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In re Fortieth Statewide Investigating Grand Jury

Supreme Court of Pennsylvania

November 20, 2019

IN RE: FORTIETH STATEWIDE INVESTIGATING GRAND JURY PETITION OF: R.M.L.

          SUBMITTED: December 14, 2018

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          TODD JUSTICE.

         In this appeal, we consider the question of whether excerpts from the mental health treatment reports of Petitioner, a Roman Catholic diocesan priest, which were obtained by the investigating grand jury in this matter via subpoena, may be included in Report 1 ("Report 1") of the 40th Investigating Grand Jury ("grand jury").[1] After careful review, we conclude that, under the Mental Health Procedures Act ("MHPA"), [2] this information is not subject to public disclosure. We therefore reverse the order of the supervising judge of the grand jury allowing inclusion of these matters in Report 1.[3]

         I. Background

         Petitioner is a priest who has served in a Pennsylvania Roman Catholic Diocese (the "Diocese"). In the mid-1990s, the Diocese received complaints that Petitioner had sexually abused an adolescent victim.[4] In response, the Diocese required Petitioner to receive inpatient evaluation and treatment at a facility specializing in providing integrated psychological, spiritual, and physical treatment (the "Facility"). At that time, Petitioner executed a release authorizing the disclosure by the Facility of confidential information acquired during the course of Petitioner's treatment to various officials of the Diocese (the "Release").[5]

         In 2016, the grand jury was convened by the Office of the Attorney General ("OAG") to examine allegations of past acts of child abuse by priests and other individuals associated with six Catholic dioceses in Pennsylvania. Grand Jury I. Pursuant to a subpoena served on the Diocese, Petitioner's mental health treatment records at the Facility were disclosed to the grand jury.[6] At the conclusion of its work, the grand jury prepared Report 1 for release to the public detailing its investigative conclusions and recommendations for reforms. Report 1 also contains summaries of abuse alleged to have been perpetrated by over 300 priests and other individuals. With respect to Petitioner, Report 1 includes four pages setting forth the grand jury's allegations against him and, as pertinent to the present case, details from Petitioner's mental health treatment records while he was at the Facility, including a recounting of matters which he discussed with mental health professionals while receiving therapy there.

         Prior to the date scheduled for the release of Report 1, Petitioner was informed by a letter from the OAG of the fact that he had been named in Report 1, provided with notice of that material, and provided with a copy of the order from the supervising judge overseeing the grand jury, the Honorable Norman Krumenacker ("supervising judge"), which granted Petitioner 30 days to file a written response to that part of the Report. Thereafter, Petitioner filed a motion with the supervising judge seeking redaction of specific portions of two pages of Report 1 detailing the grand jury's summary of communications between himself and mental health professionals involved in his care at the Facility during the evaluation and treatment process (hereinafter, the "challenged paragraphs").[7] Petitioner argued in the motion that public release of such information violated Section 7111 of the MHPA, which, as discussed infra, prohibits disclosure of treatment records of any individual who underwent inpatient mental health treatment without that individual's written consent. See 50 P.S. § 7111(a) ("In no event . . . shall privileged communications, whether written or oral, be disclosed to anyone without . . . written consent."). Petitioner also claimed that revealing such information about his treatment records violated the psychologist-patient privilege codified in 42 Pa.C.S. § 5944, and his right to privacy secured by the United States and Pennsylvania Constitutions.[8] The supervising judge conducted a hearing on these claims on June 14, 2018, after which he issued an order rejecting each of them; however, he certified his order as immediately appealable.

         In his opinion prepared pursuant to Pa.R.A.P. 1925(a), [9] the supervising judge agreed that Section 7111 prohibited the disclosure of Petitioner's mental health treatment records without his written consent; however, the supervising judge rejected Petitioner's claim that the OAG was required to obtain Petitioner's written consent to include them in Report 1. The supervising judge found that Petitioner had submitted to an evaluation at the Facility at the direction of his employer - the Diocese - in response to the allegations against him, and that he had signed what the supervising judge characterized as a "general release" in which Petitioner consented to the disclosure of confidential information obtained relating to his treatment. Supervising Judge Opinion, 7/2/18, at 3. In the supervising judge's view, because the Release contained no language limiting to whom the Diocese could disclose the records, nor limiting the purposes for which the Diocese was entitled to use the records, it granted the Diocese permission to disseminate the records as it deemed necessary. In addition, the supervising judge cited two other similar contractual waivers. Id. at 3-4.

         The supervising judge considered these documents, when viewed in their entirety, to be evidence of Petitioner's intent to share his medical and psychological records with the Diocese, and without limitation on how those diocesan officials could further disseminate them. The supervising judge reasoned that, once Petitioner chose to share those secrets, he no longer could assure they would remain secret, risking that they would be shared with others. Id. at 5. Consequently, the supervising judge ruled that, as the Diocese provided those records to the OAG in response to a subpoena, they could be used by the grand jury. Id.

         With respect to Petitioner's claim that the records were improperly released because they constituted confidential communications between himself and psychologists or psychiatrists, and, hence, were protected from disclosure under 42 Pa.C.S. § 5944 (prohibiting the examination of a psychiatrist or psychologist in a civil or criminal matter "as to any information acquired in the course of his professional services in behalf of such client"), the supervising judge also rejected it. Again, based on Petitioner's agreements to disclose information to the Diocese, the supervising judge considered Petitioner to have waived this privilege.

         Lastly, the supervising judge rejected Petitioner's argument that release of this information violated his right to privacy secured by the United States and Pennsylvania Constitutions. The supervising judge observed that, only if an expectation of privacy is reasonable will it be afforded constitutional protection. He found that Petitioner had no reasonable expectation of privacy in these treatment records once he agreed to share them with the Diocese, inasmuch as, in the supervising judge's view, the Diocese had no obligation to maintain the confidentiality of these records. Supervising Judge Opinion, 7/2/18, at 8. Once more, the supervising judge viewed Petitioner's agreement to share these records with the Diocese as a waiver of any constitutional protection he may have enjoyed with respect to those records.

         Petitioner filed a petition for review from the supervising judge's order with our Court, along with several dozen other individuals who challenged their inclusion in Report 1. Unlike Petitioner, these other challengers predominantly argued that their reputations were unconstitutionally impugned by statements contained in the Report, violating their due process rights. Because of the multiplicity of such petitions, and their attendant applications for emergency stay of the release of the Report, our Court issued an order on June 20, 2018 temporarily staying the release of Report 1 to enable orderly judicial review of the various legal arguments for or against disclosure of its full contents.

         On July 27, 2018, our Court issued an opinion and order allowing the release of Report 1, but also ordering that the identifying information of the challengers be temporarily redacted pending further appellate review of their constitutional and other challenges. See Grand Jury I. Accordingly, all identifying information concerning Petitioner in Report 1 was redacted at that time, and remains so.

         On December 3, 2018, our Court issued a second opinion and order addressing the due process challenges of eleven priests who had been labelled "predator priests" in the Report. See Grand Jury II. These priests contended that the Investigating Grand Jury Act[10] failed to afford them constitutionally sufficient due process to meaningfully challenge the allegations against them and, thus, impaired their ability to protect their right to reputation secured by Article I, Section 1 of the Pennsylvania Constitution. Our Court ultimately agreed, concluding that the procedures established by the Investigating Grand Jury Act were inadequate to protect their reputational rights, and, thus, we made the interim redaction of their identifying information final, as it was the only remedy available to rectify this due process violation. See id.

         Subsequent to Grand Jury II, our Court addressed the twenty similar requests by individual priests for redaction of their identifying information from Report 1. Pursuant to Grand Jury I and Grand Jury II, our Court granted each of those requests, by per curiam order, and directed that the temporary redaction of their names in Report 1 be made final. See, e.g., In re 40th Investigating Grand Jury, 76 WM 2018 (Pa. filed Dec. 14, 2018) (order). Accordingly, all that remains is Petitioner's distinct challenge under, inter alia, the MHPA. This matter was submitted on the briefs.

         Petitioner presently raises three issues for our Court's consideration:

1. Whether publication of the Report without redaction of Petitioner's confidential, privileged medical/psychotherapist evaluation and treatment communications and descriptions violates no less than five statutory and constitutional prohibitions?
2.Whether the Office of Attorney General's duty to maintain the confidentiality of such sensitive, privileged records is clear and self-executing, and its violation suggests a significant ethical breach?
3.Whether the supervising judge has a duty to protect the confidentiality of privileged medical records, even where the Office of Attorney General has obtained them lawfully and the court finds that there is a valid waiver?

Petitioner's (Redacted) Brief at 4-5.

         II. Arguments of the Parties

         As we find Petitioner's first issue to be dispositive, for reasons discussed at greater length herein, we set forth only the arguments of the parties pertaining to that issue. Petitioner argues that, because mental health treatment records contain personal information of a highly sensitive nature, these records have been strictly protected against public disclosure by the General Assembly through enactment of various statutes, and by the judiciary through application of the United States and Pennsylvania Constitutions.

         Statutorily, Petitioner contends that disclosure of his records was barred by Section 7111 of the MHPA, which sets forth the following restrictions on the release of the mental health treatment records of patients, like Petitioner, who voluntarily received mental health treatment at a mental health clinic:

(a) All documents concerning persons in treatment shall be kept confidential and, without the person's written consent, may not be released or their contents disclosed to anyone except:
(1) those engaged in providing treatment for the person;
(2) the county administrator, pursuant to [50 P.S. § 7110];
(3) a court in the course of legal proceedings authorized by ...

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