Churches Generally Not Exempt from Subpoenas of Personnel Records

Exceptions might be made for clergy-penitent privilege.

Church Law and Tax 1995-07-01 Recent Developments

Confidential and Privileged Communications

Key point: Confidential church personnel records ordinarily must be disclosed in response to a subpoena. However, there are limited exceptions to this rule.

A Pennsylvania court ruled that a Catholic diocese had to respond to a subpoena seeking the personnel records of a priest. The facts of this case are somewhat unusual, but the principle announced by the court is important. A Catholic priest was murdered, and his alleged murderer was arrested and prosecuted. Prior to the suspect’s trial, he directed a subpoena to the diocese requesting several items of information relating to the deceased priest including any allegations of sexual or other misconduct or alcohol or drug abuse. The suspect sought this information to support his claim that he had killed the priest in self-defense. Under Pennsylvania law, a murder suspect claiming that he killed another person in self-defense may introduce evidence of the violent and dangerous character of the victim in an effort to prove that he reasonably believed that his life was in danger. The diocese refused to turn over any records, and based its decision on the following considerations: (1) church canons require the diocese to maintain a “secret archive”; (2) documents in the diocese archives are protected from disclosure by the clergy-penitent privilege; and (3) the church’s canons and practices are protected by the first amendment guaranty of religious freedom. A trial judge disagreed, and ordered the diocese to turn over all records so he could determine which if any records were protected by the clergy-penitent privilege. The judge rejected the claim of the diocese that none of its records had to be disclosed. The diocese appealed, and a state appeals court agreed with the trial judge and ordered the diocese to turn over its records to the judge. The Pennsylvania clergy-penitent privilege provides:

No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization … 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 concluded that this provision did not protect all of the records of a diocese or any other religious organization from disclosure in court. Rather, this provision applies only “to information told in confidence to clergymen in their role as confessor or counselor.” The court emphasized that “the mere fact that a communication was made to a clergyman or documentation was transmitted to a clergyman is insufficient in itself to invoke the privilege.” The court acknowledged that “some or all of the documents” sought by the murder suspect might be privileged, and in that event the trial judge would refuse to disclose them. However, “it is clear that the [privilege] does not provide blanket protection for all documents in the hands of the diocese simply because of the diocese’s status as a religious organization.”

The court rejected the argument of the diocese that forcing it to reveal its internal files would violate the first amendment guaranty of religious freedom: “[W]here the only action required of a religious institution is the disclosure of relevant, non-privileged documents to an adversary in civil litigation, such action, without more, poses no threat of government interference with the free exercise of religion.” This is especially true in a criminal case, where nondisclosure of a church’s non-privileged records might jeopardize a suspect’s right to a fair trial.

This case is important for two reasons. First, it demonstrates the general rule that church records are not automatically immune or exempt from compelled disclosure in a court of law. Second, it demonstrates that documents as well as conversations may meet the requirements of the clergy-penitent privilege, and such documents are not admissible in court. However, a court may have the authority to determine what records in the possession of a religious organization are protected under the clergy-penitent privilege. Commonwealth v. Stewart, 647 A.2d 597 (Pa. Super. 1994). 3G, 8C

See Also: The Clergy-Penitent Privilege | Church Records

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