For many years telecommunications consumers in Nigeria have not had the opportunity to compare QoS levels of the various mobile network operators (MNOs) operating in Nigeria, but however towards the ending of 2012 and in a marked deviation from previous trend, the Nigerian Communications Commission (NCC), the telecommunications sector regulator published the annual QoS report for year 2011. This singular act seems to be hinged on NCC’s power of monitoring and report under § 89 of the Nigerian Communications Act, 2003 (NCA).
In this article, I examine the public interest in disclosing the QoS report pursuant to a freedom of information request under the recently enacted Freedom of Information Act 2011 (FoIA).
The meaning of Public Interest
According to Webster's New World Dictionary, public interest means “the people’s general welfare and well being; something in which the populace as a whole has a stake.” In the Communications realm this definition will naturally transpose to mean “the Communications consumer’s well being or something in which the Communications consumer as a whole has a stake.”In essence something “in the public interest” is simply something which serves the interests of the public.
Section 25 (1) (c) of the FoIA provides “where the Court makes a finding that the interest of the public in having the record being made available is greater and more vital than the interest being served if the application is denied, in whatever circumstance.” The effect of this provision is that where an interest in non-disclosure competes with public interest in disclosing an information, the court can only compel disclosure where it is of the opinion that the interest of the public is greater served than any interest being protected. In such circumstance, public interest considerations will generally refer to considerations affecting the good order and functioning of community and governmental affairs, for the well-being of citizens. In general, the public interest consideration is one which is common to all members of the community (or a substantial segment of them), and for their benefit.
The nexus between Public Interest and Quality of Service
The QoS report is a document that evidences or reports the measurement of certain indicators by both Communications licensees and NCC in accordance with a defined measurement method, and it is a detailed account of the QoS level of aspects of a service being offered by a Communications licensee and provides a clear indication of what consumers experience when using a particular network or Communications service, in the words of NCC, “these QoS standards [and report] ensures that consumers continue to have access to high quality telecommunications service by setting basic minimum quality levels for all service providers.”
The emphasis placed on making the QoS report available to the public is exemplified in § 2 subparagraph d of the draft Quality of Service Regulations 2011 which provides: “Making information available to help with informed Consumer choice of services and Licensees.” From this provision it is noted that Communications consumers are entitled to receive information concerning QoS to enable them make an informed choice. In particular, it is important for consumers to base their choices of services on objective evidence rather than on personal anecdotes. To be able to make an informed choice, consumers must have access to material information, in essence the Quality of Service Regulations regards QoS measurements (and reports) as material information. The requirement for material information is central and goes to the root of any consumer protection measure.
In the context of Communications services, the QoS report indicates the level of QoS experienced by consumers, it therefore represents information that the average Communications consumer needs in order to make an informed transactional decision, see The Office of Fair Trading v. Purely Creative Limited & 8 Ors [2011] EWHC 106 (Ch), para. 73. In essence it is material information that will guide owners of the over 122 million connected (GSM and CDMA) lines in Nigeria in making an informed choice about the service provider or service they intend to subscribe to.
No doubt there is public interest in protecting Communications consumers. As set out in the National Policy on Telecommunications, NCC is charged with ensuring that public interest is protected in the Communications market. It is submitted that the “public interest” contemplated under the National Policy on Telecommunications would encompass the broad objectives of the NCA which inter alia provides in § 1 (g) that the rights of consumers are protected. In this regard, it is also noted that the requirement for Communications licensees to comply with QoS standards is a consumer protection measure embedded under § 104 of NCA. As rightly well put by NCC, “these QoS standards [and report] ensures that consumers continue to have access to high quality telecommunications service by setting basic minimum quality levels for all service providers.” Thus in circumstances where the QoS report is not available, consumers of mobile telecommunications services are not able to ascertain whether particular service providers have been able to achieve the “minimum quality levels” set by NCC and are thus denied the opportunity to be able to make an informed choice from the use of this information.
Clearly non-disclosure of the QoS report will significantly deprive mobile telecommunications consumers of the opportunity to make a free or informed choice about mobile telecommunications services and would make it virtually impossible to confirm claims of service providers about their QoS standing. A consumer’s right to access information and freedom of choice is reinforced by United Nation General Assembly Resolution 39/248 Guidelines for Consumer Protection adopted on 9 April 1985 in particular § 3 (c) which provides “Access of consumers to adequate information to enable them to make informed choices according to individual wishes and needs.” It is also submitted that the consumer’s right to access information as users of products or services constitute legitimate grounds of public interest to justify the disclosure of the QoS report. See Canal Satélite Digital SL v Adminstración General del Estado, and Distribuidora de Televisión Digital SA (DTS) [2002] ECR I-607, para 34.
In Re Kenmatt Projects Pty Ltd and Queensland Building Services Authority (1996 S0094, 27 September 1996), a building contractor contested access being given to certain files held by the respondent Building Service Authority relating to disputes which have arisen concerning the building contractor’s works. The building contractor argued that the files qualified for exemption under § 45 (1) (c) of the Queensland (Australia) Freedom of Information Act 1992 which exempts from disclosure; information concerning the business, professional, commercial or financial affairs of an agency or another person and which could reasonably be expected to have an adverse effect on those affairs or prejudice the future supply of such information. The Queensland Information Commissioner found that public interest considerations favouring disclosure outweighed any such apprehended adverse effects. In particular the Information Commissioner held at para 48 that:
...there is a significant public interest in members of the public, many of whom are potential homebuyers or home renovators, having access to information about the performance of builders, and their responses to complaints, to enable them to make informed choices about the builder they engage. I believe that it is valuable for consumers to have before them as much information as possible about the performance of builders they might choose to engage.
Conclusion
It is clear that public interest considerations would favour the disclosure of the QoS report, no doubt if awareness of the QoS report were to be made available to the public, service providers would strive to achieve the best results, and consumers would ultimately be the winners. In concluding the words of NCC during the public hearing on the draft Quality of Service Regulations 2006 aptly comes to mind and I quote “The primary purpose for publishing QoS information is to provide [consumers] timely, relevant, accessible, accurate and comparable information that would enable them make informed decisions.”
