“I’ve been working with a 401(k) plan committee on governance issues. A participant has requested copies of plan committee meeting minutes and notes for the last four quarters. Does the committee have to comply with this request?”
ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare. We bring Case of the Week to you to highlight the most relevant topics affecting your business.
A recent call with an advisor in North Carolina is representative of a common question related to plan documents.
Highlights of the Discussion
The answer is—maybe. One thing is sure—whatever the plan officials decide, there should be documentation in the plan files as to the reason for their decision. The documentation will be important should litigation arise.
Section 104(b) of the Employee Retirement Income Security Act of 1974 (ERISA) requires plan officials to provide the following documents within 30 days of a plan participant’s request:
- Summary plan description,
- The latest annual report,
- Any terminal report,
- The bargaining agreement,
- The trust agreement,
- Contract, and
- “Other instruments” under which the plan is established or operated.
The plan administrator may charge a reasonable fee to cover the cost of furnishing such copies.
Committee meeting minutes and notes are not explicitly listed in these ERISA disclosure requirements. The Department of Labor (DOL) has issued some guidance on the matter, but nothing definitive. In Advisory Opinion 96-14A, issued on July 31, 1996, the DOL stated, “ … any document or instrument that specifies procedures, formulas, methodologies, or schedules to be applied in determining or calculating a participant’s or beneficiary’s benefit entitlement under an employee benefit plan would constitute an instrument under which the plan is established or operated.” The DOL reiterated this stance in Advisory Opinion 1997-11A.
Thus, it could be argued if benefit-related decisions were made or even discussed at committee meetings then the minutes, or at least applicable portions of the minutes, would have to be provided. This issue is clearly open to interpretation and argument, and there have been legal cases where courts have differed on their rulings as to the treatment of committee meeting minutes. For example, in Faircloth v. Lundy Packing Co., 91 F.3d 648, 654–55 (4th Cir. 1996), cert. denied, 519 U.S. 1077 (1997); and Brown v. American Life Holdings, Inc., 190 F.3d 856, 861 (8th Cir. 1999) the courts found that plan officials were not required to disclose committee minutes. Whereas, in Bartling v. Fruehauf Corp., 29 F.3d 1062 (6th Cir. 1994) and Hughes Salaried Retirees Action Committee v. Admin. of the Hughes Non-Bargaining Retirement Plan, 72 F.3d 686, 689 (9th Cir. 1995) (en banc) the courts concluded that “other instruments” should be construed more broadly to include such items as committee minutes.
Consequently, a committee facing a participant’s request for meeting minutes should, as expeditiously as possible (remembering the 30-day requirement to provide and penalty of $110 per day for late responses), seek legal counsel for direction and guidance.
ERISA requires plan officials provide certain plan documents upon participant request. There is some uncertainty as to the treatment of committee meeting minutes in this context. Seeking legal counsel would be a prudent course of action, and documenting the decision would be a fiduciary best practice.