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  • #8690
    Jimmy-T
    Keymaster

      The discussion of invasions of privacy, imagined or otherwise, started on another topic HERE.  But I’ve decided to hive off the the issue of invasion of privacy to a separate section which I will kick off with this letter from strata lawyer Suzie Broome at our sponsors Makinson & d’Apice.

      Dear Jimmy,

       The general public’s understanding about the protection of privacy is, frankly, somewhat overdone – principally because of a misunderstanding as to what is private information and what is to protected under the Privacy Act and, generally, what is intended to be protected.

       There are two pieces of legislation designed to protect private information: the Privacy Act 1998 (CTH) and the Privacy and Personal Information Act 1988 (NSW). 

       You can generally forget about the NSW legislation – it refers to public authorities and agencies such as Government departments, Local Government departments, hospitals etc. etc.

      The Commonwealth Privacy Act has much wider implication and includes within its ambit “organisations” which are defined to include a body corporate.  On that basis an Owners Corporation is an organisation that is bound by the Commonwealth Privacy Act. 

      Having said that the aim of the Act is to protect the National Privacy Principles. 

       Broadly speaking, those principles protect the way in which and the purposes for which, and the disclosure of, personal information including sensitive information.  Personal information has a very wide definition as being information or an opinion about an individual whose identity is apparent or can be reasonably ascertained from the information or opinion.  I think that the address of a person is probably personal information.

      Sensitive information is much more strictly defined as meaning information about an individual’s racial origin, political opinion, member of political association, religious beliefs etc. etc.  An address of an individual is not sensitive information.

      It seems to us that what the Privacy Act restricts in relation to personal information constituted by an address of an individual, is an obligation on the organisation to take reasonable steps to protect that personal information from misuse and loss from unauthorised access, modification or disclosure.

      So, it would be a breach of the National Privacy Principles for a strata managing agent to provide a direct marketing organisation with a list of names and addresses taken from the strata roll.  That would clearly be a misuse of information and probably also unauthorised. 

      However, section 108 of the Strata Schemes Management Act 1996 requires that an Owners Corporation (which would be the organisation in question) must make available for inspection by an owner, mortgagee, or covenant chargee of a lot, or a person authorised by any of them, upon their request, the strata roll.  The obligation on the Owners Corporation carries through to its agent, the strata managing agent. 

      The strata roll will contain the lot numbers, the names of the owner or owners and address for service.  That address, of course, may be either the lot itself or, in the case of tenanted lots, is usually the address of the real estate managing agency. 

      So, in summary, it cannot be an offence for an owner to access the strata roll and obtain the names and addresses of all of the owners of lots in the strata schemes.  Similarly, it cannot be an offence for owners in a strata scheme to communicate directly with other owners about matters that concern, or should concern, other owners in the strata scheme.

      Obviously, if the content of the communication itself is defamatory, that is another matter.  That may be actionable under different laws.  But the simple act of obtaining names and addresses of owners of lots in a strata scheme and communicating directly with those owners is not, in our opinion, a breach of the privacy legislation or any other law of which we are aware. 

      Yours sincerely,

       

      Suzie Broome

      Partner

      Makinson & d’Apice

      The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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    • #17820
      Felix
      Flatchatter

        i have read Suzie’s comments with interest but want to get something straight.

        Does our SM have to provide me with a copy of the strata roll if i ask for it ?

        I ask this because he has refused to provide me with a copy when I asked for it when i was the Sec. of the EC.  I am not the Sec. of the EC now.

        He said it would have to be approved by the OC at an AGM.

        I might add that I already had a previous copy dated about 2 years before.

        Following his not providing me with the Strata Roll, he proceeded to provide one to the Sec. a short time later and then one to the Chair.

        What would you suggest I do?

        I must add that this SM polarises as they see fit!

        #17823
        Jimmy-T
        Keymaster
        Chat-starter

          As an owner you are entitled to see the strata roll for a modest fee. You may also be allowed to photocopy it (possibly with charges for that too). The Secretary of a strata plan would normally be given access to the strata roll as part of their function – the chair? Less clear.

          The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
          #17824
          Felix
          Flatchatter

            I was hoping to make it clear whether or not the SM should provide a hard copy or e-mail to the Sec. of the EC to keep the strata roll as stated in the Strata Living booklet of Fair Trading.

            If there is not much cooperation from the SM in informing the Sec. regarding changes of tenants and real estate agents managing the properties, then how is the Sec. able to keep an up to date strata roll?

            Every one knows when a sale takes place but even then the name and address of the new Owners contacts are sometimes not passed on to the Sec.

            #17827
            basjan27
            Flatchatter

              Hi.. this is a great thread.  We have an owner, recently replaced on the EC, who claims that the new EC is not permitted to contact her by mail directly for “privacy” reasons, and is demanding that official notices must be sent to the Strata Manager, who will then forward them on to her. Oh, and we’ll also be required to add an additional four days to the notice period to account for the mail being forwarded.. and pay for the additional time and postage required by the SM!   

              A tangential question on privacy: Former EC member claiming right to take documents from a legal file recently returned by the OC’s solicitor.  Says the documents are privileged, since they were originally obtained by the EC member and provided to the solicitor for their research.  

              Any ideas how to navigate this one?

               

              Thanks much 

              #17830
              scotlandx
              Strataguru

                1. Any strata notices to the owner should be sent to the name and address on the strata roll.  The owner can put whatever details she likes on the strata roll, and that is where the notices go.  Privacy has nothing to do with it.

                There is one address for service of notices, that is the address on the strata roll.  It is not up to the OC to send notices to addresses other than those on the strata roll and in practice that would create a lot of problems.

                If the owner wishes to appoint the strata manager as their agent for the purposes of receiving strata notices, that is a matter between the owner and the strata manager.  That is, she could enter into an arrangement with the strata manager to have his addresss on the strata roll and forward the notices on to her address, and she can pay him to do that. 

                There is no requirement for you to add an extra four days notice, provided you send the notices to the address on the strata roll, nor is it up to the OC to meet additional costs because, quite frankly, someone is being a pain in the neck. 

                (sorry, but this sort of thing makes me really cross)

                2. In relation to the documents on the legal file, as a general rule privileged documents are those between a solicitor and client where the purpose of the documents is for the giving of legal advice, or communications between a client, solicitor and other persons for the dominant purpose of anticipated or exisiting litigation.

                What are the documents?  It doesn’t sound like they fall into the category of privileged documents.  If they were, why would the EC member have given them over?  Note you also have to claim privilege to keep it.

                If they are just basic documents and they did originally come from the EC member, which is what they sound like as they were provided for research, then just copy them and give back the originals.

                 

                  

                #17856
                basjan27
                Flatchatter

                  Hi scotlandx, thanks. That’s what we thought.  And yes, someone is being a pain in the neck! 

                  The documents are all related to research for possible litigation, and I agree that our position should be that any documents obtained by an EC member (or even an Owner) and provided to our solicitor for that purpose, are the property of the OC.  Copies are fine, but we shouldn’t allow anything to be removed from the file. 

                  Thanks 

                  #17858
                  Jimmy-T
                  Keymaster
                  Chat-starter

                    Below is the content of an email from the Office of the Australian Information Commissioner in response to this question:

                    Recently we have encountered a situation whereby an owner in a strata complex in NSW sent an email out to other owners in the same strata complex, disputing the contents of an official email sent out by the secretary.

                    On the email, the authors alerted fellow owners to the existence of a website addressing strata issues within the owners corporation (body corporate).

                    Subsequent emails carried a prominent “remove” option which some owners used and their names were immediately removed from the mailing list.

                    The executive committee are saying that the original email (and subsequent emails, even with the “remove” option) was illegal and a breach of privacy because permission had only been given by owners to the committee for their communications.

                    The alleged offenders are saying that the communication was within the owners corporation (of which all owners are members by default) and since all contact details of the Owners are available to other owners by law, then no breach has occurred.

                    What’s your take on this?

                    This is what the OAIC replied:

                    The Office of the Australian Information Commissioner (the OAIC) regulates the Privacy Act 1988 (Cth) (the Act) which sets out the manner in which Australian, ACT and Norfolk Island government agencies, and many private sector organisations, handle personal information.

                    The Act does not cover the actions of individuals acting in a personal capacity.  This means as information is being handled by a person (the property owner) that is doing so for their own purposes, and not in the course of their employment duties, this matter would not be covered by the Act.

                    I hope this information has been useful. If you have any further enquiries, please contact the OAIC Enquiries line on 1300 363 992.

                    There you go – more proof that you can’t dress up Executive Committee secrecy and call it privacy.  That’s a win for the good guys.

                    The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
                    #17865
                    ccbaxter
                    Flatchatter

                      Thanks and great of you to sort this out JimmyT.

                      I have started to think strata managers keeping owners’ contact details ‘private’ and insisting everything goes through them is a way they protect their turf

                      #17875
                      33tony
                      Flatchatter

                        @JimmyT said:
                        Below is the content of an email from the Office of the Australian Information Commissioner in response to this question:

                        Recently we have encountered a situation whereby an owner in a strata complex in NSW sent an email out to other owners in the same strata complex, disputing the contents of an official email sent out by the secretary.

                        On the email, the authors alerted fellow owners to the existence of a website addressing strata issues within the owners corporation (body corporate).

                        Subsequent emails carried a prominent “remove” option which some owners used and their names were immediately removed from the mailing list.

                        The executive committee are saying that the original email (and subsequent emails, even with the “remove” option) was illegal and a breach of privacy because permission had only been given by owners to the committee for their communications.

                        The alleged offenders are saying that the communication was within the owners corporation (of which all owners are members by default) and since all contact details of the Owners are available to other owners by law, then no breach has occurred.

                        What’s your take on this?

                        This is what the OAIC replied:

                        The Office of the Australian Information Commissioner (the OAIC) regulates the Privacy Act 1988 (Cth) (the Act) which sets out the manner in which Australian, ACT and Norfolk Island government agencies, and many private sector organisations, handle personal information.

                        The Act does not cover the actions of individuals acting in a personal capacity.  This means as information is being handled by a person (the property owner) that is doing so for their own purposes, and not in the course of their employment duties, this matter would not be covered by the Act.

                        I hope this information has been useful. If you have any further enquiries, please contact the OAIC Enquiries line on 1300 363 992.

                        There you go – more proof that you can’t dress up Executive Committee secrecy and call it privacy.  That’s a win for the good guys.

                         

                        Interesting to read, thanks.

                        In my strata plan, the secretary has decided to pass & register a by-law for correspondence. This by law now states that all matters are to be emailed only to the secretary and not to any other owner unless that owner has given their permission to recieve emails from that owner.

                        This is made more complex as all the properties are rentals and no owner actually lives at the property.

                         

                        Can someone pass a by law that is in effect, working outside of the strata plan?

                        I have been unable to find any laws that restrict communication between people in the form of emails.

                        It’s bound to go to a tribunal with breaches made already and threats from the paranoid secretary are now circulating.

                        #17881
                        scotlandx
                        Strataguru

                          It sounds like you have an interesting secretary.  Do you have a strata manager?

                          You say that the secretary passed and registered the by-law, was the by-law approved by the owners at a general meeting?  The secretary can’t approve a by-law by themselves so if that is what they did, the by-law would not be valid.  However, if it has been registered you need to get on to it because after 2 years it may be hard to challenge.

                          If I were you while this purported by-law is in place I would just ignore it, as you say there is no law preventing email between people and if it went to a Tribunal it would be likely to be struck down, depending on how it is drafted.

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