What information does the body corporate record extend to?
By Frank Higginson02 Sep 2010
A recent decision of the commissioner’s office considered what was part of the body corporate records and the body corporate roll.
Amongst other things, the modules provide that the body corporate roll must include:
‘the name, residential or business address and the address for service (if different from the residential or business address) of the current owner, or the current co-owners, of each lot included in the scheme’.
There is no legislative requirement to record phone numbers or email addresses of owners, but many body corporate managers do this as a matter of practice. This is one of those situations where industry practice is outpacing the supporting legislation.
The question in this decision was whether non-statutory contact information collected by the body corporate manager formed part of the roll, and therefore the body corporate records, which made the information available to all owners.
There are no Privacy Act issues with this. The Privacy Act is subject to other legislation, such as the BCCM Act, which specifically allows other owners to access the body corporate roll.
The adjudicator allowed access to the numbers and email addresses in this case. This was because:
- the form under which the information was collected was stated to be for the purposes of keeping the body corporate roll up-to-date. The form asked for the information required by law, as well as the additional information;
- the information was actually collected to assist in the management in the scheme; and
- there was no indication to owners that the information was collected for purposes other than for the body corporate and its records.
On this basis, it was held that the information was collected by the body corporate manager in its capacity as a service contractor of the body corporate. If collected in this capacity, the information belonged to the body corporate itself, not the body corporate manager.
So what does this mean?
If a body corporate manager collects contact information that is more than what is required at law, then unless the body corporate manager makes it very clear that the collection of that information is not related to the affairs of the body corporate in any way, then it is likely that the contact details will belong to the body corporate as a whole as part of the body corporate records, and be able to be accessed by any owner.
Body corporate management companies should consider putting in place a protocol that sets out on what basis non-statutory information is collected and when that can be released to others.
In our view the decision leaves it open for body corporate managers to collect information for their own purposes, and keep that from owners, provided that it is made very clear to owners at the time of the conditions on which that information is collected. That policy should allow owners to opt in or opt out with respect to the provision of that information to others.