Production of Bodies Corporate’s records – Fishing anyone?
How often do body corporate managers receive requests from lot owners asking them to send copies of all documents relating to….[insert topic here].
That then begs the question of whether the body corporate manager must produce the documents in response to the request, or whether the body corporate manager can simply refuse to respond on the basis that the request is nothing more than a “fishing exercise” and tell the requesting party to simply inspect the body corporate’s records to locate the documents themselves.
In this article we discuss to what extent the body corporate must comply with requests to produce the documents.
The body corporate has a duty to record rolls, registers and other relevant documents as well as provide reasonable access to them. An interested person (eg a lot owner) is entitled to, at their own discretion, reasonable access to or copies of, body corporate records. If the person seeks access or copies of the body corporates records, the Regulation Module specifies the applicable fees to be paid.
To view or receive copies of records, a written request must be given to the body corporate and the appropriate fee must be paid. The body corporate must let the person see or receive copies of records. To fail to do so, is an offence under the Act with a maximum fine payable of $2,523. That said, the prohibitive costs of a lot owner pursuing the offence might prevent such action being taken.
In relation to a request for copies, a clear identification of which documents within the records are required is necessary. If the required records and required dates cannot be clearly identified, the person can search the records to find the documents or hire an agent to do so on their behalf. If a search of records is conducted, a search fee will apply.
Ocean Plaza Apartments
An useful discussion of what level of specificity is required when identifying documents to be produced from the body corporate records, can be seen in Ocean Plaza Apartments.
The Adjudicator made the following helpful comments:
“The fact that there are alternative means of accessing the records does not alter the inherent right of a person to request copies of records. A body corporate cannot refuse to supply a copy of a record that a person is entitled to under section 205 of the Act, simply because the person could, for example, search for the document themselves online or inspect the records.”
…A person requesting copies of records does not need to identify the exact date, author or details of the document. However, they should provide a reasonable degree of specification so the record can be readily identified by the body corporate. For example, they could request a particular class or type of document – such as minutes within a specific date range or letters from a particular person. In fulfilling a request under section 205 of the Act, a body corporate will need to search through its records, but is not necessarily required to read through each document to identify whether it contains particular information sought by the requester.
Section 203 of the Accommodation Module sets out the only fees that can be charged to an owner or other interested person to inspect or obtain copies of body corporate records. Therefore a body corporate is not entitled to impose any further charge on an owner for costs relating to its compliance with its obligations under section 205 of the Act.
Frequently bodies corporate enter into a contractual arrangement with a BCM that includes charges for costs associated with retrieving and supplying copies of records. However owners and other interested persons seeking records are not personally a party to that contract. Therefore any fees charged by the BCM would payable by the body corporate only and not by the interested person. There is no legal authority for the body corporate to pass those fees on to the person accessing the records.”
Certain groups of documents (relating to works to be carried out on the lot owner’s balcony) were requested by the applicant in that matter, as follows:
- All committee minutes relating to the subject program of works – this was not sufficient – the Adjudicator stated that the body corporate should not be required to review every set of committee minutes over an unspecified period to ascertain whether they relate to the works in question;
- Copy of contract between the body corporate and the head contractor performing the works – this was a sufficient description of the documents to be produced;
- Copy of the head contractor’s quotations and acceptance for the works– this was a sufficient description of the documents to be produced;
- If no head contractor, copy of all contractors quotations (tilers, water proffers, etc) and acceptance of quotations – this was a sufficient description of the documents to be produced;
- A printout of all payments made to any third party in relation to the program of works – in respect of this request, the Adjudicator stated (emphasis added):
“It is unclear whether any specific document has been compiled which collated all payments made in respect of the works, and the Body Corporate has not commented on this. The obligation to provide copies of records does not extend to an obligation to interrogate documents and generate a summary of information contained in those documents. However it may be that this information has previously been collated, whether through a report on the works or the statement of accounts for the financial year in question.  If a document exists which collates all payments made in regard to the works on the Lot 116 balcony, the Body Corporate should supply this to the applicant. If it does not exist, it should advise the applicant accordingly.”
- A copy of guarantees for the works completed by each contractor – this was a sufficient description of the documents to be produced;
- Copies of all correspondence from any unit owner to the body corporate requesting for the works to be undertaken and responses – in respect of this request, the Adjudicator stated (emphasis added):
“I do not consider the Body Corporate is required to review every item of incoming correspondence over an unspecified period to ascertain if they originate from a lot owner and relate to a request for the works. Similarly, I do not consider the Body Corporate is required to review every item of outgoing correspondence to ascertain if they amount to a response to a request for work. Accordingly I do not intend to make an order regarding this item.
However, if the applicant were to request copies of all incoming and/or outgoing correspondence over a specified period, or to/from a specified person, he may make a new written request in those terms.”
- Copy of any engineer’s report in relation to inspection during the progress of the works and final inspection certificate – this was a sufficient description of the documents to be produced;
In Gazelle Villas the adjudicator held that the applicant’s request for copies of:
- Those quotes referred to in Motion 15 of the 2015 AGM minutes (for a CCTV system and a “fencing” project);
- The AGM records requested in his facsimile of 14 July 2015 to the body corporate manager (2015 AGM Tally sheet and voting papers);
were of a level of specificity that would allow the body corporate to readily locate them without difficulty as the applicant provided subject matters, dates and times for which they wished to be copied.
Those decisions reinforce that an applicant must be sufficiently specific in a request for the body corporate to produce copies of documents, such that the body corporate is able to accurately identify the correct records to copy – and without having to conduct any significant review of the content of the document to identify if it should be included or not.
If the applicant is not sufficiently specific, the body corporate should provide relevant instructions to the applicant as to what options are available should they still wish to access these records (ie the method(s) by which the records can be inspected).
Providing the body corporate manager’s terms of engagement provide for it, the body corporate manager is entitled to be paid its fees for searching the records to find any documents to be produced, irrespective of whether the body corporate can recover that cost from the requesting party. If the body corporate cannot recover its costs from the requesting party, then that is just another cost the legislation has left for the body corporate to bear.
Finally, it is also important to understand the nature of some documents (or parts of documents) that should be excluded from the search or excluded from being given to the person, including:
- Any document/part the subject of any privilege claim – such as legal professional privilege; and
- Any document/part that contains defamatory material.