The RCCAQ regularly receives questions about the Act respecting the protection of personal information in the private sector. A number of brokers wonder how they should react if a client or an insurer wishes to obtain a copy of recorded telephone conversations in a client's file.

It should be noted that recordings of phone conversations are regarded as part of a client's file, along with hand-written notes. The following provisions of the Act contain important information that should be retained:

• Section 27: "Every person carrying on an enterprise who holds a file on another person must, at the request of the person concerned, confirm the existence of the file and communicate to the person any personal information concerning him."
• Section 32: " The person holding a file that is the subject of a request for access or rectification by the person concerned must respond to that request with diligence and not later than 30 days after the date of receipt of the request. Failure to respond within 30 days of the receipt of a request is deemed to be a refusal to grant the request."
• Section 39: "A person carrying on an enterprise may refuse to communicate personal information to the person it concerns where disclosure of the information would be likely to:

          (1) (…)

          (2) affect judicial proceedings in which either person has an interest."

As regards section 39, indications that judicial proceedings are imminent typically refer to: 

• A formal demand letter.
• The involvement of a lawyer.
• A clear statement of position, e.g. an unambiguous expression by the person requesting access concerning his or her intention to exercise certain rights, to see things through to the end or to retain a lawyer's services.

Policy holders should be aware that if their access request is denied, they can take the matter to Quebec's access-to-information commission (CAIQ). This body will then reach a decision (which may simply end up delaying the process if you are subsequently required to provide your insured with the requested information).

In other words, if a client requests a copy of a recording:

• If the phone conversation is deemed to be part of the client's file, the recording may be shared with the client. However, even if it is not deemed to be part of the file, the recording still exists; not providing it might only slow down the process. The recorded conversation would certainly be obtained in a legal action because it would constitute evidence.

If an insurer requests a copy of a recording:

• If the recording is not deemed to be part of the discussion, it is essential that the client's authorization be obtained before sharing it. If not, the insured could accuse you of having provided information without his or her consent. In any case, all brokers must act in their clients' best interests. If sharing the information with the insurer could benefit the client, it should be explained to the client why it would be to his or her advantage.
• It is important to try and understand the insurer's position. In most cases, such requests are made when processing a claim. Could the insurer be simply attempting to validate certain information? Or could the insurer by trying to find an inconsistency in the client's statements or errors or omissions by the broker?

To recap, always proceed with caution while also remaining open to the possibility of sharing recordings of phone conversations.

If you have any questions, please feel free to contact Richard Giroux.