by (Rev.) Michael P. Orsi, Ed.D.

http://www.justiceforpriests.org/priests-privacy-and-reputation.html

The recent spate of priest sex abuse scandals and the willingness of some bishops to turn over clergy files to law enforcement agencies should move priests to be proactive in periodically reviewing what their personnel files contain. This is an especially pressing matter if a recent settlement involving the Diocese of Manchester, New Hampshire, which allows the state to review priests’ records for five years, is copied in other jurisdictions. Sadly, carelessly kept or ambiguous notes, dubious letters, errant recollections, unsubstantiated allegations, privileged priest-bishop conversations and other confidential information have caused harm to the reputation of clergy both living and dead. And, because the dead cannot defend themselves, the tarnishing of their legacy has caused unmitigated pain to their families, friends, and past parishioners.

The Gospel’s message of respect for the dignity of persons is instantiated in the Documents of Vatican II (1965), the Code of Canon Law (1983), in The Catechism of the Catholic Church (1995) and in all modern papal encyclicals. Each of these makes strict provision for an individual’s right to privacy and the protection of one’s reputation. For the purposes of this essay, Canon 220, which states, “No one is permitted to damage unlawfully the good reputation which another person enjoys nor violate the right of another person to protect his or her own privacy” (Code of Canon Law, 1983) is particularly germane. While some dioceses have revisited their recordkeeping procedures and, in most cases, make distinctions between simple personnel matters and confidential exchanges between a bishop and priest, a pruning and, in some cases, a clarification and reclassification, may be needed for the following reasons.

First, confidentiality, either in oral or written form, recognizes privileged communications between a client and a professional, e.g., doctor or lawyer; however, the one who decides whether a particular communication is privileged is a judge (Shea, 1996, p. 326). Therefore, what a bishop may believe to be protected information may be open to discovery in a civil or criminal suit.

Secondly, intramural diocesan memos or recorded discussions, ambiguous notations or wrong information concerning a priest or deacon often survive numerous episcopal administrations and may color the attitude of future parties privy to the file (McKenna, K.E., 1992). This certainly has an effect on a cleric’s future assignments and the level of trust that a new bishop would place in him. Let me give an example. In 1986, the teachers’ union called a strike on the Camden, N.J., diocesan high schools. At the time I was a teacher. The superintendent directed the religious and clergy to keep the schools open. I dutifully crossed the picket line along with a handful of women religious and somehow managed to conduct classes. Years later, in a conversation regarding my appointment as pastor to a parish with a high school, a new bishop questioned whether I would be loyal to the diocesan school office since I joined the striking teachers on the line thirteen years earlier. When I denied the accusation and offered witnesses, the bishop said he would correct the misinformation. Not even a year later the bishop was transferred and in a similar situation his successor once again confronted me with my insubordination for joining the teachers’ protest. To this day I don’t know if this false accusation has been expunged from my file. Nevertheless, the point is made and one would have to wonder how many other priests have been deemed unworthy of certain appointments because of mistaken identity, confusion in names, unsubstantiated claims, lack of follow-up investigations or follow-through corrections or, sadly even the ill will of a chancery official. Erroneous data may continue to tarnish a priest’s reputation for years to come.

There is also the matter of information pertaining to the indiscretions of priests who at one time may have been involved in inappropriate sexual relationships. There are many cases where incidents occurred perhaps during the early years of a man’s ministry but with proper guidance, spiritual and psychological counseling the priest has performed over many years as a model citizen. Is it right, no less, is it Christian for the sins of one’s youth to shadow a priest throughout his career and, in some cases, be revealed after his death? Shouldn’t this information be struck from the record?

While recordkeeping is an important part of administration and necessary for the good of an organization, its own protection and its obligations to civil society, it must also be remembered that personnel recordkeeping is also a sacred responsibility since it affects the life of a human being. There is a developing body of law on both the federal and state level that demonstrates a concern for employee privacy and recordkeeping. Though state laws vary, there exist some federal requirements in Guide to HR Policies and Procedures Manual (Noble, RJ. 2001 ed., Sec. 6.02 and Appendix 6B) and Legal Guide to Human Resources (Kahn, S. 1994. Sec. 10.5). These, along with Gospel values, may be helpful in heightening awareness and developing more refined protocols for clergy recordkeeping.

The following suggestions are therefore recommended:

1. Bishops, personnel directors and vicars are first and foremost ministers of the Gospel. Charity should be the highest law in discerning what a priest’s confidential file should contain.
2. Any ambiguous notations that may lead to wrong interpretations by future bishops should be clarified or eliminated.
3. Any unsigned letters should never be retained.
4. Any unsubstantiated allegations should be eliminated.
5. Clergy should be made aware of any plausible allegations made against them orally or in writing in areas of moral turpitude, heterodox teaching, pastoral practice or discipline. If the bishop deems it serious enough to file these complaints the priest should have the opportunity to respond in writing and expect that his comments be kept on file also.
6. A priest should never release to a bishop his full psychological or medical reports. A summary evaluation of the priest’s ability or inability to return to some form of ministry is all that is necessary. A full report may be misconstrued and allow more information than is necessary or helpful for the good of the priest and the untrained eyes of chancery officials. It is also important to reiterate that this “client-professional” privileged information may find its way into discovery.
7. Bishops and chancery officials should refrain from making psychological judgments about clergy. Allusions to mental problems are often used to control those with whom we disagree. Terms like paranoid, rigid, compulsive, psychosexual problems, etc., are at best broad and sometimes biased terms. Designation of behavior should be specific and labeling should be left to professionals. (How many seminaries used these terms to harass conservative seminarians to reform from their orthodox beliefs?)
8. Bishops and chancery officials should consult with attorneys as to their state’s statutes for recordkeeping. The division of files between personnel – usually general information pertaining to assignments, education, and ministerial talents – and confidential matters of a personal nature between a bishop and a priest should be made.
9. Attorneys should advise bishops as to state regulations which allow the periodic shredding or pruning of files. Dioceses should take advantage of these opportunities for both civil, pastoral and housekeeping purposes.
10. Clergy should be free to inspect their files and to respond to any unfavorable items found therein. If they believe something is untrue or misconstrued, a written rebuttal should be included in the file.
11. The confidential file should be restricted to the bishop or his designate if the need should arise.
12. Diocesan procedures for recordkeeping guidelines and file retention, policies for review, and times for periodic culling and shredding should be publicized and strictly adhered to.
13. All policies and protocols should be consistent with both canon and civil law.

The events of the past years’ scandals – the numerous civil and criminal suits brought against bishops for negligence and clergy for pedophilia and statutory rape – have made renewed caution in clergy recordkeeping vitally important. Aside from the legal issues, this crisis is also an opportunity for bishops to reconsider and refine the recordkeeping on their clergy. It’s not only consistent with our belief in the dignity of the person and his right to privacy and reputation, but it is good business practice.

• Kahn, S. (1994). Legal Guide to Human Resources. Boston: Warren, Gorham & Lamont. Sec. 10.05.
• McKenna, K.E. (1992). “Confidential Clergy Matters and The Secret Archives,” in “Studia Canonica: A Canadian Canon Law Review.” St. Paul University, Ottawa, Canada; vol. 26 (1). Pp. 191-207.
• Nobile, R.J. (2001 ed.). Guide to HR Policies and Procedures Manuals. St. Paul, MN: West Group. Sec. 6.02 and Appendix 6B.
• Shea, P.T., OFM. (1996). “Clergy Records: Civil Law Considerations.” In Proceedings of the Fifty-Eighth Annual Convention of the Canon Law Society of America. DC: The Catholic University of America. Pp. 326-345.

Bio. Rev. Michael P. Orsi, Ed.D.
Chaplain and Research Fellow in Law & Religion

Father Michael P. Orsi was ordained for the Diocese of Camden in 1976 and has a broad background in teaching and educational administration. Father Orsi has authored or co-authored four books and more than 100 articles in 15 journals. Additionally, he has served as assistant chancellor, assistant vicar for pastoral services, director of Family Life Bureau, and coordinator of Pope John Paul II’s visit to New Jersey for the Diocese of Camden. He has also served as a member of The Institute for Genomic Research at the University of Pennsylvania and as a member of New Jersey’s Advisory Council on AIDS. Father Orsi holds a doctorate in education from Fordham University, two masters degrees in theology from Saint Charles Seminary, and a bachelor of arts from Cathedral College. He is presently serving as chaplain and Research Fellow in Law and Religion at Ave Maria School of Law, Ann Arbor, Mich. He is a member of the Fellowship of Catholic Schola.