Access to Owners corporation information, its use and privacy issues
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The UT(M)A makes provision for the collection, storage and release of owners corporation information. In most instances this is clear. However, a recent Appeal decision from ACAT has clouded the issue of release of information. This newly created ‘grey area’ requires immediate government attention in the interests of good governance of all ACT strata communities.
Collection and Use of Information
The owners corporation (OC) must establish and maintain a Corporate Register containing
The full names and registered addresses of the owners of each unit
The representative for each unit
The occupier of each unit
If a mortgagee voting notice exists for a unit, the name and contacts for the mortgagee representative
The full names and registered addresses of any other person with an interest in a unit and
the current executive committee (EC) members.
The register is required to be kept updated within 14 days of the owner entering into an agreement to transfer the lease of the unit and the registration of the transfer or a change in the owner’s name or address for correspondence or a change of occupancy of the unit.
The information can only be used for communication with owners about the management of the OC. This includes notice of the Annual General Meeting and other general meetings including whether the owner has the right to vote (S3.6 and 3.7), notices of reduced quorum meetings (S3.10), provision of minutes within 14 days (S2.1), notices about levies and their due dates (Ss79 and 90), and notices about Rule infringements (S109) among others.
Managers often take the view that they can use the information they hold for marketing their services to owners or even to circumvent or undermine the EC. Where this behaviour has been taken to ACAT, ACAT members have made clear that this is not within the managers rights [unreported case Coghlan and others v UP930].
Managers regularly demand email addresses for the purposes of easier contact with owners and speedier transmission of formal notices and other communications. As this information is collected for the management of the OC, it is the property of the OC not of the manager, although many managers strenuously contest this.
Owners’ rights to information
Owners must receive minutes within 14 days of an OC or EC meeting (S2.1). This is a useful addition to the UT(M)A. It does put some pressure on ECs but it ensures owners have to know what decisions are being made. The requirement that the minutes of reduced quorum meetings are circulated to all owners within 7 days remains unchanged. See Decision Making by Owners Corporations. (https://www.ocnact.org.au/decisionmaking-by-owners-corporations)
S117 of the UT(M)A provides that owners are entitled to the names and addresses of the Executive Committee.
117 Names and addresses of executive members
On request by an eligible person for a unit or the common property, the owners corporation must, free of charge, give the person the full names and addresses of its current executive members within 14 days after the request is received.
Many managers prevaricate that ‘your communication will be passed on to the EC’ etc. None of this deals with the statutory right to the information that cannot be denied. Communication moderated by managers often fails to convey the owners message as the owner wants it conveyed. And why would a manager waste their own limited time filtering communication when it is the owners who have skin in the game of managing the OC.
Many EC members avoid direct contact with owners because they regard it to be time wasting and exposes them to owners ‘unreasonable demands’. Rather, acting in the corporation’s best interest is a legal requirement of the EC and this includes treating all owners equitably. Contact with owners goes with the EC role and offers opportunities for education of owners about the realities of OC living
Up until recently, it was thought that S119(4) allowed all owners access to information held on the corporate register. However, as a result of a recent ACAT Appeal decision, owners access to owners corporation information is now a vexed area.
119 Unit title certificate and access to owners corporation records
(4) On request by an eligible person for a unit or the common property to inspect the records of an owners corporation, the corporation must, within 14 days after the day the request is received, allow the person—
(a) to inspect—
(i) the information on the corporate register; and
(ii) any other records held by the corporation; and
(b) to take copies of any document inspected.
ACAT’s initial decision in Davidson v UP1475 was quite clear that OC information cannot be withheld from owners on Privacy Act grounds as the access is granted by the UT(M)A as a legislative right and that right is not overturned or compromised by the Privacy Act. The initial Tribunal concluded that owners have a broad right of access to OC information including to the names and addresses of other owners to further discussion of owners corporation matters.
However, that decision was appealed on a number of grounds and it succeeded only by virtue of the definition of ‘eligible person’, which says
eligible person, for a unit or common property in relation to which access to information is required, means—
(a) the owner, or another person with an interest in the unit, or in an easement over the common property; or
(b) for a unit that is owned, or part-owned, by a company—the representative of the company; or
(c) anyone authorised in writing by a person mentioned in paragraph (a) or (b); or
(d) if access to the information is necessary or desirable for the administration of this Act—the planning and land authority.
The Appeal Tribunal accepted that
90. Therefore, what appears to be an ‘open slather’ interpretation that rests upon the text of section 119(4) read in the context of Part 7 of the UTM Act, the Tribunal agrees with the appellant’s arguments that the relational words in the definition of ‘eligible person’ in the Dictionary to the UTM Act are critical. Reading the definition of ‘eligible person’ alongside section 119(4), the Tribunal concurs with the appellant’s interpretation that section 119(4) does not provide a freestanding right for any owner to obtain all information. The information that the owner may obtain are those in relation to their unit or the common property.
The full decision is here.
As a consequence, the rights of current owners to the information of the OC are significantly restricted.
For instance, if an owner asks about how decisions on budget priorities or maintenance/refurbishment priorities were reached, or why their insurance claim was treated differently to a similar claim by another owner, they can be refused a response and refused the right to inspect the corporation’s records.
In reaching its decision, the Appeal Tribunal clearly did not like the result forced upon it by the wording of the Act.
98. The Appeal Tribunal considers that amending Part 7 UTM Act to provide a clear set of guidelines for access to information should be prioritised and the Tribunal will advise the President accordingly pursuant to section 105A of the ACAT Act.
Importantly, it should be noted that the appeal panel did not overturn ACAT Presidential Member Daniel’s original view that disclosure of OC information to owners is not precluded by the Privacy Act. The Appeal decision relied upon the legal definition of ‘eligible person’ in the UT(M)A.
Because the OCN ACT is strongly of the view that owners own the owners corporation and therefore owners have a natural right to seek information about the OC’s operation and to contact other owners, it has raised the need for priority amendment of the UT(M)A with the Attorney General.
S 116 provides for owners to access information only in the quite specific circumstance of a court order being sought.
The cost of owners accessing information
For an existing owner seeking information under S119 (4) they can be charged up to the 2021 maximum of $114 only if the OC has set a fee.
Given that the owner is seeking access to the OC information it would be appropriate for the OC to set a minimal or zero fee.
It could, and probably should, be argued that the mention of a fee item in a manager’s contract in relation to S119(4) does not amount to an OC decision about fees for accessing OC information.
The fee is payable to the owners corporation not to the manager.
No fee is fixed for S116 applications.
Potential purchasers accessing OC information
S119 gives potential purchasers a statutory right to access.
Managers prepare S119 statements for owners who are selling units and for the information of potential purchasers. The information that must be provided is described in the Unit Titles (Management) Certificate Determination 2021.
This information must include, among others:
the name and contact details of each member of the corporation’s executive committee and the manager
details of insurance policies
details of the amounts and due dates of levies
balances of the Administration, Special Purpose and Sinking Funds
Sinking Fund and Maintenance Plans
details of any OC borrowings
copies of professional reports prepared for the OC
copies of current contracts with service providers
minutes of OC and EC meetings for the past 2 years
the place where the corporation’s records can be inspected, and the name and contact details of the person to be contacted to arrange inspection.
Currently potential purchasers who are not, and may never be, a member of the OC have more access to information about the OC granted to them by law than a current member of the OC has.
ECs and managers need to note that the OC is liable for incorrect or missing information in the S119 certificate, not the manager. S120 provides
120 Acting on information in unit title certificate
If a person acts honestly on a matter stated in a unit title certificate, then, in an action by or against the owners corporation, the corporation is estopped, as against that person, from denying the truth of that or any other matter stated in the certificate.
Several years ago, an OC took a new owner to ACAT demanding payment of a special levy the new owner was not informed about in the s119 certificate. ACAT concluded the new owner was not liable for the payment because they had not been informed of it in the obvious place, the S119 certificate. So, ECs should discuss S119 certificate processes with managers.
The cost of potential owners accessing information
The Unit Titles (Management) (Fees) Determination determines the maximum fees for access for information. An OC may set any fee less than or equal to the maximum fee but is required by S119 (5) to set a fee if they want to charge for access,
(5) A request under this section must be in writing accompanied by a fee fixed by the owners corporation of not more than an amount determined by the Minister.
A maximum fee for a S119 certificate in 2021 is $300 and a S119 update certificate $150. If a potential purchaser seeks access to OC records in addition the allowable fee is zero.
ECs right of direct contact
There are many occasions where ECs want to contact an owner directly and sometimes urgently. Managers should not halt or impede direct EC contact with owners, or straight out deny access to contact details, especially email addresses.
Because the information is collected as required by the UT(M)A for the management of the OC, and the EC is seeking the information for the purposes of managing the OC, ACAT’s view is that the EC’s access to the information cannot be denied. No Privacy Act issue arises.
Disclosing your own your information
Your personal information is owned by you and only you can choose who to give it to, not your strata manager.
There is a misconception among managers that owners cannot decide to share their information with other owners, so that constructing something like an internal phone and email directory is prohibited by the Privacy Act. That is absolutely not the case.
If we can give our information daily on the Internet to order goods and services, we can also share it with our neighbours to facilitate easy contact for neighbourly purposes. Making contact between owners easier usually makes for more comfortable OC living.
The OCN will provide updates on the rectification and clarification of the UT(M)A in relation to access to owners corporation information as it becomes available.