This question comes up regularly. Until recently, the prevailing view was that CCTV recordings formed part of a body corporate’s official records. On that basis, they were generally available for inspection by those legally entitled to access body corporate records.
A recent adjudication, however, has complicated that position, at least to some extent.
In that matter, the adjudicator undertook a detailed analysis of the types of documents a body corporate must keep under the legislation, those it is permitted to retain, and how the term “records” should be interpreted. The decision also considered how records come into existence, including whether they are created by the body corporate itself or by third-party systems or contractors.
Ultimately, the adjudicator found that, in the circumstances of that case, the CCTV footage did not amount to a body corporate record. Accordingly, the body corporate was not required to retain the footage or provide it to the requesting party.
In reaching this conclusion, the adjudicator determined that footage generated by the scheme’s CCTV system was not automatically a body corporate record. The specific footage sought, relating to an incident between two lot owners, was found not to constitute a formal body corporate record. Instead, it was characterised as an “other document of the body corporate.”
The distinction is important. Because on that basis the footage did not fall within the statutory record keeping and disposal framework and was not captured by section 205(2) of the Act, the body corporate was not in breach of its recordkeeping obligations. However, the adjudicator emphasised that the body corporate was still required to act reasonably when responding to a request for access under section 94(2) of the Act. While there was no contravention of section 205(2), the body corporate was found to have acted unreasonably by delaying its engagement with the applicant regarding the request. On that basis, a breach of section 94(2) was established.
Does this decision establish a new general rule? Probably not. As is often the case with Commissioner’s Office determinations, the outcome turned heavily on the particular facts. The adjudicator expressly acknowledged that earlier decisions have taken a different approach and made clear that this ruling was confined to the specific circumstances before them. Nevertheless, the decision offers helpful guidance on how CCTV footage may be classified and how bodies corporate might approach its management in practice.
The full decision can be found here.