Body corporate records are accessible by anyone. So long as they pay the required regulated fee and give appropriate notice, they are entitled to inspect everything and make copies of everything – with only a few minor exceptions.
The process to do this is to send the appropriate BCCM Form 12 and to fill it out correctly. Once the form has been sent to the person holding the records (usually the body corporate manager), and once the fee has been paid, they must, within 7 days, allow the inspection or give the requested records. If they do not do so, then the body corporate may incur a fine of up to 20 penalty units, which is roughly a bit over $2,500 at time of writing.
Also, it is a 7-day time period. This is 7 calendar days, not business days. If the 7th calendar day is not a business day, then it must be done by the next business day, but that is only when a business day is relevant. If a request is made on a Monday, it must be complied with by Monday next week.
These records are generally not confidential, however, there are two exceptions. One is in the body corporate legislation, being defamatory material. If the body corporate believes certain material is defamatory, it is entitled to not provide that document or allow its inspection. This is because the body corporate will not want to be on the hook for spreading defamatory material.
The second exception is a general exception, and that relates to legal professional privilege. If a body corporate seeks legal advice, then that legal advice is covered by privilege. Because the body corporate is made up of lot owners, then the lot owners are entitled to view that material. However, if there is a risk that a lot owner may disclose that legal advice to others without the consent of the body corporate/other lot owners, then that might be withheld. This exception really is a case-by-case basis.
Other than the above, there is no exception. We have had matters where a committee says the body corporate records are “confidential”, or are covered by the Privacy Act 1988 (Cth). Body corporate records are public records and can be publicly inspected by absolutely anyone. Further, the Privacy Act simply does not apply to a body corporate.
There is also no basis for the body corporate to restrict access to records, even if it thinks it is ‘reasonable’ to do so. A committee must always act reasonably, but just because a decision seems reasonable does not mean it is lawful. In Dakota at 88 Macquarie Street [2019] QBCCMCmr 530, the committee allowed video records to be erased, and refused to provide those records because it thought it ‘reasonable’ to withhold them due to privacy concerns. The body corporate was held to have breached the BCCM Act. At [38], the adjudicator said “The obligation to act reasonably does not, in my view, empower the committee to fail to comply with an express statutory obligation or to deny an owner’s express statutory rights.”
Body corporate records are publicly available and, unless something is defamatory or covered by legal professional privilege, must be made available within 7 days of a request and the regulated fee being paid.
This article is intended as general information only and should not be relied upon as legal advice. For specific legal advice please contact us here.