The candidate of the Peoples Democratic Party (PDP), in the
last presidential election, Atiku Abubakar, has replied President Bola Ahmed
Tinubu, that he cannot use the excuse of privacy law to stop the release of his
academic records from the Chicago State University (CSU).
Atiku, who stated this in his reply to Tinubu’s objection to
the order of Magistrate Judge Jeffrey Gilbert, maintained that Tinubu’s
objection was incompetent and lacking in merit.
According to the former Vice President, all the grounds of objections
raised by Tinubu against the execution of the lawful order of the magistrate
court were resolved by Justice Gilbert after listening to parties.
It will be recalled that the court had on September 19, held that Atiku’s application for discovery outweighs Tinubu’s plea for protection under the privacy law.
Tinubu had, amongst other grounds, for the denial of Atiku’s
request submitted that Judge Gilbert erred in directing the CSU to release
documents bordering on Tinubu’s diploma certificate, transcripts and admission
letter, amongst others.
But Judge Gilbert pointed out that the case of Atiku has
merit as it has to do with Tinubu’s qualification for the 2023 presidential
election, which he (Tinubu) won.
Dissatisfied, Tinubu last Thursday begged a Federal High
Court presided by Judge Nancy Maldonado to delay the enforcement of the order
till Monday, September 25, when he would formally file his objection.
At Monday’s proceedings, Tinubu had, amongst others, argued
that the granting of the order violates his right to privacy and breached US
law regarding the release of academic records.
Specifically, Tinubu had argued that what the discovery
applicant seeks is intrusive because educational records are private and
protected from disclosure under the Federal Educational Records and Privacy
Act, 28 U.S.C. § 1232(g) (“FERPA”).
But Atiku, in his latest move, argued that the law of
privacy pleaded by Tinubu to stop the release of his academic records was not
relevant and tenable in this instance.
Atiku’s lawyer, Angela Liu, in her reply, pointed out that
the FERPA and analogous state laws do not create an independent privilege for
educational records and cannot serve as a shield against a court-issued
subpoena.
According to the applicant, “the assertion of a privilege or
privacy interest under FERPA is a nonstarter; the statute does not give
individuals any enforceable rights”, adding that, “FERPA does not provide a
privilege that prevents the disclosure of student records.”
Moreso, Atiku argued that Tinubu cannot plead protection
when he “has placed its educational records at issue, ECF 40 at 25-26
(explaining that Intervenor put his diploma at issue by submitting it to INEC
and Tinubu’s records have already been introduced into the Nigerian
proceedings, including by Tinubu himself, and widely published in the media”.
Stating further that through various proceedings, Tinubu has
submitted his own educational records for consideration by courts and indeed by
the public, Atiku submitted that Judge Gilbert correctly decided that the
balance of the Intel discretionary factors weigh in favor of granting the
discovery.
“The Objections are meritless.”
Apparently justifying the need for Tinubu’s contentious
academic records to be released, Atiku insisted that a mechanism exists in the
Supreme Court of Nigeria to admit fresh evidence.
He cited Supreme Court Order 2, which reads in part, “A
party who wishes the court to receive the evidence of witnesses (whether they
were or were not called at the trial) or to order the production of any
document, exhibit or other thing connected with the proceedings in accordance
with the provisions of Section 33 of the Act, shall apply for leave on notice
of motion prior to the date set down for the hearing of the appeal.
“The application shall be supported by affidavit of the fact
on which the party relies for making it and of the nature of the evidence or
the document concerned.
“It shall not be necessary for the other party to answer the
additional evidence intended to be called but if leave is granted the other
party shall be entitled to a reasonable opportunity to give his own evidence in
reply if he so wishes”.
While stating that his application is a straightforward
Section 1782 application, Atiku submitted “Contrary to Intervenor’s inflated
rhetoric, Applicant is not seeking “to conduct a fishing expedition into
Intervenor’s private, confidential, and protected educational records.
“Rather, Applicant seeks to test (1) the authenticity and
origin of twelve (12) pages of documents (including two very different
diplomas) that purport to have been issued by CSU (the “CSU documents”) —all of
which have already been submitted to the Nigerian courts and widely published
in the media; and (2) the basis for CSU’s categorical assertion that Tinubu
received a B.S. degree in 1979, given discrepancies between information in the
CSU documents and information in his affidavit submitted to INEC.
“If, as Intervenor asserts, he graduated from CSU in
1979—and the CSU documents are authentic copies issued by CSU—there is no
reason why he should oppose the limited discovery Applicant seeks.
“For the foregoing reasons, the Court should overrule the
Objections in their entirety.
“If the Court overrules the Objections, Applicant
respectfully requests that it enter an order requiring production of documents
no later than October 2, 2023, and the deposition scheduled no later than
October 3, to allow time for transcripts to be finalized, and the discovery
obtained to be sent to Nigeria (which is six (6) hours ahead) by October 4 so
that such evidence may, in turn, be filed with the Supreme Court by October 5,
which is when Applicant’s Nigerian counsel intend to submit any new evidence to
the Supreme Court”, he said.
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