Access to body corporate records transcript
(Presentation begins at 00:10:35 of video.)
(00:10:35) Everyone, welcome to the Office of the Commissioner for Body Corporate’s webinar today. Today’s topic is ‘access to body corporate records’.
(00:10:48) Just some housekeeping before we start. If you’ve downloaded Zoom and joined the webinar via the Zoom application, you should see the black menu bar. If you move your mouse up or down you’ll have the ability to submit questions by ‘question and answer’ or ‘chat’ functions. If you’ve joined from the browser you will only be able to submit questions via the chat function, just so you know. We are saying you can email us for questions during the webinar, but hopefully we’ll be able to get those through and answer them at the end—if you can’t use the Q&A or the chat.
(00:11:25) To keep the presentation running smoothly, I’m going to go through all the slides first and through the script for the slides, so that you should get the answers to the information that you want—hopefully.
So if you have a question, please just keep a note of it and then at the end of slides, when I ask for questions, you’re welcome to submit your questions in and…
(0012:17) Okay, still some technical hitches happening here. So, just to reiterate: please don’t ask questions via the chat or Q&A just yet. We’ll go through the slides, and then write them down, and then at the end we can go through any questions that I haven’t answered—because I’ll probably answer your questions through the slide information, okay?
We will be publishing questions and the video recording when we’re able to—as soon as possible. We’re working on our communications section to see how we do that. We should be able to put the questions up fairly quickly, but the video might take a little bit longer.
(00:12:51) Okay, so, presenting today: My name’s Rosemary. I’m an information officer—a senior information officer. I’ve been with the office for 10 years and you may have spoken to me on the information line before.
Amelia is assisting me in the background. She’s assisting with questions and she’s another senior information officer.
(00:13:15) So, today we’re going to go through the following topics:
- The legislative framework
- What is a body corporate record
- Who can access the body corporate records
- Privacy issues
- How to access the body corporate records
- What are the prescribed fees
- When can the body corporate refuse access
- what to do if the committee refuses
- what to do if the body corporate manager refuses
- as part of that, what’s your self-resolution and dispute resolution processes
(00:13:48) Okay to start off with: the legislative framework.
Access to the body corporate records is based on section 205 of the Body Corporate and Community Management Act 1997. This section states the timeframe and the conditions for when an interested person must be given access to the body corporate records. It also defines who an interested person is—in other words who is allowed to access the body corporate records. I’ll be going into that in more detail in later slides.
The regulation modules all state the circumstances for when the body corporate does not have to give access to the records.
The current prescribed fees for access to the body corporate records are also set out in each regulation module and are usually updated 1 July each year. The relevant section numbers are:
- Standard – S. 204 and 205
- Accommodation – S. 202 and 203
- Commercial – S. 160 and 161
- Small schemes – S. 136 and 137
- Specified Two-Lot Schemes – S. 72 and 73.
So one of the main objectives of the BCCM Act is to provide accessibility to information under section 4(h).
(00:14:55) Okay so, firstly, understanding the access to body corporate records, it really helps if you understand what a body corporate record actually is.
Schedule 6 of the dictionary of the Act states that ‘records for a body corporate mean the rolls, registers and other documents kept by the body corporate under this Act (including the regulation module applying to the scheme)’. The Acts Interpretation Act 1954 provides that the meaning of a record ‘includes information stored or recorded by means of a computer’.
So body corporate records include any document (hard or electronic) held in the body corporate records. They are not limited to these examples.
There’re lots of documents the body corporate must keep. You can refer to your regulation module for your scheme or our website for more specifics about what documents must be kept and for how long they can be kept until they can be disposed of.
There are adjudicator’s orders—for example, we have one for Emerald Lakes with the reference number 0868-2012, that ‘emails sent to private addresses are supposed to be put in the body corporate records’. In other words, they form a body corporate record and are accessible by owners. So this is about emails from private addresses.
(00:16:30) So firstly, some clarification around what is not a body corporate record.
The body corporate records are not the property of the body corporate management company (if you have one engaged); the same as the body corporate manager’s personal records (business records, for their business) are not the property of the body corporate and they are not a body corporate record.
Also you have the letting agent. If you have a letting agent for your scheme, the letting agent’s personal business records for the letting component of their contract are not a body corporate record either. This is compared to, for example, some documents such as invoices or emails that relate to the caretaking side of their contract. This may be a body corporate record especially if they deal with the maintenance of common property and the body corporate is reimbursing the caretaker for those items.
(00:17:30) So now you understand what a body corporate record is and isn’t—who can access the body corporate records? Section 205 of the Act defines an interested person as:
- the owner (or a mortgagee) of a lot included in the scheme
- the buyer of a lot included in the scheme
- another person who satisfies the body corporate of a proper interest in the information sought
- the agent of any of those 3 things I just mentioned.
Tenants (called occupiers under our Act) have the right to access the body corporate records if they satisfy the body corporate of their proper interest in the information being sought.
Tenants can contact the body corporate directly for issues that affect them—for example, getting copies of minutes, copies of the body corporate roll or the committee’s contact details, or an occupier’s contact details for the purposes of enforcing the by-laws. It’s not limited to these, though.
They do not have to go through their real estate agent and the body corporate does not have to go through the real estate agent to contact the tenant—this is a common misconception. A tenant can go straight to the body corporate to request records and request maintenance.
(00:18:50) So, now we know who can access the records, when must access be given? Section 205 of the Act states that the body corporate must give access to an interested person within 7 days, if the person has written their request and paid the prescribed fee.
This section states the body corporate must either
- permit the person to inspect the records
or
- give the person a copy of the documents they have requested.
To make it very clear, a person does not have to pay a search fee if they simply want to obtain a copy of a document, as long as they can identify the specific document that they want.
We have had many questions about whether the body corporate still must give access to records even if there is an online portal provided, or the records have previously been provided. In another adjudicator’s order—reference 1066-2016, for Ocean Resort Village—the adjudicator stated ‘the fact that an owner may have already been given records, or may access them in some other way (for example, through an online portal), does not restrict their right of requesting copies of those records under section 205 of the Act’.
(00:20:16) So we’ve just discussed who can access and so forth, so now a question that regularly comes up—and many people have concerns about—is the privacy issues of information being released from the body corporate records.
The Australian Privacy Principles provide that personal information can be disclosed if use or disclosure is required or authorised by law. The body corporate legislation authorises the disclosure of body corporate records under Section 205 of the Act. Multiple adjudicators’ orders have stated that if body corporate records include personal information, the disclosure is authorised by law.
For any privacy legislation queries relating to release of personal information in a body corporate context, you can contact the Federal Australian Information Commissioner on 1300 363 992. The Queensland Government Office of the Information Commissioner deals more with the privacy of your information collected and stored by the Queensland Government, it’s not so much to do with privacy in this situation. Their contact details are 1800 642 753.
A suggestion that we often give people for body corporates to manage privacy issues is that a body corporate could advise owners that their email addresses or phone numbers, if they supply them to the body corporate through correspondence or otherwise, become a searchable record. Owners could set up a separate generic email address for body corporate purposes if they don’t want their personal email address disclosed..
(00:22:05) So now we’ve dealt with what is a body corporate record, who can access the body corporate records, when access must be given and privacy issues I’ll now go through the process for how you access the body corporate records. To access the body corporate records, the interested person must either:
- pay the prescribed search fee and request to search the records in writing; or
- if the interested person can identify specific documents, they can simply seek those specified documents in writing and pay the prescribed copying fee.
I will be going into what the fees are later.
Adjudicators have consistently stated that the person seeking the copies of the documents needs to be able to identify the documents they want. They have stated that the body corporate or body corporate manager does not have to search out a document that might meet a generic request for copies.
Committee members must also be given reasonable access to the records. They do not have to pay a search fee but would usually need to pay the copying fee based on adjudicators' interpretations. There are many adjudicators’ orders explaining what might be reasonable access for committee members.
(00:23:25) So to help you access the records, the BCCM Office has developed a Form 12 called ‘Requiring information from a body corporate’. This is not a mandatory form. It does contain references to the relevant sections of the Act, however. To find the form it’s located on our forms page. I’m just going to now share the screen for the website.
(00:24:15) Okay so you should be able to see our website now. To find forms, under the ‘Body corporate legislation and services we offer’ link right there. If you click on that you’ll see a page called ‘Services of the BCCM office’ and underneath that you see ‘BCCM services and forms’. That’s where all our forms are, it’s fairly easy to find. So if we click there, we’ve got ‘BCCM services and forms’, an explanation about the Information and Community Education Unit, an explanation of what our office can’t do, and dispute resolution services, and then you’ll see the forms. It’s broken up by:
- by-law contravention forms,
- dispute resolution forms,
- recordkeeping and bank account forms – as you’ll see you’ve got individuals, request information from the body corporate’s roll or records’. That link there is to the form 12.
I’ll just now share the form 12 to show you quickly what it looks like. Probably you’ve seen it but –
(00:25:47) Okay so there’s the form 12. As you can see it’s fairly clear. The person writes the secretary’s name. The ‘applicant’s particulars’ are the person who’s seeking the records. They can identify whether they’re an owner, mortgagee, buyer, or otherwise. And the ‘applicant’s agent’ if they’ve got an agent who is requesting the records on their behalf. And it’s fairly clear. You’re asking whether you want to inspect or just copies and you can identify the copies in the form. You can, obviously – it’s not a prescribed form, you can add extra pages or extra information if needed. And under section 205 you can request an information certificate which is our form 13. There’s an ability to request it there using the form 12. And at the bottom there it’s got all the sections that are referenced in the legislation.
(00:26:50) Okay so you should be able to see the slides again.
(00:27:01) Okay so another easy way to find forms or anything on our website, just as a tip, on the website you’ll see at the very top right corner there’s a search field. Please don’t use that. That searches the whole of Queensland Government, so use Google. For example if you want the form 12 ‘BCCM Form 12’ in Google will find it much more easily than using the search function at the top of the website so don’t use that and don’t use the ‘contact us’ at the top of the website please.
(00:27:36) Okay so going on here, you must request access to records in writing. And this can be by email or by letter or you can use the form 12.
To emphasise this point I say again, an interested person does not have to search the records to obtain copies of specific named documents. If you cannot identify the documents, you will have to search the records and pay the search fee.
Just for your information, the legislation does not differentiate between photocopies and hard copies. So photocopy, hard copy or electronic copies in regards to the prescribed copying fee. So if you are getting electronic copies, potentially you pay the copying fee just the same as with hard copies. Also, for footage of CCTV, adjudicators have stated that the search fee may be applicable as you can’t have pages of video records. So you pay the search fee if you want a copy of a video record as in CCTV or something similar.
(00:28:43) Okay, so. What are the prescribed fees? The prescribed fees are the amounts set in the regulation modules for access to the body corporate records. They usually increase on 1July each year, usually by CPI. And the body corporate manager (or the body corporate) cannot charge more than the prescribed fee to that interested person, the individual requesting the records.
(00:29:18) So the prescribed fees, then, who do you pay the prescribed fees to? The prescribed fees are a body corporate fee. They should be paid to the body corporate and not the body corporate management company, directly to their account, or if it’s through them it gets given to the body corporate in the end.
Body corporate managers can charge the body corporate under their contract for any work they do to prepare and supply the records to an interested person. They cannot charge that amount to the interested person. The interested person pays the prescribed fee, the body corporate manager charges the body corporate for the work they’ve done for the body corporate in preparing the records including postage, photocopying, administrative work – whatever it is that they’re doing – that is all a body corporate charge as a whole to the body corporate under the body corporate manager’s contract.
There are numerous adjudicators’ orders stating that an interested person can’t be charged more than the prescribed fees and this can include GST. GST is not applicable to prescribed fees as far as we’re aware. If you want to clarify this or get a determination on GST you please contact the Australian Tax Office. However, there are many adjudicator’s orders saying that GST is not applicable
(00:30:40) So when can a body corporate refuse access? There are only two circumstances where the body corporate can refuse access:
- When the body corporate reasonably believes the document has defamatory material in it. Note that the words “reasonably believes” is in the section in the legislation in section 204 I think it is in the Standard Module. This is the sections in the regulation modules that state that if the body corporate reasonably believes that there is defamatory material in the document they may not have to give the record. And remember that the body corporate must act reasonably when making a decision under sections 94 and 100 of the Act. And defamation is not dealt with under our Act, so we can’t give you general information about it.
- The only other circumstance where the body corporate can say no to giving the records, or refuse to give the records, is under “legal professional privilege”. I’ll be going into that in more detail in this next slide.
(00:31:52)
So adjudicators have stated, to be ‘privileged from disclosure’, the document would need to be related to a legal proceeding that is started or threatened and:
- it's a communication between the lawyer and their client;
- it’s created for the lawyer as part of the legal advice to their client, or to take current or planned legal action; and
- it is being kept confidential by the client.
So the wording of section 205 in the modules – the Accommodation and Standard Modules, is that the body corporate is not required to allow a person access to the records if a legal proceeding between the body corporate and the person – it uses the words “the person” – has started or is threatened. So the person requesting the records, if they have threatened or commenced legal proceeding and they are requesting copies of legal advice the body corporate is getting, and it falls under those categories I’ve just gone through, that is a circumstance where the body corporate may be able to say “we don’t have to give you that record”.
(00:33:08) Those three points that I made in that previous slide are summaries and points taken from some of these orders. These are just some of the orders about legal professional privilege and you can make a note of those but as I said these slides will be available through the website as soon as we can get them published.
So now you know how to access, what fee to pay, who can access, and privacy issues, we’re going to go onto the next step which is…
(00:33:45) What to do if the committee refuses to give you access. Usually, if it’s the committee making the decision that is unreasonable or in breach of section 205 of the Act; so you have followed all the required processes and they’ve still said no; we suggest that a conciliation application be lodged. Conciliation will assist the committee to learn about their responsibilities to make reasonable decisions and their requirement to give access to records under the legislation.
As with all dispute resolution applications, you must have evidence of self-resolution. For access to records this means requesting in writing using either your form 12 or an email or letter and evidence of payment or an attempt to pay the prescribed fee. You will also have to write a statement as part of the application explaining the sections of the legislation that the committee is breaching. So please note that even if it is the committee decision that you’re disputing, and you’re lodging a conciliation application, the respondent in the application will still be the body corporate in this type of dispute.
(00:35:14) So what to do if it is the body corporate manager refusing to give you access? A body corporate manager administers and stores the records on behalf of the body corporate. They’re not the decision maker about whether records can be given out or not, it is the committee that should be making that decision.
However, usually if it is the body corporate manager that is stopping your access to the records, or trying to charge you extra fees, you can lodge an adjudication application. Where the issue in dispute is only about the access to records, it usually can be an expedited application. You can read more about expeditable adjudication applications in practice direction 19 on our website.
The usual requirements again apply to adjudication that I listed for conciliation. You must have evidence of self-resolution being a written request for access and payment of the prescribed fee, plus a statement in the application explaining how the body corporate is breaching the legislation. And even though it’s the body corporate manager that might be preventing access to records in this particular case, the respondent in the application will still be the body corporate in the application.
(00:36:40) So that is all the slides with all the information. If you need to ask any questions, you’re welcome to start asking them now. I’ll start going through them as best I can. Amelia’s told me she can’t access Q&A at this point in time so I’ll be fielding those.
You can phone our information service on 1800 060 119–please note it’s a call-back service but you can leave a time. For example, if you’re busy in meetings you can always say “call after 1pm”. If you have written questions, we ask that you use the online enquiry form at https://www.qld.gov.au/bodycorporatequestion as much as possible. Our website address is https://www.qld.gov.au/bodycorporate and you can search adjudicator’s orders at https://www.austlii.edu.au/cgi-bin/viewdb/au/cases/qld/QBCCMCmr/.