, the judge said Greenspan and Hundeyin asserted both types of challenges to defendants’ Glomar responses: “The plaintiffs’ argument that (1) DEA has officially confirmed investigations of Agbele’s involvement in the drug trafficking ring, (2) the FBI and DEA have both officially confirmed investigations of Tinubu relating to the drug trafficking ring, (3) any privacy interests implicated by the FOIA requests to the FBI and DEA for records about Tinubu are overcome by the public interest in release of such information, and (4) the CIA has officially acknowledged records responsive to plaintiff’s FOIA request about Tinubu.”
Meanwhile, the CIA has the judgment entitled in its favour in this case. The judge ruled that Greenspan and Hundeyin failed to show that the “CIA has ever officially acknowledged the existence or nonexistence of records responsive to his FOIA request. Therefore, the CIA’s Glomar response must be sustained.”