Tinubu’s US FOIA case is civil records dispute, not criminal trial — Presidency

Michael Olumide Alabi

Presidency has clarified that the ongoing Freedom of Information Act (FOIA) litigation involving records relating to President Bola Ahmed Tinubu before a United States federal court is a civil records-disclosure dispute and does not constitute a criminal case against the Nigerian President.

The clarification was contained in a statement issued on Thursday by the Special Adviser to the President on Information and Strategy, Bayo Onanuga, amid what the Presidency described as speculative reports and public commentary surrounding the case.

According to Onanuga, the matter is before the United States District Court for the District of Columbia and concerns requests for access to government records under the US Freedom of Information Act.

He stressed that neither the filing of the case nor the release or withholding of records under the FOIA, by itself, establishes criminal liability.

“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,” the statement said.

The Presidency also provided a background to the litigation, tracing part of the history to a 2003 communication from the American Consulate in Lagos to the then Inspector-General of Police, Tafa Balogun.

According to the statement, the American Consulate, in a letter dated February 4, 2003, informed the then Inspector-General of Police that an FBI records check had found no criminal arrest records, wants or warrants for Tinubu, who was then Governor of Lagos State.

The Presidency said that nearly two decades later, in 2022, Aaron Greenspan submitted FOIA requests to several United States government agencies seeking records relating to President Tinubu.

It said that after some of the agencies withheld certain records or declined to confirm or deny their existence, Greenspan commenced Civil Action No. 23-1816 before the United States District Court for the District of Columbia in 2023.

The court subsequently allowed Tinubu to participate in the proceedings as an intervenor, according to the Presidency.

The Presidency said that during the proceedings, the defendants invoked what is known under US law as the “Glomar defence”.
It explained that the defence is used by US government agencies in certain circumstances where an agency maintains that it cannot confirm or deny whether particular records relating to an investigation exist.

According to the statement, the defence is designed, among other things, to protect government personnel, confidential sources and law-enforcement techniques.

The Presidency said the court subsequently granted summary judgment in favour of the Central Intelligence Agency (CIA), the Executive Office for United States Attorneys (EOUSA), the US Department of State, the US Department of the Treasury and the Internal Revenue Service (IRS).

The agencies were consequently removed from the proceedings, leaving claims involving the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA) for further consideration.

The Presidency said the FBI and DEA subsequently complied with the court’s orders by producing 399 pages of records.
However, portions of the documents were redacted pursuant to exemptions contained in US law.

The plaintiff challenged the agencies’ decisions to withhold or redact portions of the documents and sought their release without the redactions.

According to the Presidency, the FBI and DEA, through the US Department of Justice, opposed the request, citing several statutory exemptions under the FOIA.

The statement listed five broad reasons advanced by the agencies for maintaining the redactions.

First, it said some of the documents are protected from public disclosure by law, including records relating to grand jury proceedings. It also cited protections under the Pen Register Act for certain information concerning court orders authorising or approving the installation and use of pen registers or trap-and-trace devices.

The Presidency said these protections fall under FOIA Exemption 3.

Second, some of the documents allegedly contain information protected by attorney-client and attorney-work-product privileges, including instances where FBI and DEA personnel sought or received legal advice from attorneys of the US Department of Justice. The statement cited FOIA Exemption 5.

Third, the agencies argued that some of the documents were prepared for law-enforcement purposes, also under FOIA Exemption 5.

Fourth, the Presidency said some documents contain information that could, if disclosed, result in an unwarranted invasion of personal privacy, citing FOIA Exemptions 6 and 7(C).
Fifth, it said some of the withheld information could reveal the identities of confidential sources or disclose law-enforcement techniques used in criminal investigations, citing FOIA Exemptions 7(D) and 7(E).

The Presidency added that President Tinubu, acting on the advice of his lawyers, had also asserted his rights under FOIA Exemption 7(C).

Onanuga said the litigation remains ongoing, with the parties operating according to deadlines set by the US District Court.
He said the plaintiff has until September 11, 2026, to file any opposition and reply to processes filed by the defendants and the intervenor.

The FBI, DEA and the intervenor, he added, have until September 18, 2026, to respond to any processes filed by the plaintiff.

The Presidency stressed that the remaining dispute concerns the legality of the redactions and whether the agencies were entitled under US law to withhold the information in question.

“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 statement said.

The Presidency also took aim at recent public commentary surrounding the case, arguing that the outcome would ultimately be determined by the US court based on evidence, applicable law and arguments presented by the parties.

Onanuga said the Nigerian media should understand that the case is under the control of Judge Beryl A. Howell of the United States District Court for the District of Columbia.

He also disputed recent claims by Karl von Batten concerning his and his client’s role in the proceedings.

The Presidency said neither Von Batten nor former Vice President Atiku Abubakar is a party to the case, while describing public portrayals of them as central to the litigation as inaccurate.

The statement further urged the media and the public to distinguish between verified developments in the court proceedings and political commentary surrounding the matter.

“The United States District Court will decide that issue based on the filings and applicable US law, not political commentary,” the Presidency said.

The clarification comes amid heightened public interest in the US litigation and the nature of records being sought under the Freedom of Information Act.

The Presidency maintained that the proceedings should not be portrayed as a criminal trial or as a judicial finding of wrongdoing against President Tinubu, stressing that the court is yet to determine the outstanding dispute over the legality of the FBI and DEA redactions.