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*** Canonical Revision 7 28 86.4. Ecclesiastical Records
Canon law refers to two types of of archives or records: the ordinary
diocesan archives and the secret archives. In fact, there are numerous
types of records kept in most if not all diocesan curias. These include
financial records, lay personnel records, insurance , priest personnel
records, tribunal acts etc. In most dioceses the priest personnel
records are kept in a separate file. What is contained in each priest
s file can vary greatly with the dioceses and its policy. Usually
seminary records, transfer indications, letters of commendation and
complaint and other related matters are kept In the priest s file.
In some instances, recorded conscience matters which would include
such matters as sexual misconduct, are also contained in the priest
s file.
b. The diocesan archives: Canon 487 states that only the bishop and
chancellor may have keys to the archives and permission for entry
must be obtained from the bishop , moderator of the curia or the chancellor.
This is a broad canon which implies that the wide range of materials
which could be placed in the archives enjoy a degree of security and
confidentiality.
The same canon also states that persons concerned have a right to
receive copies of documents which concern their personal status and
are by nature public. Thus access to certain documents about persons
could be restricted if these are not considered public by nature.
Complaints about sexual misconduct would not be considered public
by nature.
Canon 488 states that documents may be removed from the archives only
for a short time and then with the permission of the bishop, moderator
of the curia or chancellor.
While the canon law on diocesan records may be clear and may be presumed
to guarantee security of files and confidentiality, the fact remains
that in certain civil courts in the U.S. decisions have been handed
down which have held that the contents of diocesan records, including
priest-personnel files and even tribunal files, are not absolutely
confidential and thus may be discovered in a civil court process.
b. The secret archives: Canons 489 and 490 refer to the secret archives
of the diocese. The canons describe this as a secure place which is
either separate from the other archives or, if this is not possible,
is a place in the diocesan archives which Is secure. Only the bishop
Is to have the key to the secret archives.
The canons do not describe in detail what is to be kept in the secret
archive. Yet canon 489, 2 states that documents of criminal cases
concerning moral matters are to be destroyed if the guilty parties
have died or ten years after the sentence in the case has been pronounced.
This implies (an implication confirmed by commentaries on the similar
canon in the 1917 Code) that cases involving moral and criminal matters
are by their very nature the matter of the secret archives. They are
secret when actually in the place of the archives or not. Canon 1719
clearly states that the acts of the inves-tigation of the penal process,
the decrees of the ordinary by which the investigation was opened
and closed and all other matters which preceded the investigation
are to be kept in the secret archives. By this canon it is clear that
all documents related to a penal process, even though this process
may not be concluded by sentence, are to be kept in the secret archives.
If for instance, complaints of sexual misconduct are investigated
by the ordinary, every document pertaining to the complaint could
be construed to be related to the preliminary and formal investigation
of the penal process and thereby part of the secret archives.
Although the inviolability of the secret archives Is clear in canon
law, it is not so certain that such is to be respected by the civil
law. Random legal opinions indicate that even the serious matters
contained in the secret archives could be subpoened in the civil courts.
The matter is still under research.
As a possible manner of distinguishing between the diocesan archives
and the secret archives which pertain to priest personnel problems,
the bishop could have all material related to conscience matters of
a moral nature placed in separate files which he personnally would
keep, at his residence for instance. These could be labelled "conscience"
files or something similar which would indicate that they contained
matters which only the bishop, in keeping with his unique relationship
to the priest, had access to.
c. Recording sexual abuse: Reports of alleged sexual abuse or sexual
misconduct as well as records of investigations should be kept in
the secret archives and certainly not in the diocesan archives or
the ordinary priest-personnel files.
5. The Limits of A Bishop s/Superior s Responsibility
The question involves the limits of a bishop s responsibility for
those clerics who are working or living in his diocese. This responsibility
is looked upon differently in civil law and canon law, yet the civil
law might well look to the canon law to clarify questionable areas.
a. The relationship to incardinated clerics: It is clear that a bishop
is responsible for clerics who are incardinated to his diocese. This
includes diocesan priests, transient deacons destined for ordination
to the priesthood and permanent deacons. Canon 273 states that clerics
have a special obligation to show respect and obedience to their own
ordinary and to the Supreme Pontiff.
cont: The bishop also assigns ecclesiastical offices in his diocese,
including pastorates and associate pastorates, by free conferral (canons
157. 523. 547. 682). This means that the bishop alone has the power
and the right to confer an ecclesiastical office or, in other words,
to make an assignment. In those dioceses which have personnel boards
or officers, these have no power nor can they be given the power to
make assignments or confer offices. These canons are based on the
nature of the episcopal office and the contingent relationship of
the bishop to his cleric subjects.b. The relationship to visiting
clerics: It is common for clerics, especially priests, to work or
study in dioceses other than their own by incardination, for temporary
periods of time of varying length. The usual custom to to seek the
permission of the local bishop for such a cleric to live and work
in the host diocese, with the permission of his own bishop. This possibility
is outlined in canon 271, 2, 3.
Such a cleric working In a diocese other than his own is responsible
to the host bishop for the apostolic work he does and for his actions
which carrying out his clerical duties. Because the bishop is the
bead of the local church , his responsibility for all clerics living
and working under his jurisdiction is comprehensive as is the responsibility
of these clerics to the bishop. Although the law does not mention
It, the cleric s proper ordinary would seem to have an obligation
in justice to Inform the host ordinary of any problems the cleric
might have which would possibly have an effect on his life and work
in another diocese.
c. Religious clerics: Clerics who are members of religious institutes
have their own major superiors as their proper Ordinary. This superior
is usually called a "provincial." It is not the local superior of
the community in which the religious lives but the superior over the
territorial grouping of religious of the same institute. The major
superior s responsibility to his clerics is similar to that of the
bishop to his clerics.
Religious living and working in a diocese are subject to the local
bishop In those matters which Involve education, public worship or
the apostolate (canon 678). In most cases they are not subject to
the bishop In the internal ordering of their lives. This is known
as the privilege of exemption which applies to most clerical religious
institutes (known also as orders, congregations and in some cases,
societies). Nevertheless if the local bishop becomes aware of serious
internal abuses he may intervene if appeals to the proper religious
superior prove to be ineffectual (canon 683, 2).
In matters of sexual misconduct, a religious cleric is responsible
both to his own superior and to the bishop of the diocese in which
he lives/works/resides. If the bishop becomes aware of an alleged
incident he is within his rights to notify the religious proper ordinary
and also to conduct his own preliminary Investigation. The law gives
the local bishop the right to impose a suspension on a religious cleric
by reason of penalty (canon 1341-42) and by means of an administrative
decree or precept (canons
48 58)
A bishop may also forbid a religious to remain In his diocese for
grave reasons (and alleged sexual misconduct would certainly be one)
provided the cleric s major superior has been informed and has failed
to act. The latter is to be reported to the Holy See (canon 679).
d. Suspended clerics: Is the diocesan bishop responsible for priests
or deacons whom he as suspended (or someone else has suspended). It
is clear that such clerics are merely suspended and are not dismissed,
thus they remain clerics and the local bishop is still responsible
for vigilance oversuch clerics. Similarly the clerics are responsible
to their bishop.
cont: If for instance, a bishop were aware of an act of sexual misconduct
by a suspended cleric, he could not absolve himself of responsibility
or possible liability by the fact of the cleric s suspension.
e. The bishop s financial responsibility: The nature of the bishop
s relationship to support his clerics has changed from the 1917 Code.
The 1983 Code (Canon 281, 1, 2) refers to the support of priests and
transient deacons and non-married permanent deacons in some circumstances.
Essentially a bishop is obliged to provide remuneration to the cleric
as befits his condition taking into account both the nature of the
cleric's office and the conditions of time and place. The second paragraph
states that suitable provision be made for such social welfare as
the cleric may need in infirmity, sickness or old age.
Also, canon 1350, 1 says "In imposing penalties on a cleric, except
in the case of dismissal from the clerical state, care must always
be taken that he does not lack what is necessary for his worthy support."
To arrive at the canonical nature of the bishop s financial responsibility
one must study the two canons in context.
First, it is clear that the bishop responsible is the bishop of incardination.
Secondly, he is obliged to support his clerics but not unrealistically.
The bishop may not withdraw all support from a cleric who is withdrawn
from an assignment pending an investigation into sexual misconduct.
If the allegation is proven and the cleric is suspended, the bishop
must study the cleric s needs and his capacity to support himself
and if necessary, he (the bishop) is obliged to assist in supporting
the cleric.
This support includes provision for psychiatric and medical care.
A bishop cannot waive his obligation to such support by explicitly
excluding clerics involved in sexual misconduct. Is the bishop bound
to provide legal assistance to clerics in trouble? Strictly speaking
his Is not, however he may choose to do so out of charity and with
a view to the impression that could arise If refused to assist a cleric
in trouble In such a manner.
The second paragraph of canon 1350 states that if a cleric is dismissed
and is truly in need, then the bishop is obliged to provide for him
in the best way possible.
The matter of financial support is most important since clerics involved
in sexual misconduct, especially pedophilia will most probably be
suspended and will need extensive psychiatric care as well as legal
assistance. The cleric may have little means of outside support and
will therefore depend on the bishop or diocese for help. Like a cleric
suffering from cancer, a pedophiliac suffers from a serious emotional/mental
disorder. Unlike the cleric suffering from a physical disease, the
symptoms of the pedophiliac s illness are also criminal actions.
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