REQUESTS FOR STRATA CORPORATION RECORDS: WHAT DO YOU DISCLOSE?
Managing a strata corporation can be challenging at the best of times. From enforcing Bylaws to maintaining and repairing the corporation’s property, volunteer strata councils are often pushed out of their comfort zones. This can certainly be true when strata councils receive requests for copies of the corporation’s records and information and are forced to determine what, and how much, to disclose. The lack of fulsome disclosure may place the strata council off-side of the law and the disclosure of sensitive material may compromise an individual’s privacy.
The Strata Property Act (“SPA”) requires a strata corporation to retain certain records, including correspondence it receives, and to make these records available for inspection by others with standing under the SPA. Specifically, within two weeks of receiving a request by an owner, or a tenant who has been assigned the right to inspect documents, and persons authorized in writing by an owner or an assigned tenant, the strata corporation must provide the retained record(s) for inspection.
This disclosure requirement can give rise to privacy issues, particularly when the information to be disclosed contains personal information, not only of the document’s author, but of another individual.
Under the Personal Information and Privacy Act (“PIPA”), consent to collect the personal information contained in correspondence, but not necessarily to disclose it to others, can be implied if the information is about the individual providing it. Often, however, correspondence to a strata corporation will contain sensitive, personal information about another individual, either through a bylaw infraction complaint or the provision of medical/financial information. As such correspondence is a record received by the strata corporation, it is subject to inspection.
As noted above, upon request, a strata corporation must make correspondence and other records received or sent by the strata corporation available for inspection. On June 22, 2015, the Office of the Privacy Commissioner updated the guidance it provides strata corporations with respect to the disclosure of records and information by stating, in its Privacy Guidelines for Strata Corporations and Strata Agents, that a strata corporation has no authority under PIPA to redact personal information contained in any correspondence that an authorized person is entitled to see under the SPA, including complaint letters related to infractions of bylaws or rules infractions.
It is important to keep in mind, however, that the 2015 OIPC Guidelines are not legislation but, rather, a tool for strata corporations to assist with interpreting and applying PIPA to requests for information that may contain personal information. The Civil Resolution Tribunal of British Columbia, in a recent decision, followed the Guidelines closely when it considered a strata corporation’s response to requests it received for records of bylaw infraction complaints in the context of a strata corporation’s disclosure obligations under the SPA. In this case, the strata corporation provided the requested records but had redacted what it considered sensitive, personal information. The CRT held that the strata corporation had breached its obligations under the SPA when it did not provide unredacted copies of the requested records.
Of concern, not only with the decision of the CRT but with general judicial consideration to date, is the lack of analysis with respect to the implication of PIPA’s overriding provision contained in section 3(5), which provides:
If a provision of the Act is inconsistent or in conflict with a provision of another enactment, the provision of the Act prevails unless another Act expressly provides that the other enactment, or a provision, applies despite this Act.
This overriding provision is further emphasized when considering section 23 of PIPA. Section 23 of PIPA places limits and even prohibits disclosure of personal information when the disclosure could reasonably be expected to threaten another individual’s safety, physical or mental health, or when disclosure would reveal personal information of an individual when that person does not consent to disclosing his or her identity. Although section 23 of PIPA appears to favour disclosure when redaction can address these issues, it is not hard to imagine that certain complaint letters between residents of a strata corporation may fall within the category of disclosure prohibited by PIPA.
The law in this area is murky at best. Given the broad operation of section 3(5) of PIPA, and the absence of express provisions within the SPA that supersede the authority of PIPA with respect to matters of disclosure, it appears that redacting or even withholding requests for complaint letters that trigger section 23 of PIPA may by a valid response, even when such records are otherwise producible under the SPA.
The risk of a strata corporation “getting it wrong” is real and the consequences may be both judicial scrutiny of the corporation’s record keeping as well as the expense of defending its record management.
If your strata corporation has questions regarding its disclosure obligations, do not hesitate to contact us.