By Amos Harris
The Independent Information Commission (IIC) has taken a 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). This progressive intervention, announced by Information Commissioner Joash T. Hodges, aims to ensure that confidentiality practices across the government remain fully aligned with Liberia’s Freedom of Information (FOI) Act.
Commissioner Hodges stated that the advisory became necessary following a recent directive from the Civil Service Agency requiring civil servants to sign NDAs. While acknowledging that NDAs can play a legitimate role 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 primacy over any internal administrative rules, institutional guidelines, or confidentiality agreements. Consequently, no NDA or internal regulation can lawfully override the disclosure obligations imposed under the FOI Act.
The Commission also reminded institutions that the scope of the FOI Act is broad. 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 is essential for promoting a culture of openness beyond traditional government boundaries and ensuring citizens have access to information affecting public governance.
A significant highlight 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—such as enabling legislation, budgets, financial accounts, and material contracts—as soon as they are generated. By reinforcing these requirements under Chapter 2 of the FOI Act, the IIC is strengthening public oversight and empowering citizens to monitor institutional performance.
The advisory explicitly states that NDAs must not restrict access to information that the law already requires to be public. Any attempt to use blanket confidentiality clauses to withhold budgets, policy decisions, or administrative procedures is inconsistent with the FOI Act and therefore invalid. Commissioner Hodges linked this to the Code of Conduct for Public Officials, which emphasizes honesty and transparency. He noted that while officials must protect legitimately confidential data, these protections must be interpreted in harmony with the FOI Act.
Furthermore, the IIC clarified that information cannot be withheld simply because it is labeled “confidential” or “secret.” Under Chapter 4, Section 4.8, any refusal to disclose must pass a clear legal test: the institution must prove the information falls under a recognized exemption, that disclosure would cause harm to a protected interest, and that this harm outweighs the public interest. This ensure that secrecy remains the exception while transparency is the default standard.
The Commission also reaffirmed constitutional protections on privacy. Commissioner Hodges cited Article 16 of the 1986 Constitution and Chapter 4 of the FOI Act, which prohibit disclosures that would unreasonably invade personal privacy. He stressed that NDAs should support these lawful protections rather than distort them. Additionally, the advisory celebrates the protections available to whistleblowers. Chapter 7, Section 7.5 shields any person who lawfully discloses information in good faith from civil or criminal liability, a provision the Commission describes as a major pillar of open government.
To ensure compliance, the IIC directed that all NDAs used across government must expressly recognize the supremacy of the FOI Act. Each agreement must state that nothing within it limits lawful disclosure obligations. The Commission also urged institutions to intensify staff awareness programs so officials can distinguish between truly sensitive records and information that must be disclosed. Commissioner Hodges insisted that NDAs must never be used as instruments of fear or intimidation within the civil service.
Finally, the advisory calls for improved records management, directing institutions to align procedures with both the FOI Act and the Archive Act of 1977. As part of this process, all existing NDA frameworks across the government are to undergo immediate review. Any clause found inconsistent with the FOI Act must be revised or removed. The IIC will continue to monitor compliance and take regulatory action where violations occur, sending a strong message that Liberia’s transparency architecture is maturing and strengthening democratic governance.