This article is about privacy rules and the requirements to disclose owner contact details in Victoria. We published a Q&A a few weeks on this topic that has created discussion within the strata industry. We reached out to Phillip Leaman from Tisher Liner FC Law to provide some clarity on the topic.
Question: In Victoria, if a lot owner requests access to owner’s contact details (emails or mobile numbers) contained in the owners corporation’s register, what is the strata manager required to disclose?
Answer: There are two schools of thought.
Each owners corporation has four types of records:
- Section 144 Records- Records that are in the categories under Section 144 of the Owners Corporations Act 2006. These are records that are available for inspection by any lot owner (or purchaser) free of charge in accordance with section 146. Records include the full name and address of each lot owner, minutes of meetings, copies of resolutions, certain accounting records and a range of other documents.
- The owners corporation register– The owners corporation’s register kept in accordance with sections 147 and 148 of the Owners Corporations Act. These are records available for inspection by any lot owner (or purchaser) free of charge in accordance with section 150. The register must include the name and address of each lot owner and various other information prescribed by section 148.
- Additional records. Regulation 11A of the Owners Corporations Regulations 2018 provides that (since 1 December 2021) as follows:
“In addition to the records in Section 144 of the Act, an owners corporation must keep the following records in respect of the owners corporation-:
- The telephone number and email address (if any) of each lot owner;
- Records of any homicides (if known) which have occurred on the common property;
- The dates of any gas safety check, electrical safety check and pool barrier compliance check conducted by the owners corporation;
- Details of any outstanding recommendations for work to be completed from a gas safety check and electrical safety check;
- Notices, orders, declarations, reports or recommendations issued by a building surveyor, municipal building surveyor, public authority or under an Act relating to any building defects or safety concerns associated with the common property.”
- Any other documents it holds not expressly listed above.
A lot owner has a right to access records in accordance with section 144 or in the case of the register under section 150. Records that are subject to legal professional privilege or litigation privilege do not need to be disclosed to the extent that the comprise part of those records. Documents subject to privilege are usually legal advices from lawyers or reports not yet disclosed to the opposing party or parts of minutes of meetings where litigation is discussed.
From 1 December 2021, phone numbers and emails of lot owners are deemed part of the owners corporations records. This was a deliberate inclusion to prevent strata managers from claiming that such records were part of the strata manager’s property and ensured that when management changed hands, the phone numbers and emails were also transferred to the new manager.
However, what remains to be determined by VCAT is whether or not the inclusion of phone numbers and emails of lot owners in Regulation 11A bring those records into section 144 or whether they stand alone as separate records not able to be viewed by lot owners.
There are two schools of thought. The first is that they do not form part of section 144 and are therefore not searchable by lot owners. The second is that they do form part of section 144 or alternatively, are available to lot owners on payment of a prescribed fee.
Another school of thought is that such information is subject to the Commonwealth Privacy Act and therefore cannot be disclosed. However, this is wrong (in most cases). The Commonwealth Privacy Act only applies to organisations with revenue exceeding $3,000,000 per annum or where information is disclosed for commercial benefit. Most owners corporations do not meet the threshold and therefore, there is no proper basis to refuse access to lot owner’s details because of the Commonwealth Privacy Act. This position is further reinforced by the second reading speech where the minister confirmed that where records may contain personal information, there may be a minor interference with the right to privacy but when someone purchases a property it should be anticipated that their information may be shared in the manner proposed.
In respect to whether or not the phone numbers and emails falls into the section 144 collection available in accordance with section 146 will need to wait for formal determination by VCAT. I understand that there may be a case or two currently before VCAT seeking a decision on this very point.
In the writer’s view, Parliament was intending to cure one issue which was to ensure that managers had to transfer emails and phone numbers to the new manager when their appointment was terminated. They did not realise that lot owners need emails and phone numbers to make communication with lot owners more practical (than by post). However, the argument that a lot owner is entitled to the phone numbers and email addresses of other lot owners is compelling and it might be that VCAT will order that such records must be released on payment of the prescribed fee.
The owners corporation has the power to agree to release phone numbers and emails to lot owners and purchasers (providing it is not used for commercial gain). As a general rule, the owners corporation should in most cases choose to do free of charge. The only circumstance where they might choose not to is in circumstances where the owners corporation is concerned that the information will be used for a commercial purpose or in cases with the personal safety of a lot owner is in question.
Given the types of documents set out in Regulation 11A, it seems that the purpose of such information is for the benefit of the lot owners and committees to know and therefore should be information available for inspection (even if for a fee).
Phillip Leaman Tisher Liner FC Law E: ocenquiry@tlfc.com.au P: 03 8600 9370
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Read Next:
- VIC: Q&A Process to change the Registered Owners Corporation Rules
- VIC: The AGM Agenda, Committee Meetings and Minutes
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