• Key point: Churches cannot protect certain records from the subpoena power by placing them in a "secret archive."
• Can a church avoid inspection of its records in a civil lawsuit by placing them in a location that it designates as a "secret archive"? No, concluded an Ohio appeals court. A Catholic priest, and his church and diocese, were sued on account of the alleged sexual molestation of a minor child by the priest. The lawsuit claimed that the church and diocese were legally responsible for the priest's behavior on the basis of negligent hiring and negligent supervision. In preparation for trial the victim's attorney sought to inspect documents in the possession of the diocese pertaining to the sexual misconduct of the priest, including any notes or summaries made by psychologists with whom the priest had consulted. The diocese acknowledged that 5 years before the priest molested the victim it learned of another incident of molestation by the same priest, and that the matter had been referred to a personnel office for investigation. As a result of this investigation, the priest was required to receive regular and ongoing counseling. The diocese refused to disclose any of these documents. It asserted that they were all contained in a secret archive file that was not subject to inspection. This position was based on Canon 489 of the law of the Roman Catholic Church which states: "There is to be a secret archive … or at least a safe or file in the ordinary archive, completely closed and locked and which cannot be removed from the place" for those documents that are to be "kept and protected most securely." Canon 490 states further that "only the bishop" of the diocese may possess the key to the secret archive and that "documents are not to be removed from the secret archive or safe." The diocese also claimed that the notes from psychologists were protected from disclosure by the "physician-patient" privilege.
A trial court ordered the diocese to produce the documents for a private review by the judge to determine whether any of them should be disclosed in court. The diocese immediately appealed this order, claiming that it violated the first amendment's guaranty of religious freedom. A state appeals court agreed with the trial court, and ordered the diocese to turn over the requested information. The court began its opinion by observing that a party to a lawsuit has the legal right to "discover" or inspect any document in the possession of another party, so long as the document is relevant to the lawsuit and not privileged. The court concluded that the requested information in this case was clearly relevant to the lawsuit, and ordered the diocese to produce them for the trial court's inspection. The court acknowledged that the United States Supreme Court has upheld "the command of the first amendment not to interfere in disputes concerning religious doctrine, discipline, faith, or internal organization." However, it found nothing in the order of the trial judge in this case for a private inspection of the records of the diocese that interfered with or entangled the state "in the rights to believe and practice the religion of one's choice, which are the freedoms protected by the first amendment." The court quoted with approval from an earlier Pennsylvania case:
Merely because Canon 489 is controlling in the internal operations of the affairs of the Church does not mean that it permits evidence pertaining to sexual molestation of children by priests to be secreted and shielded from discovery which is otherwise proper ….
Free exercise of religion, as it its encapsulated in the first amendment, embraces two concepts—freedom to believe and freedom to act. The first is absolute, but the second remains subject to regulations for the protection of society …. We are not concerned here with the former; [the Church] and other congregation members remain unimpeded in the cerebral sphere. The sole issue is whether the Church may refrain from producing documents under a narrowed court order. There is no doubt that this constitutes conduct. Decisions expressing judicial reluctance to become entangled in internal church affairs are also inapplicable. Those cases are premised on a perceived danger that in resolving intra-church disputes the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs. Such considerations are not applicable to purely secular disputes between third parties and a particular defendant, albeit a religiously affiliated organization …. Hutchison v. Luddy, 606 A.2d 905 (Pa.Super. 1992).
The court then made an interesting observation. It noted that the Ohio child abuse reporting law includes in the listing of persons who are required to report abuse "person(s) rendering spiritual treatment through prayer in accordance with the tenets of a well-recognized religion, who is acting in his official or professional capacity …." The court then observed that the child abuse reporting law contained no exception "for communications made as penitent to a clergy member as there are for communications made from patient to physician or client to attorney." The court "read from this statute a strong and clear legislative intent that the church is to yield to the state on issues such as these." In other words, the fact that clergy in some cases are mandatory reporters of child abuse under state law supports the view that church records should not be immune from disclosure in civil litigation.
The court did conclude that notes in the records of the diocese that were taken by psychologists and psychiatrists who interviewed the offending priest would be protected from disclosure by the physician-patient privilege if the priest "was in counseling with a psychiatrist or psychologist for the purposes of treatment." On the other hand, if the priest's counseling with a psychologist or psychiatrist was not for treatment, but rather for the diocese "to determine his future as a priest or how it intended to handle his problems," then the records would not be privileged. Niemann v. Cooley, 637 N.E.2d 943 (Ohio App. 1 Dist. 1994). 3G1, 8C2
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