Question: Does a committee’s instruction to inspect ALL body corporate records, regardless of the specific request, comply with the Body Corporate and Community Management Act?
Our committee has passed a motion ‘to limit the liability of the body corporate from actions alleging documents were not provided for inspection; the committee instructs the body corporate manager to provide inspections of only all the body corporate records to those who request an inspection of any of the records, regardless if the request is only to inspect some records or not.’
Inspection of ALL body corporate records in this instance is on a laptop, which does not provide a directory of contents or a ‘search function’ – as with, for example, ‘MS Word’.
As the committee instruction precludes requesting inspection of a specific document, for example, ‘The roll of lots and entitlements kept pursuant to section 213 of the Accommodation Module’, does this comply with the BCCM Act?
Answer: Committees should be open and transparent, and records belong to the body corporate, not the committee.
The body corporate or its committee cannot decide to restrict what the legislation permits. Last time I checked, ‘records’ included ‘the roll of lots and entitlements’. Privacy considerations are also not relevant.
Really, the only qualifier on access to records comes in Section 221 of the Accommodation Module (equivalent provisions of other Regulation Modules), in particular, the following subsections (2) and (3):
- However, the body corporate is not required to allow a person access to records under this section if a legal proceeding between the body corporate and the person has started or is threatened and the records are privileged from disclosure.
- Also, the body corporate is not required to allow a person access to a part of a record under this section if the body corporate reasonably believes the part contains defamatory material.
The method of inspection issue you raise is slightly more ambiguous. There have been numerous adjudicators’ orders in which this issue has been discussed. While I appreciate you or anyone else might find a ‘search’ function useful, if the body corporate is not compelled under legislation to provide it, you will be hard pressed to argue they are restricting access because of the lack of that function.
My suggestion is to raise concerns with the committee about its decision as a form of self-resolution and failing that (which seems pretty likely, given what you’ve described), you would likely need to proceed to the Commissioner’s Office to dispute the matter.
Reading between the lines here, it seems the committee has been ‘burnt’ before by a records access issue and is trying to create some conditions of access to cover themselves. Which, frankly, in my view, is totally the wrong approach. Committees should be open and transparent, and records belong to the body corporate, not the committee. While I obviously don’t know what else is going on here, or has gone on, you may need to also consider if this committee is doing its job and whether the committee composition should be changed. There are ways and means to do that.
This is general information only and not legal advice.
Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898