Key point 3-08.11. The clergy-penitent privilege generally does not protect church records from being disclosed in response to a subpoena. However, some exceptions have been recognized by the courts. For example, notes taken by a pastor in the course of a confidential pastoral counseling session may be protected from disclosure. In addition, in some cases subpoenas seeking church records may be opposed on the grounds that they are oppressive (they seek too much information), or relevance (they seek information that is clearly irrelevant).
Key point 8-23. A reference letter is a letter that evaluates the qualifications and suitability of a person for a particular position. Churches, like other employers, often use reference letters to screen new employees and volunteers. Churches often are asked to provide reference letters on current or former workers. The law generally provides employers with important protections when responding to a reference letter request. However, liability may still arise in some cases, such as if the employer acts with malice in drafting a reference letter.
* A Massachusetts court ruled that a church did not have to disclose reference letters and internal documents relating to the discipline of a pastor in a lawsuit brought by a woman who claimed that the pastor engaged in sexual contacts with her during a counseling relationship. A woman (Carol) sought marital counseling from her pastor (Pastor Todd) and claimed that under the guise of providing her with pastoral counseling and guidance he manipulated her into having an extramarital sexual relationship. Carol sued Pastor Todd for breaching a fiduciary duty he owed to her as a counselee and for emotional distress. She also sued a regional church, claiming that it was negligent in hiring, supervising, and retaining Pastor Todd. While the lawsuit was pending, the regional church asked the court for a “protective order” protecting the confidentiality of various documents sought by Carol’s attorney. These documents included (1) information provided to the church during its background checks of pastors; (2) documents revealing sensitive personal information about Pastor Todd; and (3) documents relating to church discipline, religious doctrine, and internal organization.
The regional church routinely conducted background investigations on its pastors, including Pastor Todd. As part of a background investigation, a pastor was asked to identify his former employers and furnish the names of references. A questionnaire was then sent to these employers and references asking questions about any past illegal or immoral conduct by that pastor. The regional church retained a screening company to collect and evaluate the information from these questionnaires. To encourage candor in answering these questionnaires, the recipients were informed in writing on the questionnaire that "except as may be required by law” the bishop “will be the only person to see the information you supply."
Carol’s attorney insisted on seeing many of these questionnaires in order to determine whether or not the church had been negligent in selecting or retaining pastors. The church argued that it should not be required to disclose these documents because of the assurance given to persons who completed them that the bishop would be the “only person” to see them. The court conceded that “there is no doubt” that the information contained in the questionnaires was “potentially relevant” to Carol’s claim that the church had been negligent. On the other hand, the church had “a legitimate interest in encouraging those answering this questionnaire to be candid, and that candor would be discouraged if those answering the questionnaires believed their answers would be made public.” The court then noted that the personnel records of government employers are exempt from disclosure under a state privacy law. It concluded, “Even for public employees, where the public interest in learning this information is greatest, the public does not have a right to know the content of background investigations.” The court ordered the questionnaires to be marked “confidential” and not disclosed to anyone other than the attorneys.
documents pertaining to Pastor Todd and parishioners
The regional church asked the court to mark as "confidential" any documents provided by Pastor Todd and various parishioners to the church that contained sensitive personal information about Pastor Todd. The court ruled that “to the extent that document discovery includes private information about parishioners that they told to a priest, public dissemination of this information may seriously breach the implicit understanding of confidentiality that attaches to private information told in confidence to a member of the clergy. Since the parishioners reasonably cannot be expected to protect their interest in privacy, it is appropriate for the [church] to look out for their interests.” The court ordered any private information in the possession of the church that pertained to parishioners to be marked “confidential” and not disclosed to anyone other than the attorneys. But, the court refused to protect information that Pastor Todd had provided to the regional church, since he never responded to Carol’s lawsuit against him.
documents relating to church doctrine, discipline, and polity
The church asked the court to mark as “confidential” all documents relating to "church discipline, religious doctrine, and internal church organization." The court noted that this request was too broad, since it would protect virtually all church documents from disclosure. The court concluded that what the church was really trying to protect were documents pertaining to its consideration of disciplinary action against Pastor Todd, and it agreed that these should be marked “confidential” and not disclosed to anyone other than the attorneys. It observed, “the church has a legitimate interest in protecting internal discussions about the possible discipline of a priest, since public dissemination of that information may affect the ability of the church candidly to discuss matters of discipline in the future.”
Application. This case is important for two reasons. First, it demonstrates that in some cases reference letters obtained by a church in connection with conducting “background checks” on employees or volunteers may be protected from disclosure in a lawsuit. Of course, in many cases a church will not want to protect such documents from disclosure since they will prove that the church was not negligent when it hired the applicant. But, in some cases church leaders may not want these materials disclosed, either because the contents of the reference letters are not helpful to the church, or the references were assured that their responses would be kept confidential. For example, in this case the primary basis for the church’s objection to disclosing the reference questionnaires was that they contained a statement assuring references that their answers would not be disclosed to anyone except the bishop. Churches that give references a clear assurance that their comments will be kept confidential and will not be disclosed to anyone except those having a legitimate need to know, may feel obligated to resist disclosing these documents in a lawsuit even if they would be helpful in the church’s defense. It is far less likely that reference letters will be protected from disclosure if they do not contain a clear assurance that they will not be disclosed. Second, the court ruled that internal documents pertaining to a discussion of the discipline of Pastor Todd were off limits. This ruling will be a helpful precedent to local churches and denominational agencies that are asked to turn over internal documents pertaining to the discipline of a member or pastor. Petrell v. Rakoczy, WL 1631575 (Mass. Super. 2001).
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