First published in Resort News, July 2024
The rapid evolution of digital technology has made privacy a hot social topic, and nowhere more so than in strata communities.
With records being digitised, communications taking place mostly online and security cameras beaming images over the internet, the question of how all this data is being managed and who has access to it can create confusion and conflict.
Resident managers in unique position
Resident managers occupy a unique position in this debate. They can inhabit three personas directly affected by questions of privacy: caretaker, lot owner, and letting agent. They may also control or manage the means by which people’s privacy can be recorded: the CCTV cameras.
The question over how privacy issues are handled depends on which hat the resident manager is wearing – and to some degree, who is asking the question.
From a caretaker’s perspective, any relevant matter or correspondence that comes to a resident manager should be passed on to the body corporate to be part of the body corporate’s record. It is very well established that CCTV footage is part of this.
If a resident makes a complaint about people swimming in the pool outside of the operating hours, that information should be passed on to the body corporate to form part of the record and for the committee to act upon.
As a lot owner, a resident manager has the same rights and responsibilities as all other members of the Body Corporate. They have just as much right to quiet enjoyment of their property as any other owner.
Letting agents have different responsibilities
However, with their letting agent’s hat on, a resident manager faces a different set of responsibilities when it comes to privacy.
The letting agent has a fiduciary agreement with the owners they represent through the letting pool. This is the same type of relationship that lawyers have with their clients, where you must put the interests of your clients first.
A question from another lot owner or the Body Corporate committee about the identity or contact details of a particular owner or tenant should be met with a polite but firm, ‘I can’t help you’.
That information is part of a private relationship between the resident manager as letting agent and the owner of the relevant lot.
Privacy laws under review
Up until now, most body corporates have not been subject to the Commonwealth Privacy Act, as their annual turnover is usually below the benchmark level of $3m.
However, as outlined by my colleague Anitah Kumar from Redchip Lawyers, the Federal Government is considering removing that exemption, meaning many strata businesses could become subject to laws about safeguarding consumer information, requiring comprehensive privacy policies.
From a body corporate perspective, there really is no such thing as private information. All emails, correspondence and contact details of lot owners form part of the body corporate record.
By law, an interested party cannot be denied access to those records. There are very rare exceptions to this, primarily relating to defamation and advice that is legally privileged.
Body corporate can’t refuse access to records
An adjudicator’s order in the Queensland Body Corporate and Community Management Commission made in May 2024 shows the law comes down decidedly in favour of the interested party’s right to access body corporate records.
In a case involving Winchcombe Place in Brisbane, the body corporate had refused a lot owner’s application for a copy of the body corporate roll.
The adjudicator found the body corporate had not complied with its responsibilities under the legislation, noting: “Regardless of its opinions on the ‘community benefit’ of records being disclosed, the committee has no authority to withhold records from lot owners.”
A resident manager facing a request for information should direct the inquiry through to the Body Corporate Manager.
And if they feel they are being unfairly pressured to release any information, it’s always wise to seek legal advice.
