Key point 3-08.11. The clergy-penitent privilege applies to confidential communications by counselees while seeking spiritual advice from clergy. As a result, it does not apply to church records, with the possible exception of written notes kept by clergy of communications covered by the clergy-penitent privilege.
What if your church were served with a subpoena demanding that various financial records, membership records, and a pastor’s counseling notes be turned over to an attorney? How would you react? Many church leaders consider such demands to be inappropriate, and resist turning over internal church records. Is this a legally appropriate response? Does the law exempt churches from having to turn over internal church records in response to a subpoena? These are important questions for which there has been little direction from the courts.
One of the leading cases is a decision by the Pennsylvania Supreme Court.156 Commonwealth v. Stewart, 690 A.2d 195 (Pa. 1997). Accord Niemann v. Cooley, 637 N.E.2d 943 (Ohio App. 1994).An individual (the “defendant”) was charged with the murder of a Roman Catholic priest. The priest was found shot to death in the defendant’s home. The defendant admitted that he shot the priest, but he insisted that he did so in self-defense. In attempting to prove that he acted in self-defense, the defendant subpoenaed documents from the local Catholic Diocese. Specifically, the defendant requested the priest’s personnel records and the Diocese’s records concerning the priest’s alleged alcohol and drug abuse and sexual misconduct. The defendant insisted that these documents could help prove that he acted in self defense because of the priest’s past violent conduct.
The Diocese turned over some documents but refused to turn over any records kept in its “secret archives.” According to the Diocese, its secret archives contain copies of all written communications between the bishop and his priests and notes of any oral communications between the bishop and priests that are considered to be confidential. The Diocese asked the court to excuse it from turning over the following categories of documents: (1) All reports, letters, and other documents pertaining to any allegations of misconduct or other disciplinary action regarding the priest. (2) Copies of any reports pertaining to any sexual misconduct by the priest. (3) Copies of all personal records, correspondence, diaries, or similar documents maintained by the priest, whether such documents were maintained at his former parish or other locations. (4) Copies of any reports pertaining to any alcohol or other substance abuse or treatment by the priest from 1986 to 1989. The Diocese claimed that these records had to be exempted from the defendant’s subpoena on the basis of the Pennsylvania clergy penitent privilege and the First Amendment guaranty of religious freedom.
The trial court denied the Diocese’s request for a blanket exemption of these documents from the defendant’s subpoena. However, the court did concede that some of the documents might be protected from disclosure by the clergy-penitent privilege. Since it was not clear whether any of the documents were protected by the privilege, the trial judge ordered the documents turned over to him for a confidential review to determine if the privilege applied. The Diocese appealed the trial court’s ruling to the state supreme court.
The court first addressed the Diocese’s claim that the documents in question were protected from disclosure by the clergy-penitent privilege. It noted that privileges are narrowly interpreted and are “not favored” since “exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Therefore, privileges should be recognized “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.”
It then addressed the question of whether internal church documents can be protected by the privilege. More specifically, could the Diocese refuse to turn over the documents in question on the ground that they are protected from disclosure by the privilege? The Diocese asserted that all of the documents in question would have been obtained in confidence by the Bishop or other clergy in the course of their duties and were maintained in the confidential diocesan archives. The Diocese filed an affidavit that stated in part:
The bishop fulfills [his] duties in conjunction with his priests, over whom he exercises hierarchical authority. Thus, a bishop maintains a special relationship with his priests. He provides primary support and guidance for them concerning their spiritual lives and the faithful performance of their mission within the Church. Free, frank and confidential communication between the bishop and his priests must be protected so that the bishop can fulfill his obligations to his priests and the faithful under the prescriptions of Canon Law. A bishop must be able to candidly discuss with a priest his character, talents, spiritual life, health, and pastoral or familial problems and concerns in order to be able to assign the priest to compatible duties and to provide him with appropriate guidance in the conduct of his affairs and ministry to the faithful.
The court did not agree that this affidavit demonstrated that the documents were privileged:
The affidavit refers only to the hierarchical structure of the Roman Catholic Church and in general terms to the Bishop’s duties. The affidavit fails to indicate whether the precise information subject to the discovery request was, in fact, acquired by the Bishop or Diocesan representatives secretly and in confidence while acting in their capacity as confessors or spiritual advisors. We cannot assume that all communications with or between members of the clergy occur in confidence and for confessional or spiritual purposes.
In particular, the court noted that the affidavit failed to explain why the priest’s personnel records, correspondence, diaries, and other similar documents were protected by the privilege. In addition, “the Diocese has not demonstrated how any letters, reports or records relating to allegations of misconduct or substance abuse of [the priest], particularly documents reflecting investigations of misconduct or disciplinary actions, fall within the protection of the privilege.”
Because the Diocese failed to demonstrate that the documents were protected by the clergy penitent privilege, the trial court “properly directed the Diocese to produce the documents to the trial court” for a confidential review.
The court concluded that “to the extent the requested documents reflect relevant disciplinary action, investigations of misconduct, substance abuse treatment or non confessional admissions of misconduct by [the priest], they are discoverable.”
The court rejected the Diocese’s argument that disclosure of its archival documents violated its right to the free exercise of religion as protected by the federal and state constitutions. The court did not question the fact that the Diocese’s refusal to produce documents in violation of canon law “is rooted in a sincerely held religious belief.” However, it concluded that this burden on the Diocese’s religious freedom “furthers a compelling governmental interest by the least restrictive means available.” It noted that “a defendant in a criminal case has a right to discover material evidence, and the state has a compelling interest in pursuing the truth in a criminal matter.” And, although a confidential review of the documents by the trial judge to determine whether any are privileged “may cause a limited exposure of privileged information to the trial court, a court order limiting discovery to relevant, non privileged documents advances this compelling governmental interest in the least restrictive way.” As a result, “the compelled production of documents for [confidential] review and the discovery of documents deemed relevant and non privileged does not impermissibly intrude upon the Diocese’s exercise of its religious beliefs and practices.”
Example. An Illinois court ruled that a Catholic diocese had to turn over records it generated during an internal investigation into sexual misconduct charges made against a priest. The State of Illinois brought sexual assault charges against a priest (the “defendant”) alleging that he molested a young girl while acting in a position of trust as her priest in the Roman Catholic Church (Church). The state served the diocese with a subpoena for “any and all records regarding defendant,” including “personnel files, transfer record, intervention team records, and misconduct officer records.” The court ruled that this subpoena was valid: “The subpoena in this case does not threaten … state involvement with religion. … There is no potential for state subversion of religious objectives. The state seeks diocesan records to determine whether defendant violated secular law. The state evinces no desire to co-opt any judgment of the diocese regarding defendant’s compliance with canon law, or even to examine canon law. There simply is no substance to the diocese’s assertion that the subpoena is an insidious attempt to force upon the diocese the government’s view about how it should discipline priests accused of misconduct.”157 People v. Campbello, 810 N.E.2d 307 (Ill. App. 2004)
Example. 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. The court concluded that 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. It also 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. The court also ruled that the church did not have to turn over any documents relating to church discipline.158 Petrell v. Rakoczy, 2001 WL 1631575 (Mass. Super. 2001).