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Can Church Records Be Subpoenaed?

A Pennsylvania court tackles the issue.

Pennsylvania
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A Pennsylvania court tackles the issue-Commonwealth v. Stewart,
690 A.2d 195 (Pa. 1997)

[ The Clergy-Penitent Privilege, Inspection of Church Records]

Key point. The Pennsylvania Supreme Court ruled that the clergy—penitent privilege did not excuse a Roman Catholic diocese from turning over internal documents pertaining to a priest in response to a subpoena. The court's ruling provides useful guidance to churches in deciding how to respond to a subpoena requesting the disclosure of church records. This feature article reviews the facts of the case, summarizes the court's ruling, and evaluates the practical significance of the case to other churches.

What if your church were served with a subpoena demanding that various financial records, membership records, and a pastors counseling notes be turned over to an attorney? How would you react? Many church leaders consider such demands to be inappropriate, and resist turning over internal church records. Is this a legally appropriate response? Does the law exempt churches from having to turn over internal church records in response to a subpoena? These are important questions for which there has been little direction from the courts. A recent decision by the Pennsylvania Supreme Court addresses these questions directly, and provides churches with important guidance.

Facts

The facts of the case can be summarized quickly. An individual (the "defendant") was charged with the murder of a Roman Catholic priest. The priest was found shot to death in the defendants home. The defendant admitted that he shot the priest, but he insisted that he did so in self—defense. In attempting to prove that he acted in self—defense, the defendant subpoenaed documents from the local Catholic Diocese. Specifically, the defendant requested the priests personnel records and the Diocese's records concerning the priest's alleged alcohol and drug abuse and sexual misconduct. The defendant insisted that these documents could help prove that he acted in self—defense because of the priests past violent conduct.

The Diocese turned over some documents but refused to turn over any records kept in its "secret archives." According to the Diocese, its secret archives contain copies of all written communications between the bishop and his priests and notes of any oral communications between the bishop and priests, that are considered to be confidential. The Diocese asked the court to excuse it from turning over the following categories of documents:

  1. All reports, letters and other documents pertaining to any allegations of misconduct or other disciplinary action regarding the priest.
  2. Copies of any reports pertaining to any sexual misconduct by the priest.
  3. Copies of all personal records, correspondence, diaries or similar documents maintained by the priest, whether such documents were maintained at his former parish or other locations.
  4. Copies of any reports pertaining to any alcohol or other substance abuse or treatment by the priest from 1986 to 1989.

The Diocese claimed that these records had to be exempted from the defendants subpoena on the basis of (1) the Pennsylvania clergy—penitent privilege, and (2) the first amendment guaranty of religious freedom.

The trial court denied the Diocese's request for a blanket exemption of these documents from the defendants subpoena. However, the court did concede that some of the documents might be protected from disclosure by the clergy—penitent privilege. Since it was not clear whether any of the documents were protected by the privilege, the trial judge ordered the documents turned over to him for a confidential review to determine if the privilege applied.

The Diocese appealed the trial court's ruling to the state supreme court.

The court's ruling

The clergy—penitent privilege is narrowly construed

The court first addressed the Dioceses claim that the documents in question were protected from disclosure by the clergy—penitent privilege. It began its opinion by quoting the Pennsylvania privilege:

No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self—ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.

The court noted that privileges are narrowly interpreted and are "not favored" since "exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." Therefore, privileges should be recognized "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth."

Prior Pennsylvania court interpretations of the privilege

The court noted that "Pennsylvania courts have interpreted our clergy—communicant privilege as applying only to confidential communications between a communicant and a member of the clergy in his or her role as confessor or spiritual counselor." It cited the following examples:

Case 1. A plaintiff filed a lawsuit against a priest and diocese on account of damages suffered as a result of the priests acts of child molestation. The plaintiff issued a subpoena to the diocese seeking disclosure of various church documents concerning alleged sexual misconduct with minor male children by priests assigned to the diocese; the complete personnel files of specified priests; and documents kept by the diocese in its secret archives. The diocese refused to produce any documents contained in its secret archives. The trial court ordered discovery of documents relating to incidents of actual or alleged sexual misconduct by priests with minor, male children and information concerning the assignment and transfer of priests. A state appeals court agreed, rejecting the dioceses claim that the documents were protected from disclosure on the basis of the clergy—penitent privilege. The court explained that the clergy—penitent privilege is limited to statements made in confidence to a member of the clergy for spiritual considerations or penitential purposes. It noted that the mere fact that a communication is made to a member of the clergy, or that documentation is transmitted to a member of the clergy, is not sufficient alone to invoke the privilege. The court concluded that the Diocese had failed to show that the communicant had disclosed the requested information in confidence to a member of the clergy in the context of a confession or spiritual matter. Hutchison v. Luddy, 606 A.2d 905 (Pa. Super.1992).

Case 2. A priest was assigned to a defendant as a court—appointed counselor following the defendant's arrest for indecent exposure. During this counseling, the defendant informed the priest that he wanted to confess to a murder. The priest informed the police of the confession, and the defendant was later convicted of first degree murder on the basis of the priests testimony. The defendant appealed his conviction, claiming that his statements to the priest were protected from disclosure on the basis of the clergy—penitent privilege. A state appeals court disagreed, finding no evidence indicating that the defendant had communicated with the priest in his capacity as a minister rather than as a court—appointed counselor. The court concluded that since the defendant's statements to the priest were not motivated by religious considerations, the trial court properly admitted the priest's testimony. Commonwealth v. Patterson, 572 A.2d 1258 (Pa. Super. 1990).

Case 3. A defendant was convicted of morals crimes involving young boys. He was released from prison on parole, upon the condition that he would reside in a specified group home and refrain from any association with young boys. The director of the home was a minister. While staying in the home, the defendant admitted to the director that he had been associating with young boys. The director informed the defendants parole officer, and a parole violation hearing was conducted at which the director testified regarding the defendants admissions. On the basis of this testimony the defendant was sent back to prison. He appealed this result, claiming that his statements to the director were protected from disclosure by the clergy—penitent privilege. A state appeals court disagreed. It concluded that the privilege does not prohibit all testimony by members of the clergy. Instead, the privilege is limited to information told in confidence to clergy in their roles as confessors or counselors. The court concluded that there was no evidence of a "confessor/penitent relationship" between the defendant and the director or that the defendant offered his admissions in confidence. The court determined that the director's role toward the defendant was that of volunteer or supervisor to help in his rehabilitation while on parole. Without a showing that the director's role was one of confessor or confidant, the court held that the challenged admissions did not fall within the protection of the clergy—penitent privilege. Fahlfeder v. Commonwealth, 470 A.2d 1130 (Pa. Common. 1984).

The interpretation of the clergy—penitent privilege in other states

The court, in reviewing the application of the clergy—penitent privilege in other states, made the following observations:

Nearly every jurisdiction in the United States has recognized a clergy—communicant privilege and, like Pennsylvania, requires the communication to have been motivated by penitential or spiritual considerations. Although the statutes establishing the privilege vary in language from state to state, the most prevalent feature prescribed by the typical statute is that the communication be made to a member of the clergy in the course of "discipline enjoined" by his or her denomination. Judicial interpretation of the meaning of "discipline enjoined" by the denomination has ranged from a narrow construction limiting the privilege to doctrinally required confessions, to a broader application to the practice of providing religious guidance, admonishment or advice. In either case, the privilege applies only to confidential communications to a member of the clergy acting in a spiritual capacity ….

Our review of the relevant case law reveals no jurisdiction extending the privilege to communications that are not penitential or spiritual in nature. Pursuant to Pennsylvania law embodied in [the three cases summarized above], application of the clergy—communicant privilege is not based solely on the clergy's status, but whether the communication was made in confidence in the context of a penitential or spiritual matter. By seeking to eliminate the requirement of a confessional or spiritual relationship between the communicant and the clergy person, the Diocese would so broadly construe the meaning of information acquired "in the course of [a clergyman's] duties" as to effectively extend the privilege to communications involving entirely secular concerns. Contrary to the Diocese's contention, limiting the privilege to communications penitential or spiritual in nature does not "insert" non—existent language into the statute. Instead, this requirement provides a rational and well—established interpretation of confidential information acquired "in the course of [a clergyman's] duties."

The clergy—penitent privilege-the critical question

The court concluded that in deciding whether or not a communication made to a minister is protected by the clergy—penitent privilege, there is a single question that must be answered:

We, therefore, hold that application of the privilege distills to a single inquiry: whether the communicant disclosed information in confidence to a member of the clergy in his or her capacity as confessor or spiritual advisor. Accordingly, confidential communications to a member of the clergy, even for counseling or solace, do not fall within the protections of the privilege unless motivated by spiritual or penitential considerations. Likewise, the privilege does not protect information regarding the manner in which a religious institution conducts its affairs; nor does the privilege protect information acquired by a religious institution through independent investigations not involving communications with a member of the clergy for penitential or spiritual purposes.

Application of the clergy—penitent privilege to internal church records

The court then addressed the question of whether internal church documents can be protected by the privilege. More specifically, could the Diocese refuse to turn over the documents in question on the ground that they are protected from disclosure by the privilege? The Diocese asserted that all of the documents in question would have been obtained in confidence by the Bishop or other clergy in the course of their duties and were maintained in the confidential diocesan archives. The Diocese filed an affidavit that states in part:

The bishop fulfills [his] duties in conjunction with his priests, over whom he exercises hierarchical authority. Thus, a bishop maintains a special relationship with his priests. He provides primary support and guidance for them concerning their spiritual lives and the faithful performance of their mission within the Church. Free, frank and confidential communication between the bishop and his priests must be protected so that the bishop can fulfill his obligations to his priests and the faithful under the prescriptions of Canon Law. A bishop must be able to candidly discuss with a priest his character, talents, spiritual life, health, and pastoral or familial problems and concerns in order to be able to assign the priest to compatible duties and to provide him with appropriate guidance in the conduct of his affairs and ministry to the faithful.

The court did not agree that this affidavit demonstrated that the documents were privileged:

The affidavit refers only to the hierarchical structure of the Roman Catholic Church and in general terms to the Bishop's duties. The affidavit fails to indicate whether the precise information subject to the discovery request was, in fact, acquired by the Bishop or Diocesan representatives secretly and in confidence while acting in their capacity as confessors or spiritual advisors. We cannot assume that all communications with or between members of the clergy occur in confidence and for confessional or spiritual purposes.

In particular, the court noted that the affidavit failed to explain why the priests personnel records, correspondence, diaries and other similar documents are protected by the privilege. In addition, "the Diocese has not demonstrated how any letters, reports or records relating to allegations of misconduct or substance abuse of [the priest], particularly documents reflecting investigations of misconduct or disciplinary actions, fall within the protection of the privilege."

Because the Diocese failed to demonstrate that the documents were protected by the clergy—penitent privilege, the trial court "properly directed the Diocese to produce the documents to the trial court" for a confidential review.

The court concluded that "to the extent the requested documents reflect relevant disciplinary action, investigations of misconduct, substance abuse treatment or non—confessional admissions of misconduct by [the priest], they are discoverable."

First amendment guaranty of religious freedom

The court rejected the Diocese's argument that disclosure of its archival documents violates its right to the free exercise of religion as protected by the federal and state constitutions and the Religious Freedom Restoration Act. In general, the government may only "substantially burden" the exercise of religion if it furthers a "compelling governmental interest" and the burden is the "least restrictive means" of advancing that interest.

The Diocese insisted that the release of archival documents, which are deemed confidential pursuant to canon law, violates its right to religious freedom. Specifically, it asserted that canon law requires the maintenance of a separate archive for the safeguarding of confidential information and prohibits anyone, including the bishop, from removing documents from that archive and disclosing their contents.

The court did not question the fact that the Diocese's refusal to produce documents in violation of canon law "is rooted in a sincerely held religious belief." However, it concluded that this burden on the Diocese's religious freedom "furthers a compelling governmental interest by the least restrictive means available." It noted that "a defendant in a criminal case has a right to discover material evidence, and the state has a compelling interest in pursuing the truth in a criminal matter." And, although a confidential review of the documents by the trial judge to determine whether any are privileged "may cause a limited exposure of privileged information to the trial court, a court order limiting discovery to relevant, non—privileged documents advances this compelling governmental interest in the least restrictive way." As a result, "the compelled production of documents for [confidential] review and the discovery of documents deemed relevant and non—privileged does not impermissibly intrude upon the Diocese's exercise of its religious beliefs and practices."

Relevance to other churches and ministers

What is the significance of this case to other ministers and churches? Obviously, the decision by the Pennsylvania Supreme Court has limited effect. It will not be binding on any court outside of the State of Pennsylvania. Nevertheless, the decision represents an extended discussion of the clergy—penitent privilege, and it is one of the few cases to address the application of the privilege to documents. As a result, it may be given special consideration by other courts. For this reason, the case merits serious study by church leaders in every state. With these factors in mind, consider the following:

1. Evaluating whether communications are privileged-the courts one—sentence test. The court concluded that a single question can determine whether or not a communication to a minister is covered by the clergy—penitent privilege: "[W]hether the communicant disclosed information in confidence to a member of the clergy in his or her capacity as confessor or spiritual advisor." As a result, "confidential communications to a member of the clergy, even for counseling or solace, do not fall within the protections of the privilege unless motivated by spiritual or penitential considerations," and "the privilege does not protect information regarding the manner in which a religious institution conducts its affairs; nor does the privilege protect information acquired by a religious institution through independent investigations not involving communications with a member of the clergy for penitential or spiritual purposes."

Example. Jack meets with his minister to discuss a church project that he is coordinating. Statements made by Jack during this meeting are not protected by the clergy—penitent privilege, since they were not made to the minister while acting in a professional capacity as a spiritual advisor.
Example. Same facts as the previous example, except that at the end of the meeting Jack informs the minister that he has "something else" to tell him. He recounts how he embezzled funds from the church while counting offerings over the past several months. There is no reason why Jacks statement cannot be privileged. It is true that the purpose of the meeting had nothing to do with seeking spiritual advice. However, this does not mean that the purpose or nature of the conversation between Jack and his pastor was static and unchangeable. When Jack decided to change the topic and address his acts of embezzlement, the nature of the meeting changed. The pastor now was being consulted in his capacity as a spiritual advisor.
Key Point. Often, it is not clear what motive a person has in contacting a minister. If there is any possibility that a minister may be subpoenaed at a later time to disclose what was said during a conversation, then the minister can help to establish whether or not the conversation was privileged by simply asking the individual (before, during, or at the end of the conversation) the following question: "Are you communicating with me in my professional capacity as a spiritual advisor?"

2. Documents and records. What about church documents and records? When can they be protected from disclosure by the clergy—penitent privilege? The Pennsylvania Supreme Court reached the following conclusions:

• "[T]he privilege does not protect information regarding the manner in which a religious institution conducts its affairs."

• The privilege does not protect "information acquired by a religious institution through independent investigations not involving communications with a member of the clergy for penitential or spiritual purposes."

• "[A]pplication of the clergy—communicant privilege is not based solely on the clergy's status, but whether the communication was made in confidence in the context of a penitential or spiritual matter. By seeking to eliminate the requirement of a confessional or spiritual relationship between the communicant and the clergy person, the Diocese would so broadly construe the meaning of information acquired `in the course of [a clergyman's] duties as to effectively extend the privilege to communications involving entirely secular concerns."

• Confidential, internal church documents are not automatically protected from disclosure on the basis of the clergy—penitent privilege. The test to apply in determining whether or not internal church documents are privileged was stated by the court as follows: Was the information requested by a subpoena acquired by a minister "in confidence while acting in [his or her] capacity as a confessor or spiritual advisor"?

• "We cannot assume that all communications with or between members of the clergy occur in confidence and for confessional or spiritual purposes."

• The court noted that the Diocese failed to demonstrate how any letters, reports or records relating to allegations of misconduct or substance abuse by the deceased priest, and "particularly documents reflecting investigations of misconduct or disciplinary actions, fall within the protection of the privilege."

• "We hold that to the extent the requested documents reflect relevant disciplinary action, investigations of misconduct, substance abuse treatment and/or non—confessional admissions of misconduct by [the priest], they are discoverable."

3. Examples. The court's discussion of the application of the clergy—penitent privilege to documents and records is illustrated by the following examples:

Example. A church member is audited by the IRS, and her charitable contributions to her church are questioned. The IRS issues a subpoena to the church, requesting disclosure of the womans contribution records for the past three years. These documents are not protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court's decision, since they fail the Courts test: Was the information requested by a subpoena acquired by a minister "in confidence while acting in [his or her] capacity as a confessor or spiritual advisor"?
Example. A church dismisses an employee. The former employee later sues the church, alleging that her dismissal was discriminatory and wrongful. She serves a subpoena on the church, demanding disclosure of her personnel file and any other internal church record pertaining to her dismissal. These documents are not protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court's decision, since they fail the Court's test: Was the information requested by a subpoena acquired by a minister "in confidence while acting in [his or her] capacity as a confessor or spiritual advisor"?
Example. A pastor, along with his church and a denominational agency, are sued by a woman who claims that the pastor took advantage of her emotional vulnerability during a counseling relationship by engaging in sexual relations. The woman serves a subpoena on the denominational agency, demanding disclosure of any former disciplinary actions or allegations of misconduct involving the pastor. It is doubtful that any of these requested documents would be protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court's decision, since they likely will fail the Court's test: Was the information requested by a subpoena acquired by a minister "in confidence while acting in [his or her] capacity as a confessor or spiritual advisor"?
Example. A minor is sexually molested by a volunteer church worker. The minors parents sue the church. They serve a subpoena on the church demanding disclosure of any screening form or application used by the church when it began using the volunteer worker, in addition to any policies the church has adopted pertaining to the screening and supervision of youth activities and workers. These documents are not protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court's decision, since they fail the Court's test: Was the information requested by a subpoena acquired by a minister "in confidence while acting in [his or her] capacity as a confessor or spiritual advisor"?
Example. A woman seeks out her pastor for marriage counseling. The woman discontinues the counseling after several sessions, and later sues her husband for a divorce. The husband serves a subpoena on the church, demanding that the pastor turn over all of the counseling notes that he compiled while counseling the woman. These documents probably are protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court's decision, since they likely satisfy the Court's test: Was the information requested by a subpoena acquired by a minister "in confidence while acting in [his or her] capacity as a confessor or spiritual advisor"?
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Posted:
  • July 1, 1997

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