President Bola Tinubu may be in the eye of the storm again, as the United States court for the District of Columbia has ordered top US law enforcement agencies to release confidential information generated on him during a federal investigation in the 1990s.
According to Premium Times, the judge, Beryl Howell, made the order on Tuesday, arguing that protecting the information from public disclosure is “neither logical nor plausible.”
The case was originally initiated by Aaron Greenspan, an American transparency advocate and founder of PlainSite.org, who lodged a lawsuit in June 2023 after submitting 12 FOIA requests to various U.S. law enforcement and intelligence agencies.
These requests sought details of a federal investigation into a heroin trafficking network allegedly involving Tinubu and others, including Abiodun Agbele, Mueez Akande, and Lee Andrew Edwards
According to Mr Greenspan, the records being sought after involved charging decisions on the activities, including money laundering, of a Chicago heroin syndicate that operated in the early 1990s.
In each FOIA request, the American 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.
Moreover, Mr. Greenspan contested those responses at the Department of Justice’s Office of Information Policy (“OIP”).
However, the OIP affirmed the agencies’ refusal to confirm or deny the existence of the requested records.
The American then 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 show 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, Mr Greenspan filed an emergency motion seeking a hearing to compel the US agencies to immediately produce records responsive to his FOIA requests.
He cited the Nigerian Supreme Court’s plan to begin hearing arguments in three days’ time in a litigation contesting Mr Tinubu’s 2023 election as the President of Nigeria.
Three days later, on 23 October 2023, Mr Greenspan’s emergency motion was denied for failing to “satisfy any of the requirements for emergency injunctive relief.”
Also on that same day, President Tinubu moved to intervene in the case, citing his privacy interests in his “confidential tax records” and “documents from federal law enforcement agencies that fall within the Privacy Act or exceptions to FOIA and should not be disclosed.”
How Tinubu’s problem started
In 1993, Mr Tinubu was said to have forfeited $460,000 to the American government after authorities linked the funds to proceeds of narcotics trafficking.
The issue of Mr Tinubu’s forfeiture of the funds featured prominently at the Presidential Election Petition Court when his opponents, Atiku Abubakar and Peter Obi, challenged the president’s eligibility to contest Nigeria’s presidency.
But the election court, in a unanimous decision, struck out the suits, affirming Mr Tinubu’s election.
However, on Tuesday, Judge Howell ruled partly in favour of Mr Greenspan 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 Mr Tinubu was a 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.”
While explaining his judgement further, Mr Howell establish 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 Mr Greenspan asserts 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.”