Our church received a subpoena requesting the donation records of someone in our congregation. The person is in a court case involving child support, and his ex-wife’s lawyer wants to see how much money he has been giving to the church to prove he’s making more than he says. Do we have to comply?
Let make several observations in response to your question.
Church records are not inherently “privileged.” The term “privilege” or “privileged” refers to evidence that is not admissible in court because of some fundamental public policy. Records that are not privileged generally are subject to the subpoena power like any other organization. No state or federal law confers special “privileged” status on all church records.
There may be a very limited exception for notes created by a pastor that summarize the content of counseling sessions with parishioners if the sessions qualify for the clergy-penitent privilege under state law. In general, this means that the counseling consisted of confidential, spiritual counsel with the minister. But aside from this, neither the courts nor state or federal legislatures have recognized any generalized privilege for church records.
Note that a subpoena issued by a state court ordinarily is unenforceable outside the state, or in some cases the county, where it was issued. It is possible in some cases, however, for a subpoena issued by a court in one state to be “processed” in another state. This requires additional work, and so many attorneys seek to avoid this step by attempting to have a church voluntarily respond to a subpoena that technically is not enforceable because it was issued by a court in another state.
Nearly 30 states have enacted the Uniform Interstate Depositions and Discovery Act, which allows subpoenas issued in one state to be enforceable in another, under some conditions. So, church leaders should not assume that a subpoena issued by a court in another state is not enforceable.
The federal Church Audit Procedures Act allows church records to be subpoenaed under some circumstances, which demonstrates the absence of any general church records “privilege.”
If any doubts exist regarding a church’s legal obligation to respond to a subpoena, be sure to consult with legal counsel.
