Metropolitan News-Enterprise


Thursday, September 22, 2011


Page 1


Ninth Circuit Orders Redaction of Priest-Abuse Claims In Bankruptcy Discovery Documents


By SHERRI M. OKAMOTO, Staff Writer


A retired Catholic priest who had been accused of sexual abuse was entitled to have his identifying information redacted from documents produced in discovery during the Portland Archdiocese’s bankruptcy proceedings before these materials could be released to the public, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel, in an opinion by Judge Sandra S. Ikuta, reasoned that the public safety concern in knowing who might sexually abuse children was not applicable to the 88-year old priest, identified in the decision as Father D, since he had retired in 1989 and was no longer occupying a position of power and trust.

Ikuta, however, said the desire of  a second priest—a 72-year old identified as Father M—to preserve his privacy did not outweigh the public interest in disclosure since he continues serve his clerical duties, which may bring him into contact with children.

The complaints against the priests were contained in the Portland archdiocese’s personnel files for them, which in 2004, were the subject of multiple lawsuits seeking millions of dollars in compensatory and punitive damages for sexual abuse of children by specific clergy members.

While these lawsuits were pending, the church authority filed for Chapter 11 bankruptcy protection, and the bankruptcy court became the forum for many of the proceedings relating to the tort claims.

Ikuta noted that Fathers M and D were not among the priests being sued by the tort claimants, nor where they given notice that their personnel records, along with others, had been filed under seal in the bankruptcy case.

In September 2007, the bankruptcy court closed the archdiocese’s Chapter 11 case, retaining jurisdiction over any pending adversary proceedings. This conclusion of the archdiocese’s bankruptcy proceedings did not resolve whether there would be public disclosure of documents designated as confidential or filed under seal.

About two dozen of the 140-plus tort claimants subsequently notified the Archdiocese that they intended to release all personnel records from the clergy files that were produced in discovery, and the archdiocese sought an order preventing such disclosure. A number of priests whose files stood to be released, including Fathers M and D, filed similar motions.

After a hearing in which counsel for Fathers M and D participated, the bankruptcy court ruled in favor of disclosure.

The bankruptcy court judge found the archdiocese had not demonstrated “good cause” as required by Federal Rule of Civil Procedure 26(c) sufficient to overcome the presumption of public access to the names of and allegations against the accused clergy, although there was good cause to redact the addresses, social security numbers, financial information, and family information of those priests.

 Chief U.S. District Judge Ann L. Aiken of the District of Oregon affirmed the bankruptcy judge’s ruling.

But Ikuta explained that “in determining whether to protect discovery materials from disclosure under Rule 26(c), a court must not only consider whether the party seeking protection has shown particularized harm, and whether the balance of public and private interests weighs in favor, but also keep in mind the possibility of redacting sensitive material.”

She added that material produced in pretrial discovery is “presumptively public,” and that the “good cause” showing requirement is not limited only parties in the litigation, but also applies said third parties to a lawsuit like Father M and D seeking protection under Rule 26(c).

The jurist acknowledged that the priests established that they would experience harm “should their names be associated with the Archdiocese bankruptcy and settlement, including public humiliation, loss of career (in the case of Father M), and possible eviction from a retirement home (in the case of Father D),” and then proceeded to weigh their interests against those of the public.

“We first note that the mere allegation of misconduct in the discovery documents filed in this case, without more, does not create a public interest sufficiently large to outweigh the priests’ private interests in confidentiality,” she said, emphasizing that “[t]here has been no judicial determination regarding the truth of the allegations against Fathers M and D, and neither priest has been given an opportunity to put on evidence, provide argument, or otherwise litigate the allegations either in the bankruptcy court or elsewhere.”

Ikuta reasoned that the public has “a weighty interest in public safety and in knowing who might sexually abuse children,” but this concern “is not applicable to Father D,” since he “has been retired for many years, and nothing in the record indicates that he continues working in the community.”

She further posited that the alleged victims “can know that they are not alone, and church officials’ complicity in the abuse can be revealed,” without disclosing the identity of Father D, so his name should be redacted from the discovery materials.

Such was not the case for Father M, Ikuta said. Since he was still an active priest, Ikuta concluded the public’s interest in safeguarding the physical and psychological well-being of children he may encounter outweighed his privacy interests.

Chief Judge Alex Kozinski and Judge Carlos T. Bea joined Ikuta in her decision.

The case is In the Matter of Roman Catholic Archbishop of Portland in Oregon, 10-35206.


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