On June 14, 2021, the Department Labor (“DOL”) issued Information Letter 06-14-2021 to address whether ERISA requires plan fiduciaries to produce audio recordings and transcripts of telephone conversations between plan insurers and claimants.

The issue arose from a plan insurer’s denial of a claimant’s request for an audio recording.  When it denied the request, the plan insurer 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.”  DOL disagreed, stating that it interprets 29 C.F.R. § 2560.503-1(m)(8)(ii) as requiring disclosure of the recordings because the materials were “relevant” to a claimant’s claim, irrespective of whether the information was “not created, maintained, or relied upon for claim administration purposes.”

Ultimately, DOL concluded that a recording or transcript of a conversation with a claimant would not be excluded from disclosure merely because the plan or claims administrator:

  • did not include it in the administrative record;
  • does not treat it as part of the claim activity history; or
  • generated it for quality assurance purposes.

The DOL Information Letter is not binding on courts or even DOL, but plan sponsors and third-party plan service providers should be aware that recordings or transcripts of a conversation with a claimant may become subject to disclosure.