Chicago certification: Atiku tells Tinubu: “You can’t hide under privacy law to halt release of academic records

Atiku Abubakar, the Peoples Democratic Party’s (PDP) candidate for the recent presidential election, responded to President Bola Ahmed Tinubu by saying that he could not use the privacy law as a defence to prevent the release of his academic records from Chicago State University (CSU).

This was said by Atiku in response to Tinubu’s argument that his protest to Magistrate Judge Jeffrey Gilbert’s ruling was unfounded and incompetent.

The former vice president claimed that after hearing from all sides, Justice Gilbert resolved all of Tinubu’s reasons for protest against the execution of the magistrate court’s legal order.

Recall that on September 19, the court had ruled that Tinubu’s request for privacy law protection was outweighed by Atiku’s request for discovery.

The denial of Atiku’s motion was based in part on Tinubu’s argument that Judge Gilbert erred in ordering the CSU to produce records pertaining to Tinubu’s diploma, transcripts, and admission letter, among other things.

However, Judge Gilbert emphasised that the Atiku petition had merit because it relates to Tinubu’s eligibility for the 2023 presidential election, which Tinubu (the candidate) won.

Unhappy, Tinubu pleaded with the Federal High Court, presided over by Judge Nancy Maldonado, last Thursday to put off the enforcement of the ruling until Monday, September 25, when he would properly file his objection.

Tinubu had, among other things, contended at the Monday hearings that the order’s granting violated his right to privacy and broke US law regarding the disclosure of academic data.

Because educational records are confidential and shielded from disclosure by the Federal Educational Records and Privacy Act, 28 U.S.C. 1232(g) (“FERPA”), Tinubu had specifically contended that the discovery applicant’s request is intrusive.

But in his most recent attempt, Atiku said that the legislation of privacy Tinubu invoked to prevent the release of his academic records was neither applicable or tenable in this case.

In response, Atiku’s attorney, Angela Liu, emphasised that the FERPA and comparable state statutes do not establish a separate privilege for educational data and cannot be used as a defence against a court-issued subpoena.

The applicant argues that “FERPA does not provide a privilege that prevents the disclosure of student records” and that “the assertion of a privilege or privacy interest under FERPA is a nonstarter; the statute does not give individuals any enforceable rights.”

Furthermore, Atiku contended that Tinubu could not claim that his educational records are protected because 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”).

Atiku said that Judge Gilbert made the right decision when she found that the balance of the Intel discretionary criteria favoured granting the discovery and that Tinubu had submitted his own educational records for review by courts and the public through a number of processes.

The objections are without validity.

Atiku claimed that the Supreme Court of Nigeria has a procedure in place to allow the admission of new material, which appeared to legitimise the demand for Tinubu’s problematic academic records to be made public.

He cited Supreme Court Order 2, which states in part, “A party shall apply for leave on notice of motion prior to the date fixed for the hearing of the appeal if it 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.

“The application shall be accompanied by an affidavit stating the factual basis therefor and of the nature of the evidence or document claimed therein.

“The other party shall have a reasonable opportunity to present his own evidence in reply if he so desires, but the other party shall not be required to answer the additional evidence intended to be called.”

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,” while claiming that his case is a straightforward Section 1782 application.

“Instead, 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”); 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 other sources.

“There is no reason why the intervenor should object to the limited discovery requested by the applicant if, as the intervenor claims, he graduated from CSU in 1979 and the CSU documents are authentic copies made by CSU.

“Due to the aforementioned factors, the Court should reject all of the Objections.

“If the Court overrules the Objections, Applicant respectfully requests that it enter an order requiring the production of documents by October 2, 2023, the deposition scheduled by October 3, to allow time for transcripts to be finalised, 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 is due to appear in court,” the applicant