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Personnel Files, Confidentiality and the Right to Privacy

Published online by Cambridge University Press:  30 May 2023

Clyde Muropa*
Affiliation:
JCD candidate, St. Paul University, Ottawa, Canada

Abstract

This study, which focuses on the Roman Catholic Church, explores the concepts of confidentiality and the right to privacy in contemporary moral and legal thought. The management of church personnel files presents the challenge of observing and maintaining confidentiality and privacy. In most cases, the information contained in personnel files of the clergy, members of religious institutes, and others holding ecclesiastical offices is confidential, which should safeguard the reputation of all persons involved. From a juridical viewpoint, the Church's innate duty to respect the dignity of the person, as well as the natural right of privacy and good name, forms the foundation of this study. Certain practices in the Church entail the collection, use, or retention of confidential information about individuals for internal purposes, the administration of justice, and the management of archives and documents in the diocesan curia. In the final analysis, the Church has the responsibility to both protect the privacy of all the faithful and to transmit the Gospel message transparently.

Type
Articles
Copyright
Copyright © Ecclesiastical Law Society 2023

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Footnotes

*

This paper was presented at the 56th Annual Convention of the Canadian Canon Law Society, Ottawa, on 18 October 2022.

References

1 Canon 220: ‘No one is permitted to harm illegitimately the good reputation which a person possesses or to injure the right to any person to protect his or her own privacy’ (cf. Code of Canons of the Eastern Churches (CCEO) Canon 23.) The right to privacy in civil law and American jurisprudence is a fairly recent invention. The term ‘civil law’ refers to all secular law systems, including common law, whereas ‘common law’ is reserved to the laws of jurisprudence following the Anglo-American legal system.

2 See J P Soler and R De Oca Montes, Transparency and Secrecy within the Catholic Church (Chicago, 2022), 2.

3 See Warren, S D and Brandeis, L D, ‘The Right to Privacy’ (1890) 4(5) The Harvard Law Review 197CrossRefGoogle Scholar. By 1890, a vast literature of law had developed to protect privacy as confidentiality. Therefore, it is incorrect to portray Warren and Brandeis as the originators of the right to privacy. Instead, they shifted from the concept of confidentiality to what they termed ‘inviolate personality’.

4 Miller, A, ‘The New Technology's Threat to Personal Privacy’, in Assault on Privacy (Ann Arbor, 1971), 25Google Scholar.

5 McBrien, R, ‘The Believer's Right to Privacy’, in William C Bier, Privacy: A Vanishing Value (New York, 1980), 124Google Scholar. Black's Law Dictionary defines privacy as ‘the legally protected right of an individual to be free from unwarranted publicity and to be protected from any wrongful intrusion into his private life which would outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities’; Black, H C, Black's Law Dictionary (5th edn) (St Paul, MN, 1979), 1075Google Scholar.

6 See Richards, N M and Solove, D J, ‘Privacy's Other Path: Recovering the Law of Confidentiality’ (2007) 96 George Washington University Law Review 125Google Scholar.

7 Confidential relations are defined as ‘relations formed by convention or by acquiescence, in which one party trusts his pecuniary or other interests to the fidelity and integrity of another, by whom, either alone or in conjunction with himself, he expects them to be guarded and protected’. See Cooley, T M, A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract (Chicago, 1879), 508Google Scholar. See also Richards and Solove (note 6), 135.

8 ‘Records management is the systematic control of all records from creation or receipt through processing, distribution, maintenance, and retrieval to their ultimate disposition’; Teanor, J J, ‘Records Management’ (2002) 42(1) The Catholic Lawyer 51Google Scholar.

9 Arrieta, J I, ‘A Presentation of the New Penal System of Canon Law’ (2021) 77 The Jurist: Studies in Church Law and Ministry 260CrossRefGoogle Scholar.

10 See Catechism of the Catholic Church (CCC), no. 2477. The CCC defines calumny as ‘[…] a false statement which harms the reputation of others and gives occasion for false judgments concerning them’. Detraction is that action through which one, without an objectively valid reason, discloses another's faults and failings to another or to others who did not have legitimate reason to know it. See Canon 1391.

11 ‘Sacramental and Genealogy Requests’, available at <https://www.catholichawaii.org/diocesan-offices/office-of-the-chancellor/sacramental-and-genealogy-requests>, accessed 7 February 2023.

12 Benedict XIII, Constitution Maxima vigilantia, 14 June 1727, in Bullarium Romanun 12, Rome, 1736, 221–225.

13 O'Toole, J M, ‘Diocesan Archives: Twenty-Five Years of Preserving American Catholic History’ (1998) 16(1) U.S. Catholic Historian 1–2Google Scholar.

14 Morrisey, F, ‘Confidentiality, Archives and Records Management’ (2006) 26 The Catholic Archive 21Google Scholar.

15 Benedict XIV, Encyclical letter Satis vobis, 17 November 1741, nos 10–11, available at <https://www.vatican.va/content/benedictus-xiv/it/documents/enciclica--i-satis-vobis-compertum--i--17-novembre-1741-il-pont.html>, accessed 7 February 2023.

16 See Cafardi, N P, ‘Discovering the Secret Archives: Evidentiary Privileges for Church Records’ (1993–1994) 10(1) Journal of Law and Religion 97CrossRefGoogle Scholar.

17 Ibid, 99.

18 Pope Francis, Apostolic Letter m.p. L'esperienza storica, 22 October 2019, in Acta Apostolicae Sedis (AAS), 111 (2019), 1681–1683, English translation in Review for Religious (2020), 49–51.

19 Congregation for Catholic Education, Guidelines for the Use of Psychology in the Admission and Formation of Candidates for the Priesthood, 29 June 2008, no. 11, Enchiridion Vaticanum (EV), 25 (2011), 1271–1272. See Canons 241 §1 and 1029. For irregularities for receiving orders, see Canons 1040–1041; for other impediments for receiving orders, see Canon 1042. Canon 1044 addresses those who are irregular for the exercise of orders received and those impeded from the exercise of orders.

20 Maida, A J, ‘The Selection, Training and Removal of Diocesan Clergy’ (1990) 53 The Catholic Lawyer 55–56Google Scholar, cited in Cafardi (note 16), 114.

21 Congregation for the Clergy, Instruction on the Gift of the Priestly Vocation Ratio fundamentalis institutionis sacerdotalis, 8 December 2016, Vatican City, L'Osservatore Romano, 2016. no. 189.

22 See P C Kleponis, review of the USCCB Guidelines for the Use of Psychology in Seminary Admission, in The Linacre Quarterly, 83 (2016), 221. Any psychologist who has been asked to evaluate candidates for the seminary or religious life should familiarise himself with the 2008 Guidelines for the Use of Psychology in the Admission and Formation of Candidates for the Priesthood by the Congregation for Catholic Education, the 2016 Instruction on the Gift of the Priestly Vocation Ratio fundamentalis institutionis sacerdotalis by the Congregation of the Clergy, and the guidelines developed by each particular Church or religious institute.

23 Sacred Congregation for Religious and Secular Institutes, Instruction Renovationis causam, 6 January 1969, in AAS 61 (1969), 103–120, §10, III, as cited in Ingels, G, ‘Protecting the Right to Privacy When Examining Issues Affecting the Life and Ministry of Clerics and Religious’ (2000) 34 Studia Canonica 444Google Scholar. Pope Pius emphasised that, for the protection of the right to privacy, ‘If … consent is unjustly extorted, any action of the psychologist will be illicit; if the consent is vitiated by a lack of freedom (due to ignorance, error, or deceit), every attempt to penetrate into the depths of the [individual's] soul will be immoral’ (Pius XII, Address to the Participants at the 8th Congress of the International Association of Applied Psychology, 10 April 1958, in AAS, 50 (1958), English translation in The Pope Speaks, vol 5, no. 1 (1958), 13.

24 Ibid, no. 195.

25 On 6 August 1976, Cardinal Villot, Secretary of the Secretariat of State, issued an instruction to pontifical representatives throughout the world following the address by the United Nations Economic and Social Council questioning psychological methods and related treatment which were being used in certain nations (Instruction of the Secretariat of State, 6 August 1976, Prot. No. 311157, cited in Ingels (note 23), 440.

26 Congregation for the Clergy, decision, 8 October 1998, Prot. No. 980, cited in Ingels (note 23), 458. The decision was reached after a bishop attempted to coerce his priest to undergo psychological assessment under obedience.

27 Secretariat of State, Instruction to Pontifical Representatives, 6 August 1976, cited in Ingels (note 23), 440.

28 Ingels (note 23), 450.

29 Ibid, 452.

30 Ibid, 450.

31 F Morrisey (note 14), 23. ‘Record’ is defined as correspondence, documents, digital or printed, or any other media generated, distributed or maintained by church personnel in the performance of their duties.

32 Shaw, R, Nothing to Hide: Secrecy, Communication in the Catholic Church (San Francisco, 2008), 64Google Scholar.

33 Dulles, A, ‘Rights of Accused Priests: Toward a Revision of the Dallas Charter and the ‘Essential Norms’ (2004) 190(20) America 2Google Scholar. The Australian Catholic Bishops Conference decreed in December 2000 that ‘All person are presumed innocent unless and until guilt is either admitted or determined by due process. If church personnel accused of abuse are asked to step aside from the office they hold while the matter is pending, it is to be clearly understood that they are on leave and that no admission of guilt are implied by this fact. Unless and until has been admitted or proved, those accused should not be referred to as offenders or in any way treated as offenders’ (cited in ibid, 1–2).

34 See das Neves, J C and Vaccaro, A, ‘Corporate Transparency: A Perspective from Thomas Aquinas’ Summa Theologiae’ (2013) 113 Springer Science and Business Media 645Google Scholar.

35 Mendoza-Ovando, C, ‘What Kind of Transparency for the Church? Proposing Operational Transparency for Processes, Solutions and Decisions in the Catholic Church’ (2020) 5(2) Church, Communication and Culture 225CrossRefGoogle Scholar.

36 Vitioli, M, ‘Confidentiality and the Pontifical Secret’ (2020) 109 Periodica 18Google Scholar. Publication of names, specific accusations, cautionary measures, eventual civil convictions, experts’ reports, therapies, or photographs are published, for example, in the Diocese of Milwaukee. ‘List of Clergy Offenders–in line with the assurances given in the Charter for the Protection of Children and Young People, these are the names of diocesan priests of the Archdiocese of Milwaukee who have been (or would be if they were still alive) restricted from all priestly ministries, may not celebrate the sacraments publicly, or present themselves as priests in any way. In addition, in accordance with the canonical norms that have been established, the allegations against any living priest are sent to the CDF’; available at <https://www.archmil.org/clergy-abuse-response/restricted-priests.htm>, accessed 7 February 2023.

37 Vitioli (note 36), 18.

38 Secretariat of State, Instruction on the Confidentiality of Legal Proceedings, 17 December 2019, available at <https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2019/12/17/191217b.html, accessed 7 February 2023; cf. John Paul II, Apostolic Letter m.p. Sacramentorum sanctitatis tutela, Norms on Grave Delicts reserved to the Congregation for the Doctrine of the Faith, 30 April 2002, in AAS, 93 (2001), 737–739, article 6.

39 Pope Francis, Apostolic Letter m.p. Vos estis lux mundi, 7 May 2019, article 1 §1, available at <https://www.vatican.va/content/francesco/en/motu_proprio/documents/papa-francesco-motu-proprio-20190507_vos-estis-lux-mundi.html>, accessed 7 February 2023.

40 Ibid, no. 3.

41 Juan Ignacio Arrieta, Commentary on the Rescript of Pope Francis on the Confidentiality of Legal Proceedings, available at <https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2019/12/17/191217f.html>, accessed 7 February 2023.

42 DeCew, J, ‘The Priority of Privacy for Medical Information’, in A Miller and J Paul, The Right to Privacy (Cambridge, 2000), 213Google Scholar.

43 Ong, E Kim Meng, ‘The Revised Canons 1390 and 1391: The Impact on the Rights to Good Reputation and Privacy’ (2022) 13(1) The Canonist 40Google Scholar.