Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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Under the Promotion of Access to Information Act (PAIA), the 2010 FIFA World Cup Organising Committee South Africa Ltd (LOC) had a constitutional and legal duty to comply with the Mail & Guardian newspaper’s request for access to its records of tender offers.
In preparation of the 2010 FIFA World Cup, the South African Football Association, who was awarded the hosting rights by FIFA, delegated its rights and obligations to a separate company, the respondent LOC. The Association did so to ensure that there was a single body dedicated to performing the obligations needed to stage the World Cup. LOC was an officially incorporated company, with eight government Ministers on the board of governors. In this capacity, LOC worked on most of the pertinent aspects of staging the World Cup, including security, finance, vending, and a myriad of other operations. One of their activities included making tender agreements with local businesses to provide services for the event.
The applicant, Mail & Guardian, is a South African newspaper. In response to LOC’s activities, the applicant sought to have documents concerning the tender agreements released for a story it was writing on the planning of the World Cup. The applicant sought the release of the records pursuant to PAIA’s provisions. Subsequently, LOC denied all requests made by the newspaper. In response to the refusal, the newspaper filed an action to force release of the requested records.
The court first noted that Article 32 of the South African Constitution holds that all citizens have access to information held by the state and/or by other citizens. The access is required for the exercise or protection of any rights. In furtherance of this constitutional provision, the PAIA further guarantees the citizens’ right of access to information held by government entities, unless there is a valid ground for refusal. PAIA also allows access to records held by private bodies, but only after the requester shows that he or she requires access to exercise or protect a right. Given this distinction between records held by public or private entities, the court determined whether LOC was a public or private body.
While LOC is technically a private, incorporated company, the court noted that even a private company might be considered a public entity under the PAIA. Specifically, it noted that a private company could be considered a public entity, but it must be acting in place of a public entity, be significantly controlled by the government, and have exercised public power or performed a public function, “in terms of legislation.”
Here, SAFA delegate LOC the authority for overseeing the planning of the World Cup. SAFA is a public entity that had been delegated the authority for overseeing the planning of the World Cup. As such, LOC was essentially a private entity performing a public entity’s job. Furthermore, LOC was using public money in its business dealings regarding the planning of the World Cup, specifically and notably, the numerous tender offer deals that that applicant had requested. Additionally, given that government ministers filled at least eight of LOC’s board of governor seats, the court found that the government had substantial control. Finally, LOC was performing a largely public function in planning the World Cup, which the court considered a national, public event.
However, the court also noted that the above factors were not themselves dispositive in finding that an entity was public. Rather, the entity must also be public in terms of legislation. Here, the court found that several public measures, enacted by congress to provide protection for the planning of the World Cup, qualified as terms of legislation. As LOC had enjoyed the protection of this legislation in pursuing its business dealings in preparation of the World Cup, it was therefore performing public functions in terms of legislation. Accordingly, the court held that LOC was a public entity for the purposes of requests under the PAIA.
As a public body, LOC must show a valid ground for refusing to disclose. The LOC’s proffered reason for refusing disclosure was disclosure would be harmful to its commercial activities. LOC specifically noted that disclosure would harm FIFA by making its business model public, which in turn would negatively affect LOC. The court, however, did not find this explanation to be a convincing reason for refuing to disclose the tender offering records. Rather, it found that a failure disclose the records, a constitutional obligation, would be more harmful to democratic discourse than any harm incurred by disclosure. As the constitution and the PAIA guarantee the right of access to information, the court found that a refusal to disclose the records was in direct contravention of the applicant’s constitutional rights and could not be upheld.
Additionally, the court concluded that, even if LOC was a private entity, LOC had a duty to disclose the requested records under the PAIA. The PAIA states that even private entities must provide access to records if disclosure of those records is required for the exercise or protection of any rights. Here, the court concluded that the disclosure of the requested records was reasonably required to uphold the applicant’s constitutional rights of freedom of the press and freedom of information to the public. The court found that the public has a right to obtain information in the records in question, primarily because the government largely provided the funds. Accordingly, even if LOC was a private entity, the applicant had a right to access and publish the tender offering records, which would provide the public with access to the information.
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