The Mail and Guardian (M&G), a newspaper publication company requested records relating to the tender processes used by the company responsible for organizing the 2010 soccer World Cup in South Africa, the 2010 FIFA World Cup Organising Committee (LOC).
In May 2009, M&G journalist requested from the LOC the records created in the process of the LOC selecting and contracting with providers of goods and services when organising the World Cup soccer tournament in South Africa. The LOC denied access to the information claiming that it was not a public body and arguing that M&G had failed to establish that it required access to the records in order to exercise or protect its rights, a requirement under Article 50 (1)(a) of the Promotion of Access to Information Act (PAIA) for requesting information from a private body.
The journalist, M&G, and the M&G editor appealed. The LOC argued that (1) M&G and its editor did not have standing to bring the PAIA action; (2) the PAIA did not apply to the LOC in regards to the tender records; and (3) if it did apply, the PAIA nonetheless afforded the LOC protection because disclosing the records would damage its commercial interest.
Section 78 of the PAIA recognizes that only a “requester” and “third party” may bring proceedings. The LOC argued that the M&G journalist gave only his name as requester when he completed the application, thus the M&G and its editor did not have standing (para. 25). The Court noted that the journalist had incorrectly filled out the forms, but that such error did not mislead the LOC (para. 30). The Court declined to deprive the plaintiffs of standing based on this technical ground (para. 30).
Application of PAIA to the Tender Records
The LOC asserted that it is a private body and thus is under less of an obligation to disclose records. Under the PAIA, if a requester seeks records from a private body, the requester must establish that he requires access to the record in order to exercise or protect a right (para. 146).
To determine whether an entity is a private or public body, the court looked at the nature of the powers and functions performed (para. 148-149, 158). The Court pointed out two important factors to consider: 1) state control of the entity (paras. 148-149, 158) and 2) whether the entity dispenses public funds (paras. 239, 266, 258). As the Court explained “where government funds are being disbursed by a ‘private’ corporate entity (e.g. a company) the right to access to information applies to all records relating to such expenditure.” (para. 266). Similarly, “the activity does not lose its character of being ‘public’ just because it is an activity that may also be performed by private bodies” (para. 241), and the entities intention to be a private body is irrelevant (para. 249).
The Court explained that the LOC is not by default a public company, but may have acted as one in respect to the tender processes used while staging the World Cup. According to the Court, while the LOC is a company separate and distinct from the public body South African Football Association (“SAFA”), SAFA assigned all of its rights and obligations relating to the 2010 World Cup to the LOC. In addition, after transferring the rights, the government continued to play a role, including providing infrastructure, and financial, legislative, and executive support to the LOC (paras. 110-117).
The court noted that eight of the board members were government officials and that that was in itself sufficient to find that the LOC is a public body (paras. 230 and 234). The Court further noted that the LOC’s use of public funds further indicated that it is a public body (paras. 239, 253, 258, 272).
In the alternative, the Court found that if the LOC was a private body, it would still be required to provide its records (paras. 163, 331). The Court explained that the right to freedom of the media and the right of the public to receive information on matters of public interest qualify as “rights” under the test for requesting information from private bodies (para. 339). Moreover, while the PAIA requires requesters to demonstrate “a connection between the information requested and the protection and enforcement of rights[,] the degree of connection should not be set too high.” (para. 355). The Court explained that an appropriate test should “enable access to information as will enhance and promote the exercise and protection of rights.” (para. 355, emphasis is original). M&G needed the requested documents to inquire into the propriety of the tender, and to exercise its right to media freedom (para. 361). Therefore, even if the LOC was a private body, it would be required to provide the records.
Statutory grounds for Refusal
The agreement signed between SAFA and FIFA included language, intended to protect FIFA’s marketing rights, that prohibited SAFA from disclosing relationships with service providers. Relying on this language, the LOC argued that the records fall under the commercial interests exemption since disclosure would violate the contract and undermine the business model of FIFA (para. 393).
The Court found that any possible harm to the business model “would be far less than the harm done to the rights of the people of the country to access information if these records were to be kept secret.” (para. 399). The Court also explained that the LOC’s argument must fail because (1) under PAIA, “the body to which a request is made must itself be likely to suffer the harm associated with disclosure,” and (2) the Court does not believe that disclosure of the reports would lead to any harm (para. 403, emphasis in original).
The Court ordered the LOC to disclose the records.
Judgment of the Court.