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  • #45398
    AvatarColonel Schultz
    Flatchatter

    Based on Legge v Network Strata Services Pty Ltd (Strata and Community Schemes) [2013] NSWCTTT 45 (8 January 2013.

    I am not satisfied that an address for service of notices is “information … about an individual” within the definition of personal information in section 6 of the Privacy Act 1988

    Section 6 defines personal information as;

    personal information” means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

    (a)  whether the information or opinion is true or not; and

    (b)  whether the information or opinion is recorded in a material form or not.

    To expand on that the OAIC website states;

    Common examples of personal information

    Information about a person’s private or family life.

    A person’s name, signature, home address, email address, telephone number, date of birth, medical records, bank account details and employment details will generally constitute personal information.

    Therefore the name, address and email are all considered personal information under the Privacy Act.

    However, As per the descisions in Legge case I would argue that the email is also exempt on the basis that the name and address is also exempt.

    Legge at 15

    Contrary to the assertion in the respondent’s correspondence to the applicants, the National Privacy Principals do not “supersede” the provisions of the Act which require access to be given to the strata roll by a lot owner (or anyone else authorised to make a request) who has made a request for access under section 108 of the Act. The consent of lot owners to the disclosure of their addresses for service is not required. Addresses for service must be provided for the purpose of the strata roll and lots owners have a right to inspect the strata roll when a request is made under section 108 of the Act.

    #45414
    Jimmy-TJimmy-T
    Keymaster

    OK, so show me one instance where an owners corp or strata manager has been ordered to reveal the email addresses of owners to another owner, and that has established a precedent.

    Just one …

    This is such a significant interpretation of the Act that if it occurred it would have been recorded.

    #45423
    AvatarColonel Schultz
    Flatchatter

    I don’t really see the relevance.

    The point is that if the email is recorded on the strata role then it’s part of the strata role.

    Therefore, as in the legge case anybody properly authorised can inspect the strata role and all information listed in it including the email address.

    #45442
    Jimmy-TJimmy-T
    Keymaster

    The Legge case was in 2013.  The Australian Privacy Principles were updated in 2014.

    Privacy Principal 6 (below) applies most directly and it basically says that when information was provided (e.g. email addresses) for a principle purpose, it may not be revealed for use in a secondary purpose without the permission of the individual concerned or “the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order.”

    Now, I am in favour of email addresses being made available to all owners.

    However, I can understand the argument of strata managers etc who might say that the principal purpose for gathering email addresses is the distribution of official owners corp documents, however communications between strata owners is a secondary purpose and therefore covered by privacy laws requiring the consent of the individual owners concerned.

    I’m not saying that this point of view is incontrovertibly correct – I would just like to see a tribunal or court ruling before I went against the prevailing opinion in the strata industry.

    In the Legge case, the CTTT Member ruled that the privacy laws did not supersede the strata Act because they specified that restrictions did not apply to information required by law (such as owners postal addresses). Email addresses were not even mentioned.

    If there has been a similar NCAT ruling on email addresses, I haven’t seen it, and I can understand why strata managers are reluctant to reveal email addresses.  Email addresses are much more powerful means of direct communication than postal addresses and it may well be that the Tribunal would treat them differently if called upon to adjudicate.

    NB:  In the section from the Australian Privacy Principles below, an “APP Entity” means the organisation in question, in our case, an owners corporation.

    6   Australian Privacy Principle 6 — use or disclosure of personal information

    Use or disclosure

    6.1 If an APP entity [like an owners coporation] holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:

    1. the individual has consented to the use or disclosure of the information; or
    2. subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.

    6.2 This subclause applies in relation to the use or disclosure of personal information about an individual if:

    1. the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose and the secondary purpose is:
      1. if the information is sensitive information — directly related to the primary purpose; or
      2. if the information is not sensitive information — related to the primary purpose; or
    2. the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or
    3. a permitted general situation exists in relation to the use or disclosure of the information by the APP entity; or
    4. the APP entity is an organisation and a permitted health situation exists in relation to the use or disclosure of the information by the entity; or
    5. the APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.

    Note: For permitted general situation, see section 16A. For permitted health situation, see section 16B.

    6.3This subclause applies in relation to the disclosure of personal information about an individual by an APP entity that is an agency if:

    1. the agency is not an enforcement body; and
    2. the information is biometric information or biometric templates; and
    3. the recipient of the information is an enforcement body; and
    4. the disclosure is conducted in accordance with the guidelines made by the Commissioner for the purposes of this paragraph.

    6.4 If:

    1. the APP entity is an organisation; and
    2. subsection 16B(2) applied in relation to the collection of the personal information by the entity;

    the entity must take such steps as are reasonable in the circumstances to ensure that the information is de-identified before the entity discloses it in accordance with subclause 6.1 or 6.2.

    Written note of use or disclosure

    6.5 If an APP entity uses or discloses personal information in accordance with paragraph 6.2(e), the entity must make a written note of the use or disclosure.

    Related bodies corporate

    6.6If:

    1. an APP entity is a body corporate; and
    2. the entity collects personal information from a related body corporate;

    this principle applies as if the entity’s primary purpose for the collection of the information were the primary purpose for which the related body corporate collected the information.

    Exceptions

    6.7 This principle does not apply to the use or disclosure by an organisation of:

    1. personal information for the purpose of direct marketing; or

    2. government related identifiers.

    #45463
    scotlandxscotlandx
    Strataguru

    An APP entity is a business that has a turnover of $3 million or more, I am not sure a strata scheme is a business, and any scheme with less than $3 million coming in a year would be exempt anyway.

    #45468
    AvatarColonel Schultz
    Flatchatter

    The strata role is the property of the owners corporation.

    14 at legge states

    Part of the primary purpose of the collection of lot owners’ addresses and their inclusion on the strata roll is so they can be contacted by other lot owners and the Executive Committee of the Owners Corporation.

    Thirdly, even if that is not part of the primary purpose for the collection of lot owners’ addresses, disclosure of the information on the strata roll is required by section 108 of the Act, which means that disclosure of the addresses falls within the exception set out in Clause 2.1(g).

    #45502
    Jimmy-TJimmy-T
    Keymaster

    As has been pointed, out Legge was resolved before the current Australian Privacy Principles were updated.  So, again, show me a ruling that proves your point or accept, please, that this is just your opinion.

    #45518
    AvatarColonel Schultz
    Flatchatter

    The principles are basically the same; clause  2.1 g in schedule 3 is very similar to APP 6 (2) which is a reference to being information required by a Law or Act.

    I can ask the same question, do you have a case to prove me wrong?

    Let’s just say we agree to disagree on this one as neither of us are Judges in any court or tribunal nor are we the privacy commissioner.

    • This reply was modified 4 months ago by .
    #45528
    Jimmy-TJimmy-T
    Keymaster

    Whether we agree or disagree is irrelevant.  As quoted above from the SCA, strata managers are going to refuse to reveal the email addresses of strata owners on privacy grounds and no one has, as far as I know, successfully challenged that.

    So there’s no point in us telling Flatchatters that they are entitled to see the email addresses of their neighbours when they will not be allowed to do so.

    I plan to raise this with the Attorney-General’s office to get a definitive ruling … if I can.

    Watch this space.

    #45535
    AvatarColonel Schultz
    Flatchatter

    I am telling flat chatters that as a lot owners they have every right to inspect the strata role. That’s the law.

    #45553
    Jimmy-TJimmy-T
    Keymaster

    Colonel Schultz said:

    I am telling flat chatters that as a lot owners they have every right to inspect the strata role. That’s the law.

    That is not in dispute, but you are also telling Flatchatters they have the right to obtain other owners email addresses through the strata roll and that is strongly disputed by strata managers, precisely the people who have the power to provide or withhold that information.

    Your opinion is precisely that and only that. You have provided neither proof nor precedent that counters prevailing practice and I would strongly caution anyone against embarking on a potentially costly Tribunal action to get email addresses based on your opinion alone.

    Also, your opinion would carry a bit more weight if you took the trouble to spell strata roll correctly.  We all make occasional mistakes but yours is a consistent error, even when you copy and paste material where it is correctly spelt.

    #45565
    AvatarColonel Schultz
    Flatchatter

     

    I was commenting to posts in this thread about people who are being told point blank by strata managers that the strata roll cant be given out due to privacy concerns.

    This is of course absolute rubbish.

    I’m not aware of any law that allows for any information to be redacted or removed  from the strata roll when an inspection takes place either.

     

     

     

     

    #46470
    AvatarDavid Ng
    Flatchatter

    Perhaps some people need assistance in creating an email alias that goes into their main mailbox but doesn’t identify them by name?

    As Secretary of my small OC I prefer email correspondence to paper. I also have bills come by email where ever possible. Leaves a great audit trail.

    For example having the insurance quote come via email means that it is easy to distribute for comments and get feedback which are then on the record. I can set a time limit for comments and then act according to the feedback. It also means that all owners with a mortgage can have their own copy to prove to their bank that the building is appropriately insured.

    It is easy to put into the official digital record and you can see what was requested and when it was actioned.

    I have advised new owners that email is the preferred method of communication. It also means I’m not woken up when sleeping during the day with shift work.

    Finally, if you do get a person who makes frivolous complaints or abuses the committee, the emails are great to have if you need to get an external body involved.

    #46500
    Jimmy-TJimmy-T
    Keymaster

    David Ng said: As Secretary of my small OC I prefer email correspondence to paper. 

    Yes, but what do you do if someone in your scheme wants everyone’s email addresses? That’s not a challenge – I genuinely want to know how you would handle it.

    #46544
    AvatarColonel Schultz
    Flatchatter

    Assuming you mean a request from a lot owner to see the emails, I would take that as a request for an inspection of the records and handle it that way.

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