Zubik defends action on priests in sex abuse
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Victim advocates have accused Bishop David Zubik of destroying the records of sex-abusing priests when he was bishop of Green Bay, Wis., but the bishop says he was following medical privacy law, didn't single out abusers and didn't destroy records with legal action pending.
"The accusations made by SNAP are totally without substance," he said in a statement.
"There was never an order issued by me -- nor anyone else -- to destroy documents or evidence contained in the files of priests accused of abuse while I served as bishop of Green Bay. To the contrary, it had been diocesan practice in Green Bay not to destroy documents in priest files -- even after a priest had died -- if there was litigation involving that priest or any pending claims. I reinforced that practice by having it formally written into the diocesan records retention policy in 2007."
Bishop Zubik led the Diocese of Green Bay from 2003 to 2007, when Pope Benedict XVI returned him to his native Pittsburgh.
On Tuesday, the Survivors Network of Those Abused by Priests asked for a court injunction preventing the Diocese of Green Bay from destroying any priest's personnel files. The group also asked the U.S. attorney for Eastern Wisconsin to investigate Bishop Zubik and other diocesan officials for "possible obstruction of justice."
The group's evidence was a deposition from the Rev. John Doerfler, chancellor of the Diocese of Green Bay. He testified that in 2007 the diocese destroyed detailed medical reports on all priests -- unless there was a claim pending -- in order to comply with federal laws on medical privacy. He said that records of all priests who had been dead for more than a year were destroyed unless there was pending legal action.
He testified that some files of accused child molesters were destroyed in the process. They included psychological reports on a notorious abuser, the former-Rev. John Feeney, who has been in prison for sexual assault since 2004. Two of his victims sued in 2008, and the case is pending.
David Clohessy, national director of SNAP, said that just because there are no accusations against a deceased priest, that doesn't mean there won't be. "Since victims often don't come forward for decades, it seems very self-serving and risky to destroy documents related to deceased priests," he said.
Peter Isley, the Midwest coordinator of SNAP, pointed out that Mr. Feeney was convicted on evidence from diocesan files that the district attorney subpeoaed. "That gives you an example of the kinds of file they might be destroying," he said.
He doesn't believe that the diocese is the type of organization included under the federal medical privacy law. But even if it is, he said, "with these psychological reports, they would be destroying records related to child sexual abuse. Either way, you don't destroy criminal evidence."
Two Pittsburgh attorneys who aren't involved with the case said application of the medical privacy law varies by circumstance. Frederick Frank, who handles records access cases for news media, said that if the diocese sponsored group insurance for priests and obtained the medical records through it, the Health Insurance Portability and Accountability Act would require the diocese to either destroy or return those records.
"If the return or destruction isn't feasible, then they are to limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible. But in this type of situation is would be highly fact-specific as to whether [the records] would no longer be needed. We would have to dissect the specific facts of each record."
Mr. Frank didn't see a legal problem with destroying files of deceased priests, if there was no legal action pending.
"That type of private personnel file is generally in the discretion of the employer," he said. "It isn't a government agency, so it doesn't get into government record retention, where there are laws that would apply."
Jason Lichtenstein, a malpractice specialist with Edgar Snyder & Associates who has represented victims of Catholic priests, said that even if no laws were broken a strong argument could be made against records destruction.
"I don't know whether there is any sanction that can be placed against them. But . . . my argument would be that you would think that an organization that cares about good record-keeping, and understands its significance based on past history with other victims, knew that by implementing this policy they were doing nothing more than protecting their tails," he said.
The Diocese of Green Bay, now led by Bishop David Ricken, has pledged to "vigorously defend itself" against both the fraud charge in the civil suit and the allegation of obstruction of justice.
First Published December 22, 2010 12:00 am