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Participant Access to Reports


khn
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A participant is angry about a fund replacement decision made by his Plan's Investment Committee. He's has formally requested HR provide him with a copy of the report provided by the Plan's investment consultant advising them to make the replacement. The consultant's report was strictly for review by the Investment Committee and not plan participants. When told this, the participant got very angry and now thinks his employer is trying to hide something from him. How best to deal with this, would you provide him a copy of the report?

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Honestly this is an employee relations issue and not a plan issue. There is nothing in ERISA that says a report to the plan committee has to be disclosed to participants. The plan administrator would be completely within their rights to tell this guy to take a hike.

The employer, of course, is going to want to weigh their options. Is there anything in the report that is sensitive and could harm the sponsor if it became public knowledge? Is this guy likely to bring an action against the sponsor if they don't give him what he wants, or is he just full of hot air?

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The participant is actually an attorney so they are a bit worried about him taking action. However, there isn't anything harmful or sensitive in the report. It just was not drafted for participants, and they aren't keen on the idea of something written solely for the Committee to be distributed to plan participants. 

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I agree that a report like this probably is not subject to disclosure, but you may want to review any available case law in the relevant jurisdiction. There has been a fair amount of litigation on the extent of required disclosures of "other instruments" under Section 104(b)(4) of ERISA, with some differing opinions on its scope in different circuits.  Just saying I wouldn't automatically assume that anything of this sort is exempt from disclosure upon request.

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Beyond EBECatty’s apt caution:

Even if no law requires furnishing the requested information, the plan’s administrator might want its lawyer’s advice about whether there are strategic advantages to furnishing the information.

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