Question: Our caretaker manager liaised with contractors and inspectors regarding our pool fence. Owners have not been provided with the full content of the email. Is the email a body corporate record? Should owners have access?
Our caretaker/resident manager liaised with a pool inspector regarding possible pool fence defects. The caretaker received two quotes from pool fencing companies, which they submitted to the body corporate at the AGM.
The chair provided owners with only an excerpt of the email, showing part of the pool inspector’s information directly relating to the state of the fence. The chair refuses to release the full contents of the email between the caretaker and the pool inspector, saying it is the caretaker’s property.
As the information directly relates to a project that was being voted on, is the email between the caretaker and the pool inspector a body corporate record? If an owner provides a written request to view the email, should it be released?
Answer: Correspondence sent to and from the caretaker manager on behalf of the body corporate that clearly relates to committee business must be kept as part of the body corporate records.
The legislation provides that the body corporate must keep correspondence received by the body corporate and correspondence sent by the body corporate as part of its records. This includes correspondence sent by email. The legislation also provides that committee members are required to be given access to these records, and owners may be given access to these records for the prescribed fee.
The adjudicator in Q1 [2013] QBCCMCmr 235 determined that communications sent to or from a committee member representing the body corporate, or that clearly relate to committee business, would also be body corporate records even if not included in ‘official’ files.
Relevantly, the adjudicator provided:
I do not consider that a document fails to become a body corporate record or ceases to be a record simply by being left with an agent or body corporate member, or being removed from the ‘official’ files. A document that is a record upon its creation or receipt remains a record for as long as it kept by or on behalf of the body corporate, unless it is disposed of as permitted under section 203 of the Standard Module.
The caretaker manager is a member of the committee (although they are a non-voting member). Accordingly, correspondence sent to and from the caretaker manager on behalf of the body corporate that clearly relates to committee business must be kept as part of the body corporate records (despite it being between the caretaker manager and the pool inspector). The committee and owners are entitled to view the full email (except to the extent that its contents may be privileged or contain defamatory material).
Katya Prideaux Mahoneys E: kprideaux@mahoneys.com.au P: 07 3007 3753