Data Protection and Management of Condos ' Provision of 18 May 2006 
[doc. web n. 1332463]
Data Protection and Management of Condos – Provision of 18 May 2006
(G.U. n. 152 del 3-7-2006)
THE GARANTE PER LA PROTEZIONE DEI DATI PERSONALI
Having convened today, with the participation of Prof. Francesco Pizzetti, President, Mr. Giuseppe Chiaravalloti, Vice-President, Mr. Giuseppe Fortunato and Mr. Mauro Paissan, Members, and Mr. Giuseppe Buttarelli, Secretary General;
Having regard to the Personal Data Protection Code (legislative decree no. 196/2003);
Having regard to the records on file and the contributions provided following the public consultation launched on 8 February 2006;
Having regard to the considerations made by the Secretary General pursuant to Section 15 of the Garante´s Rules of Procedure (no. 1/2000);
Acting on the report submitted by Mr. Giuseppe Fortunato;
1. Processing of Personal Data in Connection with Management of Condos
Several inquiries and reports have been submitted to the Garante with regard to the processing of personal data that is carried out in connection with the management of condos (condominiums). On account of their similarities, especially concerning the movement of personal data required to manage jointly owned property as related either to the individual condo members (hereinafter, the "members") or to the whole condo, they can be addressed in bulk via this provision, in which account has also been taken of the contributions provided to the Garante by private bodies and trade associations following the public consultation that was launched on 8 February 2006.
The main issues addressed in the above contributions – which largely dovetail with those contained in the reports and inquiries submitted to the Garante – are the following:
- who is the controller of the data processed in connection with management of a condo;
- which data categories may be processed, including
- the data related to the condo as a whole, being the management body;
- the personal data related to the individual members, with regard to the personal information that is collected and used for the purposes set out in civil law;
- the data related to entities other than condo members;
- whether and how data related to management of a condo may move and circulate;
- issues related to security measures;
- issues related to the processing of sensitive and/or judicial data.
Having regard to the considerations submitted in connection with the public consultation as well as to the reports lodged so far, the Garante hereby requires data controllers to take the measures referred to specifically below, in pursuance of Section 154(1), letter c), of the data protection Code, in order to bring the processing operations carried out within the framework of the management of condos into line with the data protection legislation in force – without prejudice to applicability of general law principles, in particular Section 1117 et seq. of the Civil Code.
2. Information Processed in Connection with Management of Condos: Relevance and Non-Excessiveness
In order for the processing of personal data carried out in connection with the management of condos to be in compliance with the lawfulness principle laid down in Section 11 of the data protection Code, the general rule is that the condominium as a whole may only process – usually with the help of the condo manager, acting, if appropriate, as the data processor pursuant to Section 4(1), letter g), of the data protection Code and to Section 29 thereof – such personal information as is relevant and necessary in connection with the management of jointly owned property, whereby the said information must be suitable for establishing – in accordance with the provisions set out in the Civil Code, as per Section 1117 et seq. thereof – payables and receivables of the individual members, be they owners or tenants.
2.1. The processed information may concern not only the condominium as a whole (e.g. the data related to power consumption by the condominium as a whole); in fact, it may also relate to the individual members insofar as this is necessary to manage the jointly owned property. This applies, for instance, to the members´ ID data and addresses, since mutual knowledge of this information may be indispensable to allow the meeting of the condo tenants and owners to be convened as required by Section 66 of the provisions implementing the Civil Code, or to establish whether the resolutions adopted by such a meeting are legal (e.g. in view of challenging those resolutions under Section 1137 of the Civil Code). Similarly, the ownership quotas assigned to each condo member and such personal data as are required (or relevant) to calculate and allocate charges and expenses related to the condominium may also be processed. The ownership quotas are also used to calculate the quorum in view of establishing both whether a meeting was convened duly (convening quorum) and whether the resolutions adopted by a meeting are valid (voting quorum) as per Section 1136 of the Civil Code.
The aforementioned personal information related to the individual members may be processed for the purpose of managing the condo in pursuance of Section 24(1), letters a), b) or c), of the data protection Code.
2.2. Each member may be also informed of the payables related to the other members in view of checking whether the sums outstanding in connection with the maintenance of jointly owned property and the operation of common-interest services are correct. Based on the principles regulating agency, which apply (as confirmed consistently by case law) to the relationship between condo members and condo manager, the latter shall inform the individual members of any non-compliance/default both via the annual statement of accounts (Section 1130 of the Civil Code) and, whenever necessary, following application of the supervisory and control powers granted to each condo member in respect of the management of jointly owned property, services and facilities (see decision no. 8460 by the Court of Cassation dated 26 August 1998, and decision no. 15159 dated 29 November 2001; see also the provision by the Garante dated 16 July 2003 ).
The said information may be processed by condo members, since they pursue a legitimate interest in exercising the powers referred to above and such interest is not overridden by the data subjects´ one as per Section 24(1), letter g), of the data protection Code. If the relevant preconditions are fulfilled, the data in question may also be processed in pursuance of Section 24(1), letter f), of the Code.
2.3. Conversely, the information related to individual members´ telephone numbers may only be processed with the data subjects´ consent, unless that information can already be regarded as public since it can be retrieved from publicly available lists/registers, and providing the information in question is not excessive for the purpose of managing jointly owned property. Indeed, use of this information may facilitate contacts among members, in particular if there are urgent or compelling grounds (e.g., to prevent or reduce damage to jointly owned property and/or individual parts of a building) as well as simplifying discharge of the tasks committed to the condo manager (see provision by the Garante dated 19 May 2000 as published in the Garante´s Bulletin no. 13/2000).
2.4. Sensitive and/or judicial data may also be processed in connection with the aforementioned purposes, i.e. management of a condominium, to the extent that they are indispensable to achieve the purposes in question.
This may be the case, for instance, with the processing of sensitive or judicial data related to staff employed by a condominium; subject to the obligation to inform the relevant data subjects as required by Section 13 of the data protection Code, a specific precondition for this kind of processing is set out in Section 26(4), letter d), of the Code (i.e. the processing must be required by an obligation imposed on the employer) and the general authorisations issued by the Garante with regard to processing of sensitive data in the employment sector (no. 1/2005), and to processing of judicial data (no. 7/2005), are also applicable.
There may be other situations in which sensitive data are to be processed within the framework of management of condos; reference can be made to the processing of medical data that is performed if individuals (including non-condo members) are injured, or else the processing of medical data related to one or more condo members with a view to adoption by the general meeting of a resolution concerning elimination of the so-called "architectural barriers".
3. Communication and Dissemination of Data Concerning Members
3.1. If no appropriate precondition is fulfilled (e.g. the data subject´s consent or any of the other preconditions listed in Section 24 of the data protection Code), it is unlawful to communicate personal data concerning members to third parties – which might be the case if, for instance, personal data contained in accounting records or minutes of the meetings are made available to third parties, or if unauthorised individuals are allowed to attend a meeting. It should be pointed out here that the meeting of condo members may be videotaped with the members´ informed consent.
Nevertheless, third parties such as consultants or engineers may participate in a meeting to deal with the points on the relevant agenda that require, in the members´ opinion, the attendance of such third parties (see provision by the Garante dated 19 May 2000 , quoted above). The tenant of a rented dwelling in the condo may participate in the meeting with the members´ consent, or else if the conditions set out in specific provisions are fulfilled (e.g., Section 10 of Act no. 392/1978 regulating the renting of urban dwellings).
3.2. It is unlawful – as well as being in breach of the proportionality principle – to disseminate personal data by posting default notices and/or payment reminders in public areas of a condo, since those data might be disclosed thereby to an indefinite amount of entities for as long as the notices are posted. Any information that is posted in such public areas may only relate to general notices aimed at facilitating the circulation of news of common interest (e.g. concerning meetings of the condo members, or urgent notices such as the malfunctioning of equipment); conversely, the handling of any matters that entail the processing of personal data related to identified condo members should be reserved for individual communications and/or the discussion on the occasion of the general meeting (see provision by the Garante dated 12 December 2001 as published in the Garante´s Bulletin no. 23/2001).
3.3. Suitable security measures pursuant to Section 31 et seq. of the data protection Code must be taken – if appropriate, also by the condo manager – to prevent the unlawful communication or dissemination of personal data.
4. Access Rights and Information Related to the Overall Management of a Condominium
4.1. As for exercising access rights and all the other rights referred to in Section 7 of the data protection Code – if appropriate on the basis of the specific remedy envisaged in Section 145 of the Code – with regard to the data that are directly related to the condominium as a whole (e.g., the information related to the contracts stipulated on behalf of the condominium such as those for the supply of goods and/or the delivery of services, or the data concerning consumption and dues as based on contracts stipulated by the condominium – see provision by the Garante dated 13 December 2004), it is the representative of the condominium as a whole, i.e. the condo manager, as a rule, who is empowered to exercise those rights.
4.2. Further to the considerations made under point 2, this is without prejudice to circulation among members of the information that can be related directly to management of the condo and concerns all the members considered as a whole, pursuant to Civil Law provisions (in particular, to the principles regulating appropriate discharge of the tasks entrusted to the manager in accordance with the specifications made in Section 1130 of the Civil Code, with particular regard to his/her reporting obligations). Disclosure of the said information on the basis of other legislative provisions, if the relevant prerequisites are met, is also left unprejudiced.
5. Access Rights and Personal Data Related to Members
As for the personal information that is related to an individual member, irrespective of whether it is processed for the purposes of managing jointly owned property, each member´s right to access the data concerning him/her in pursuance of Section 7 et seq. of the data protection Code is left unprejudiced. This access right may be exercised in respect of the condo, regarded as the collective body composed of all the members, also by applying to the condo manager.
No access right, nor any of the other rights set out in Section 7 above, is granted to a member with regard to personal data that can be related either to the other condo members taken individually, or to the condominium considered as a whole. Access to the latter data is allowed in compliance with the limitations and mechanisms referred to under point 2 of this document.
6. Scope of Application
Any conduct and/or communication that serves exclusively personal purposes (as per Section 5(3) of the data protection Code) and can be classed among neighbourly relations falls outside the scope of application of data protection legislation.
Data subjects are entitled to apply to judicial authorities with regard to any matters for which they may have jurisdiction, in particular with a view to claiming damages (Section 15 of the data protection Code) as well as whenever a certain type of conduct is such as to give rise to an offence (e.g. unlawful interference with a person´s private life as per Section 615-bis of the Criminal Code).
Based on the above premises, the Garante
- under Section 154(1), letter c), of the data protection Code provides that the controllers of the processing of personal data related to management of condos should take the necessary measures set out herein, in accordance with the terms referred to above, in order to bring the said processing into line with the legislation in force, by having regard, in particular,
- to identifying the data that are relevant and not excessive for the purpose of managing condos in compliance with the conditions set out in point 2, as consisting in the personal data (including sensitive and judicial data) that are necessary for managing jointly owned property and suitable for establishing payables and receivables in respect of the individual members, as regards especially
- members´ identification data and addresses;
- ownership quotas allocated to the individual tenants and personal data required for such allocation;
- personal data related to defaults by individual tenants;
- data related to individual members´ phone numbers;
- to the mechanisms for communicating the members´ personal data according to point 3 above, as regards especially
- the communication of the data contained in accounting records and/or minutes of the meetings, or whenever unauthorised individuals are allowed to attend such meetings;
- the dissemination of personal data performed by posting default notices and/or payment reminders in public areas of condos;
- under Section 24(1), letter g), of the data protection Code specifies the cases in which personal data related to management of a condo may be processed by a condo member without the data subjects´ consent, in accordance with the terms referred to in point 2.2 of the Premises and by complying with the limitations and conditions set out therein, in order to pursue the aforementioned legitimate interests;
- orders that this provision be published in the Official Journal of the Italian Republic.
Done in Rome, this 18th day of the month of May 2006
THE SECRETARY GENERAL