Commissioners Corner – Accessing Records Part 2 (QLD)
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 which can be found here.
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 (http://www.legislation.qld.gov.au/) is very clear on this point. Adjudicators’ orders have also reinforced this point. 17 – 23 Kidston Terrace Chermside [2007] QBCCMCmr 587 (9 October 2007) makes clear that such a privacy policy does not override body corporate legislation (refer to http://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 http://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.
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.
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If someone is concerned about records they should try and become a committee member of the Body Corp. All records must be available to committee members at no charge. If a Body Corp. manager tries to hide documents particularly those affecting them they are breaking the law and can be charged.
Many thanks for this…most useful, as always.
A question about the undertaking to pay….does the 7-day compliance period commence when the BCM receives this undertaking, or does it only commence upon actual payment?
This is a common problem with some BCMs. The owner can’t pay until the BCM counts the number of copies and advises the cost….and the BCM takes a long time doing this, thinking they can delay with impunity because payment hasn’t been made.
Hello Ross and thanks for your comment and query. For further information regarding your query I recommend contacting our Information Service on 1800 060 119
Hello
the body corp management now send us electronic invoices ie via email. Therefore, our email addresses are known to the manager.
Q: should email addresses be included on the roll?
Q: If yes, then when I do a request for a copy of the roll with payment of fee and appropriate form, should the roll include email addresses?
Hello Susan and thanks for your comment. If you have a further query, I would recommend you contact the Information Service of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate.
Our body Corp manager passed away in early October 2017 and the chair person resigned in March 2017. No meetings have been called to fix this, no communications have gone to owners to be ,ace aware of these issues.
A older member has decided to take it upon himself to take over everything with out votes or again any communication to owners.
His now implementing allocated car parks and spending money on ecssecive signs etc and threatening, intimidating emails to all with the towing of their vehicles if they don’t park in their allocated car park spaces.
The allocated car park to myself and my husband is right on the exit button, under sewage pipes and water pipes running along the back wall. We own a larger 4wd and had to take top bars off the roof in order not to hit the pipes, we now hang out into the exitdrivewayand others need to physically get out of their car to push exit button due to the pipe on back wall. This has been communicated to him and no response on numerous occasions, justfurtherabuseive emails telling us to park there and shut up, any damage we will pay for to pipes or get out of the car park. I checked with the registry titles dept, it’s not registered with them for approval a check with local council is saying it will cost the bc thousands to register and change plans for lot owners. This man is out of control. Spending our lot owner money on things that suit him but forgetting the. Things that need urgent attention such as dripping pipes, stairwell loose etc. lot owners have received a letter stating that his spoken to the bc my and his OK to do all this…..how is this possible?
Hello Barb and thanks for your queries on this and your other post. I would recommend you contact the Information Service of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate for some further information.
Lot owners have requested numerous times for sighting of receipts and quotes for work of recent times and still to date , no answers, no documents provided.
There’s no private in formation in this so why is it not been granted?
I want to renovate my lots kitchen, I asked where the asbestos registrar was for our complex for safety of all owners and workers, still no response.
How do I obtain this information then?
Hi Chris, Thank you very much for this article. More is clear. I applied for copies to the BC five months ago. Unfortunatelly, no response.
Do have to the committee give an instruction to the BCM to give me copies after payment of a fee or should I have sent my request for copies to the BCM directly?
Hi Jirina, I recommend you contact the Information and Community Engagement Unit of my Office on 1800 060 119 for some further information about your next steps