This lot owner has been told their strata manager is restricted from disclosing lot owner details to the Executive Committee due to the Privacy Act. Christopher Kerin, Kerin Benson Lawyers provides the following response.
Question: Can a strata manager supply an Owner’s Executive Committee with contact details of the complex’s owners or are they restricted by the Privacy Act?
I was looking for information on whether a strata manager can supply an Owner’s Executive Committee with contact details of the complex’s owners? I think it may have been answered in a QLD question: Q&A The Body Corporate Roll QLD and The Privacy Act but I’m unsure if the associated legislation was also QLD, whereas the Privacy Act is federal?
I’m in the ACT. Our Owner’s Executive Committee asked for the contact details & email addresses of the complex’s owners to provide them direct updates. The request was denied by the strata manager under the Privacy Act, however, we were supplied with home addresses for all owners. Could we please receive advice as to whether the Privacy Act applies in this case?
I expect this situation may be faced by strata committees across the country, and since the Privacy Act is Federal, perhaps a general Privacy Factsheet would be useful?
Answer: In short, the Privacy Act does not prevent a strata manager from disclosing to its principal, information collected or held on behalf of its principal.
Here is an excerpt from my book: Guide to ACT Strata Law on Privacy (from page 302 – 306):
10.15 Access to personal information – lot owners. Occasionally a strata manager will maintain that he or she is prevented by the Privacy Act from making information they have collected on behalf of the owners corporation available to the owners in the owners corporation.
In this regard, there is no reported decision in the ACT involving the privacy legislation in a strata context.
In NSW, an owner of a unit can inspect the strata roll and all the names and addresses contained within the strata roll.
The position in the ACT, however, is different to that in NSW. Section 116 of the UTMA provides that on request by an eligible person for a unit or the common property, the owners corporation for the units plan must allow the person, within 14 days after the request is received, to inspect and take a copy of:
- for a request by an eligible person for a unit – the information on the corporate register about the unit and any easement with which the common property is benefitted or burdened; or
- for a request by an eligible person for the common property – the information on the corporate register about any easement with which the common property is benefitted or burdened.
Section 116 does not allow access to the entire corporate register (in NSW, the strata roll) but rather only the information on the corporate register about the unit or any easement with which the common property is benefitted or burdened.
Indeed, consistent with this interpretation are the following provisions:
- section 116(2) which enables an applicant for a court order under the UTMA to inspect, and take a copy of, the names and addresses for correspondence recorded on the corporate register of each unit owner and anyone else with an interest in a unit, or the common property, that is recorded on the register;
- section 116(4) which provides that the corporate register must be kept in a way that ensures that a person who is entitled to inspect the register does not have access to any information the person is not entitled to inspect; and
- the examples given in the UTMA following section 116(4) provide that:
- if the register is kept in a book, the information could be kept on a separate page for each unit and for the common property; and
- if the register is kept in a computer database, the information could be stored so that information for each unit and the common property can be separately displayed, printed out or emailed.
It would appear, therefore, from the above, that a strata manager in ACT cannot provide to a unit owner the names and addresses of other unit owners except pursuant to section 116(2) of the UTMA.
However, a unit owner may obtain the names and addresses of the current executive members within 14 days after the request is received pursuant to section 117 of the UTMA or section 119 of the UTMA. (p. 302-3)
10.18 Access to personal information – owners corporations. Section 10.5 of this Guide [above] dealt with the ability of lot owners to access personal information.
Consideration should also be given to the ability of an owners corporation to access personal information held by the strata manager.
As the strata manager is an agent of the owners corporation, documents which were created or held by the strata manager are, subject to any terms of the agency agreement, the property of the owners corporation.
If the strata manager fails to enable access by the owners corporation to the documents held by it, this may be a breach of the management contract between the strata manager and the owners corporation as well as the fiduciary duty owed by the strata manager to the owners corporation. It is also possible that it gives rise to a tortious action in conversation or detinue.
Further, a failure to provide access to the owners corporation to personal information may also enable the appointment of an administrator under Part 10 of the UTMA.
In short, the Privacy Act does not prevent a strata manager from disclosing to its principal, information collected or held on behalf of its principal.
Finally, given section 35(1) of the UTMA provides that the executive committee of an owners corporation exercises the function of the owners corporation, the executive committee can request that the strata manager provide access to the corporate register. (p. 306)
This post appears in Strata News #197.
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This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.