By Bill Pomerleau
The Observer
January 12, 2007
http://www.iobserve.org/rn0112a.html
Springfield – Despite its being hailed by their attorney as a "significant repudiation" of the position of the Diocese of Springfield, a ruling last week by a Superior Court judge may end the confidentiality of counseling and other records of many victims of sexual abuse by the clergy, said a lawyer for the diocese.
"The issue here is the commitment the diocese made, most often in writing, to keep records given to us confidential, as much as legally possible," said Attorney John J. Egan, reacting to a multi-part ruling by Superior Court Associate Justice John A. Agostini.
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Judge Agostini, who is handling all pending legal matters connected to clergy sexual abuse in western Massachusetts, ruled Jan. 3 that at least some of the 7,686 pages of records withheld by the diocese should be made available to a group of insurance companies being sued by the church.
The diocese is seeking insurance compensation for $7.7 million it paid to abuse claimants in 2004. The insurers have balked at reimbursing the diocese, saying they should not have to pay if it is determined that the diocese mishandled past clergy abuse by recklessly keeping priests it knew to be abusive in active ministry.
The insurers also want to assess if the diocese has already, or might be inclined in the future, to pay claims of dubious credibility.
To support its position, they want access to a wide variety of diocesan documents concerning clergy and other church employees accused of misconduct, including those not involved in the 2004 settlement.
Following the sudden resignation of former Springfield Bishop Thomas L. Dupré in February 2004 amid charges that he abused minors in the 1970s, Hampden District Attorney William Bennett convened a grand jury to investigate Bishop Dupré's alleged misconduct, and the church's overall handing of misconduct claims.
During Bennett's nine-month investigation, the diocese handed over 75,000 pages of records, most related to accusations against priests, kept in its chancery offices.
"They basically demanded every piece of paper we had," Egan commented.
At an October 2004 press conference announcing that Bishop Dupré would not be prosecuted for his own conduct due to the expiration of the criminal statute of limitations, Bennett said he found no evidence that that "(Bishop) Dupré personally destroyed or illegally concealed evidence of sexual misconduct by other church officials."
While Bennett only indirectly addressed questions about the church's handling of abuse matters, his statement essentially confirmed Bishop Dupré's sworn testimony in a
2003 deposition about the diocese's recordkeeping practices.
As the grand jury completed its work before disbanding several months ago, a relatively small number of documents were excluded from its examination because they were subject to various types of legal privilege, said Egan.
Some of those documents not given to the grand jury, and some which were given, are the subjects of Judge Agostini's recent ruling, the lawyer explained.
Egan said a "substantial part" of the documents the insurers want to see are therapy records of priests or other diocesan employees, and of persons who provided records to the diocese so they could substantiate the harm they had suffered by the employees.
"Since the (diocesan) misconduct commission was established in 1992, our protocol has been to promise confidentiality as far as legally possible.
"For example, the board has always had mandated reporters among it members, so we notified those who appeared before it that some cases of (current) abuse would have to be reported to the authorities. We have an obligation to those who helped us investigate abuse to not turn over therapy records unless we are compelled to," said Egan.
Egan acknowledged that the diocese might lose its ability to keep therapy records private, given a series of recent rulings by the courts in Massachusetts.
Like other states, Massachusetts protects the confidentiality of treatment between a patient and a therapeutic professional. But unlike in other states, the courts here have said that once a patient turns over a medical record to a third party, it can no longer be subject to privilege in legal proceedings.
Egan added that if the therapy records part of Judge Agostini's ruling stands, he could later respond to a request from a patient or other party to limit who will have access to the records.
But John Stobierski, a Greenfield attorney representing two groups of abuse claimants, told some media outlets that his clients want all the details of their dealings with the church to become public.
"They believe that the light of day will let the truth come out and, for many of them, getting to the bottom of this, knowing the truth, knowing what happened, knowing what the diocese knew and when they knew it, is really important for them to move on to their healing," Stobierski told CBS 3 Springfield television Jan. 11.
Egan noted that Judge Agostini's ruling might also make it easier for the diocese's insurers to question the validity of the abuse claims made by some helped by the diocese.
He noted that among the 46 parties to the 2004 settlement was a woman who made an accusation against then-Father John Bonzagni.
"After filing her lawsuit, she never showed up for her own hearing, yet she was paid $80,000" Egan said.
After taking a preliminary statement from the claimant, the diocesan misconduct board conducted an investigation. It never recommended that Father Bonzagni should be removed from ministry, and later publicly confirmed it found the woman's claims unsubstantiated. .
Negotiated by Commonwealth Mediation Services, the settlement with Stobierski's clients allocated pre-determined amounts of damages to victims whom the diocese had
accepted as legitimated claimants. It did not directly examine the credibility of any case.
The diocese has suggested that information gathered during the settlement process could serve as a basis for settling its current insurance dispute. But the insurers have moved to require new depositions for the court from past claimants.
Judge Agostini has not yet ruled on that pre-trial motion.
He did rule that documents summarized in a "privilege log" provided to the court that are communications between the church and its lawyers, and notes of lawyers' activities, should be kept confidential under the attorney client privilege and "work product" privileges.
He was less sympathetic to the diocesan claim that other documents are covered by the privilege given by state law to communications between a priest and penitent.
After ruling that a letter between the late Springfield Bishop John A. Marshall to then-Father Richard Lavigne about an unpaid bill is not privileged, Judge Agostini ruled, "the remaining descriptions of the withheld documents are insufficient to permit the Court to determine whether they are privileged."
He ordered the diocese to produce the documents for his in camera review to determine if they are legally privileged.
Judge Agostini's ruling gave the diocese seven days to produce the relevant documents. But the judges sometimes extend their deadlines if they know that a party to their ruling is considering an appeal, Egan noted.
The attorney said that the diocese is still considering its legal options.
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