The Employee Benefits Security Administration issued Information Letter 06-14-2021 stating that 29 C.F.R. § 2560.503-1 requires plan fiduciaries to disclose, on request, recordings and/or transcripts of phone calls between the claimant and the fiduciary, even if the recording was made only for quality assurance purposes.

EBSA summarized the request:

You are seeking guidance because you represent a claimant whose request for such a recording was denied. You indicate that the stated reasons for denial of the request for the audio recording are that the actual recording is distinct from the notes made available to you, which contemporaneously documented the content of the recorded conversation, and which became part of the “claim activity history through which [the insurer] develops, tracks and administers the claim.” By contrast, the denial stated that the “recordings are for ‘quality assurance purposes,’” and “are not created, maintained, or relied upon for claim administration purposes, and therefore are not part of the administrative record.”

The Department of Labor explains Information Letters as follows:

An information letter is a written statement issued either by the Pension and Welfare Benefit Programs (Office of Employee Benefits Security), U.S. Department of Labor, Washington, D.C. or a Regional Office or an Area Office of the Labor-Management Services Administration, U.S. Department of Labor, that does no more than call attention to a well-established interpretation or principle of the Act, without applying it to a specific factual situation. An information letter may be issued to any individual or organization when the nature of the request from the individual or the organization suggests that it is seeking general information, or where  … it is believed that such general information will assist the individual or organization.

ERISA Procedure 76-1.

The Information Letter stated that Section 2560.503-1(h)(2)(iii) requires disclosure, on request, of “all documents, records, and other information relevant to the claimant’s claim for benefits.” And a document, record or information is “relevant” if it was “generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination; [or] demonstrates compliance with the administrative processes and safeguards required pursuant to paragraph (b)(5)[.]” Section 2560.503-1(m)(8).

Accordingly, EBSA explained that, because a recording of a call with a claimant was “generated in the course of making the benefit determination,” it is “relevant” and must be disclosed on request, even if it was not “relied upon in making the benefit determination[.]” EBSA also explained that a recording made for quality assurance purposes would also likely make it relevant as demonstrating compliance with administrative processes or safeguards.

The Information Letter concluded:

In summary, a recording or transcript of a conversation with a claimant would not be excluded from the requirements under 29 CFR 2560.503-1 to disclose relevant “documents, records, and other information” merely because the plan or claims administrator does not include the recording or transcript in its administrative record; does not treat the recording or transcript as part of the claim activity history through which the insurer develops, tracks and administers the claim; or because the recording or transcript was generated for quality assurance purposes.

Benefits claim fiduciaries may wish to consider their internal systems for recording calls, and for tracking and locating any recordings that are made. In particular, they may wish to consider developing a procedure or guideline concerning when calls can or should be recorded, and what is done with a recording after it is made. In addition, fiduciaries may wish to consider whether such recordings, if made, should automatically be included in the claim file.