[JAE]

Another Tribunal decision which enabled a strata company to withhold “private” strata records from an owner  successfully appealed.

http://www.austlii.edu.au/cgi-<wbr />bin/viewdoc/au/cases/nsw/<wbr />NSWCATAP//2020/192.html

Walker v The Owners – Strata Plan No 1992 [2020] NSWCATAP 192 (16 September 2020) at 46

Properly construed, if an applicant establishes a right to access information under the SSM Act, as we have found in this case, then there is generally no discretion enlivened other than with respect to the “manner in which the information is to be supplied or made available” to an applicant under sub-s (3). We say that the discretion is generally not enlivened because absent a reason to relieve the owners corporation from the mandatory obligation to give access under s 182, the Tribunal should make an order under s 188(1) (ie. supply information) or under s 188(2) (ie. supply or make available a record or document). The use of the word “may” in s 188 suggests that the Tribunal may refuse to make an order under s 188(1) or (2) in some circumstances. In our view, there was no reason for the Tribunal to refuse to make such an order in the circumstances of this matter.

[JAE]

I’m not sure why you think the Privacy Act would compel anyone to supply information since its purpose is to ensure that it isn’t except in appropriate circumstances.

The 13 Australian Privacy Principles (APPs) commenced on 12 March 2014. They regulate the handling of personal information by Australian government agencies and private sector organisations with an annual turnover of $3 million or more (“APP Entity”). The 13 APPs are contained in schedule 1 to the Privacy Act 1988.

This Act compels such an APP Entity to have a clearly expressed and up to date policy about its management of personal information. The policy must include the following information (amongst other things):-

• the kinds of personal information that the entity collects and holds;
• how the entity collects and holds personal information;
• the purposes for which the entity collects, holds, uses and discloses personal information;
• how an individual may access personal information about the individual that is held by the entity and seek the correction of such information;
• how an individual may complain about a breach of the Australian Privacy Principles, or a registered APP code (if any) that binds the entity, and how the entity will deal with such a complaint.

My strata company is an APP and in breach of the Act because it has never published a privacy policy.  The unpublished version, prepared by a lawyer who was simultaneously arguing that the Privacy Act prevented the strata company (and the lawyer’s real client – the strata manager), states:

The Strata Company is subject to a number of obligations under the Strata Act. These obligations will override the Privacy Act to the extent of any inconsistency.

Assuming the legislation in other Australian states also obligates the strata company to allow strata records to be inspected the above applies everywhere.

[JAE]

Having read the council’s correspondence they no doubt agreed in ignorance of the fact that their communications could be inspected…why do people who get elected to manage a strata company act as if they and only they are entitled to know what they are doing with the property and funds of all owners?  it is especially irksome when the people who do this demanded full transparency previously.

[JAE]

As a WA strata owner I applied to inspect all strata records in March 2017 and, despite the committee approving the request, obtaining orders from the State Administrative Tribunal,  [2018] WASAT 15),  all excluding privileged documents to be made available, I still haven’t seen the most significant records (including communications between owners/strata manager/council members) which “do not sit in the strata records” or are deemed by the strata manager to be private/confidential/privileged.

The orders, made as requested by the strata company, obligated it to provide electronic copies of all strata records excluding those which are privilegrd IF provided with an undertakung to not share the information with ANYONE. On appeal, the undertaking requirement was negated [2019] WASCA 190 AND the strata company must satisfy the SAT that withheld records are privileged.

Having not done that it is currently liable for prosecution for contempt of court and continues to blame ME for the impact of litigation on our insurance premiums and the insurer’s decision to increase the excess for management committee cover from $1k to $15k while capping cover to $100k.

It has become obvious that even the SCA does not understand relevant legislation and the belief of many strata owners is very wrong.  The legislation exists to ensure transparency and protect owners fron unscrupulous, unethical and self-serving conduct.  Oppose it at your peril.

FYI

The Privacy Act has no application, irrespective of an organisation’s turnover, when a the organisation is obligated by legislation to allow its records to be inspected because:

PRIVACY ACT 1988 – SECT 3
Saving of certain State and Territory laws
It is the intention of the Parliament that this Act is not to affect the operation of a law of a State or of a Territory that makes provision with respect to the collection, holding, use, correction or disclosure of personal information (including such a law relating to credit reporting or the use of information held in connection with credit reporting) and is capable of operating concurrently with this Act.</p>
Note:          Such a law can have effect for the purposes of the provisions of the Australian Privacy Principles that regulate the handling of personal information by organisations by reference to the effect of other laws.

Consequently if legislation compels a strata company to allow a person to inspect strata records, whatever is contained in them (including email addresses, arrears, complaints against neighbours and other information generally considered to be “private” or “confidential”) must be provided without alteration.  The only records that can be lawfully withheld are communications between the strata company and its legal advisor regarding threatened or anticipated litigation involving the owner who requests to inspect the records IF privilege is not waived by sharing it with a 3rd person (note: other owners are not 3rd parties but the strata manager may be).

Strata managers, council members and/or owners who do not want information to be seen by persons who are eligible to inspect strata records should not provide it (even anonymously) [in the first place] because if wrongfully withheld the strata company commits an offence…adherence to the SCA policy or “protecting the privacy of others” is NOT a valid defence.

 

[JAE]

I’ve repeatedly requested the ability to inspect all strata records including correspondence received and sent by the council of owners and much more…the State Administrative Tribunal agreed that the Privacy Act was not grounds to withhold records and ordered that I could inspect “all requested documentation excluding that which is privileged” … 18 months later I’m still waiting!

The strata manager (and current council members) persist in asserting that records can’t be provided because of privacy concerns and that the records I want to inspect either aren’t strata records (tender documents re the facilities manager), belong to the strata manager (data entered into Strata Master) or don’t exist (data not extracted/reports not generated).

I’m seeking the appointment of an administrator and would really appreciate assistance formulating the argument that the strata manager does not own the records and is obligated to extract data from databases and put into a format that can be inspected.

[Author]

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