Hopefully, you would have read or, at least, recall my earlier article outlining a number of common queries (and answers) in relation to accessing body corporate records.
I noted then that there were still a number of other queries on the topic to warrant a sequel.
With that in mind, here are some more queries about access to body corporate records.
Q: My body corporate management firm is very concerned with maintaining our clients’ privacy. We have developed a privacy policy, based on guidelines from the relevant government authorities in this area. Surely our privacy policy, particularly one developed like this, will override any body corporate legislation requiring us to give access?
A: No. “Privacy concerns” is no reason to decline access. Body corporate legislation (www.legislation.qld.gov.au) is very clear on this point. Adjudicators’ orders have also reinforced this point. 17 – 23 Kidston Terrace Chermside QBCCMCmr 587 (9 October 2007) makes clear that such a privacy policy does not override body corporate legislation (refer to www.austlii.edu.au for further details of this and other adjudicators’ orders).
Q: It is going to take me a lot of time to pull together all the material requested by an owner in their request to access records. Can I on-charge them for my time spent in looking for all the records?
A: You may only charge the prescribed fees, namely, a fee for searching and, if applicable, a fee per page of copies. There is no capacity to add on fees for other things, such as offsite document recall or a fee-per-hour for your or someone else’s time in collecting the records.
Q: I know I want access to records but I’m not sure (a) what records are held by the body corporate and (b) what information I’m actually going to need. What can I do?
A: It might be advisable to make your request as specific as possible, for example, you might like to request records only about financial transactions and bank accounts. Or, if there is a particular issue you are concerned with, you might like to request records just on that (e.g. “I would like all records concerned with the body corporate’s engagement of a caretaking service contractor”). Remember it is in your best interests to narrow your search request. Not only may it save you unnecessary expenditure on search and copy fees, it will help you avoid having to wade your way through a lot of material you don’t especially need.
Q: While I have a feeling my request for records is going to result in a number of pages of copies, I don’t know exactly how many. How, then, am I going to know what to pay?
A: This is a common situation and the best information I could give is that you give a written undertaking to pay whatever the prescribed fee ends up totalling. For example, as part of your written request to access records, you might like to add “I undertake to pay the prescribed fee applicable to this request”. You would, of course, need to pay that amount before you are given the records you requested.
Q: The body corporate is engaged in some sensitive legal proceedings and information about those proceedings is contained in a request to access records made by an eligible person. Is there anything I can do about the access to records of those legal matters?
A: Body corporate legislation does in fact provide for circumstances in which a body corporate might refuse a request to access records which it otherwise would have to agree to.
For example, a body corporate does not have to make a document available if it reasonably believes the document has defamatory material in it.
You would need to seek qualified independent legal advice about whether something might be considered “defamatory”. It is not something my Office could advise you on.
Additionally, a body corporate may be able to keep records confidential because of “legal professional privilege”. To be privileged, the document would need to be:
• a communication between a lawyer and their client
• created for a lawyer as part of legal advice to their client, or to take current or planned legal action
• kept confidential by the client.
Also, a body corporate does not have to give a committee member privileged records if legal action between the body corporate and the committee member has started or is threatened.
The questions and answers in both this and the previous article about access to records are not exhaustive and do not address every instance. Hopefully, though, it provides a starting point to address what is an important and sometimes, challenging topic.
For information on the legislation, visit www.legislation.qld.gov.au.
For further information about the body corporate legislation please contact our Information Service on Freecall 1800 060 119, or visit our website www.qld.gov.au/bodycorporate.
Chris Irons
Commissioner for Body Corporate and Community Management
