Q&A: Must We Comply with a Subpoena for Giving Records?

Six things to note when a legal request for information is made to the church.

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.
Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

ajax-loader-largecaret-downcloseHamburger Menuicon_amazonApple PodcastsBio Iconicon_cards_grid_caretChild Abuse Reporting Laws by State IconChurchSalary Iconicon_facebookGoogle Podcastsicon_instagramLegal Library IconLegal Library Iconicon_linkedinLock IconMegaphone IconOnline Learning IconPodcast IconRecent Legal Developments IconRecommended Reading IconRSS IconSubmiticon_select-arrowSpotify IconAlaska State MapAlabama State MapArkansas State MapArizona State MapCalifornia State MapColorado State MapConnecticut State MapWashington DC State MapDelaware State MapFederal MapFlorida State MapGeorgia State MapHawaii State MapIowa State MapIdaho State MapIllinois State MapIndiana State MapKansas State MapKentucky State MapLouisiana State MapMassachusetts State MapMaryland State MapMaine State MapMichigan State MapMinnesota State MapMissouri State MapMississippi State MapMontana State MapMulti State MapNorth Carolina State MapNorth Dakota State MapNebraska State MapNew Hampshire State MapNew Jersey State MapNew Mexico IconNevada State MapNew York State MapOhio State MapOklahoma State MapOregon State MapPennsylvania State MapRhode Island State MapSouth Carolina State MapSouth Dakota State MapTennessee State MapTexas State MapUtah State MapVirginia State MapVermont State MapWashington State MapWisconsin State MapWest Virginia State MapWyoming State IconShopping Cart IconTax Calendar Iconicon_twitteryoutubepauseplay