Three things to know about accessing body corporate records:
- Lot owners are entitled to access body corporate records, with two key exceptions
- Documents that are legally privileged or defamatory are off limits
- It’s fair for lot owners to ask why a record has been withheld
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The topic of what is a body corporate record and the rights to access them has been the subject of some adjudications in the Commissioner’s office recently, with some very specific observations around issues such as CCTV.
That has raised some broader questions about access to records in general and what owners can and cannot access.
Access to records remains one of the most litigated topics in the Commissioner’s Office. It always has been, and unfortunately likely always will be.
Inevitably, these matters involve someone asking for a copy of something on the body corporate record because they’re in some sort of dispute with the body corporate about it. That generally produces a desire on the part of the committee not to hand anything over – and that’s where the fights start.
Stepping back, there are a couple of ways to look at this.
What are a committee’s obligations regarding access to body corporate records?
First, from a committee perspective – you have to give people the information they’re asking for, apart from two prime circumstances.
One is that the information is privileged.
Privilege at its core is legal advice that the body corporate has received in contemplation of litigation.
For example, if you’re threatening to sue the body corporate as a lot owner and the body corporate receives legal advice about their rights and responsibilities in relation to your claim, you are not entitled access to that information.
Nor is anyone else in the body corporate; that stays with the committee.
That is consistent with legal principles at every level. So if information is privileged, that’s not a record that is available to access.
The other example is where the information or the material on the records is defamatory; committees aren’t obliged to release that to owners either.
It’s important to make sure that a record is in fact defamatory before denying people access to it.
What are an owner’s rights regarding access to body corporate records?
If the item is on the body corporate record and kept in accordance with the body corporate’s obligations under the legislation, it’s a bit of a free-for-all – owners are entitled to access.
Denying or avoiding access always raises the question of: ‘If you’re not giving it to me, what are you trying to hide?’
When acting for a body corporate in relation to requests from owners, our advice is usually, where at all possible, give the information requested.
Trying to cover up something means that whatever conspiracy theory is running around in the community is going to be held to be believed far more readily than if you hand the information over.
From an owner’s perspective, there are also some rules to follow with any access request.
For example, you need to pay 70 cents a page for the information. You can’t ask for every single email that’s ever been sent.
It’s also important to be prescriptive around what it is that you’re seeking. You don’t necessarily need to explain why, but it helps to be as specific as possible.
Each request depends on its circumstances.
Although, accessing the body corporate roll is an absolute no brainer. Owners are entitled to it no matter what their perceived intent might be.
If you’re unsure of your rights or obligations when it comes to accessing body corporate records, whether from a body corporate or lot owner perspective, seeking legal advice early is always a good first step.
This post appears in Strata News #803.
Frank Higginson
Redchip Strata Law
E: FrankH@redchip.com.au
P: 07 3193 0500
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