Albany diocese ordered to turn over clergy abuse files
Albany diocese must surrender information, but judge seals it
By Brendan J. Lyons
Updated 11:23 am, Saturday, November 2, 2013
The Roman Catholic Diocese of Albany has been ordered by a federal judge to turn over nearly 40 years worth of clergy abuse files to a Warren County man who is suing the diocese and a priest who raped him as a young boy.
It’s the first time the Albany diocese has been ordered by a court to fully disclose itsconfidential files on priests and other employees accused of sexual abuse. But the ruling by U.S. District Judge William K. Sessions III includes a sealing order that, for now, will keep the records from being made public. The sealing order was requested by the diocese and Gary J. Mercure, an imprisoned Albany priest who is accused of systematically raping and abusing altar boys for years.
The order requires the diocese to turn over its internal records on sexual abuse by priests and other employees dating to 1975.
“This is the first time the diocese has been ordered to turn over 38 years of records involving individuals — current and former clergy and employees, and even those who have made complaints of sexual abuse — who have absolutely nothing to do with the case at hand,” saidKenneth Goldfarb, a spokesman for the diocese. “The diocese sought a protective order because, surely, the privacy rights of these individuals warrant the same protection that the federal court already granted to Gary Mercure by issuing a protective order for his files.”
The decision was handed down in a lawsuit filed by a 37-year-old man who said he was raped by Mercure in New York, Massachusetts and Vermont beginning in the early 1980s when he was about 8 years old. The victim filed his lawsuit against the diocese and Mercure in Vermont because New York’s statute of limitations prevented any claim or criminal action here.
The victim’s identity is being withheld by the Times Union under a policy not to identify victims of rape or sexual abuse without their consent.
For two years, the diocese waged a fierce legal battle to have the case dismissed on jurisdictional grounds, arguing they had no legal ties to Vermont. They lost that argument but have now prevailed on their motion to keep secret, at least for now, possibly thousands of pages of clergy abuse files that will be turned over to the victim’s Vermont attorney.
“At this point, the court will grant the diocese’s request for a protective order so that the disclosures may be used only by litigants and not shared with others,” Sessions wrote in his decision.
The ruling came three weeks after the Times Union published a story Oct. 13 detailing Mercure’s history of sexual abuse, which dates to the late 1970s, that was outlined in 88 pages from his confidential files. The records were attached to a motion filed by the victim’s attorney,Jerome F. O’Neill of Burlington. O’Neill attached the files to a motion complaining the diocese had heavily redacted the documents before turning them over. The judge, as part of his order this week, directed the diocese to give O’Neill unredacted copies.
Mercure’s attorneys had filed a separate motion, two days before the Times Union’s Oct. 13 story was published, asking the judge to seal Mercure’s files.
“This is the exact reason that defendant Mercure sought a protective order; so that details of his personnel files were not disseminated to the media for the sole purpose of creating a spectacle,” wrote Shannon A. Bertrand, a Vermont attorney handling Mercure’s case.
Sessions ruled the unredacted copies of Mercure’s files must also remain sealed from public scrutiny. “The court will review the issue of disclosure of these documents to the public prior to trial,” the judge said.
The case is scheduled for trial next year unless the diocese, Mercure and the victim reach a settlement.
In 2007, the Archdiocese of Los Angeles agreed to release more than 12,000 pages of sexual abuse files as part of a settlement that paid about $660 million to more than 500 victims of clergy abuse. Attorneys for the victims in that case said disclosure of the files was a key part of the settlement.
O’Neill, who represents the victim in Vermont, said: “If we resolve this case we will make every effort to have the records released. However, ultimately, the issue is the client’s. If he decides he wants to resolve the case and that resolving it is more important than having the documents made public, we will have no choice but to follow his dictates.”
Goldfarb said the diocese is still reviewing Session’s ruling.
“The diocese already has complied with the request to turn over more than 50,000 pages of documents in this civil case and earlier cooperated with law enforcement authorities who brought criminal charges against Mercure,” he said. “It was the Albany diocese that first alerted law enforcement authorities to Mercure’s crimes and barred Mercure from priestly ministry in 2008.”
The 50,000 pages Goldfarb referenced were mostly business records disclosed on the argument over jurisdiction, and not clergy abuse files. Mercure’s personnel file was just 563 pages.
However, the judge this week ordered the diocese to turn over additional records on Mercure, including “all reports, reviews, or other internal or external investigations of misconduct by Mercure … (and) all demand letters, correspondence, pleadings, or discovery where a person sought compensation as a result of Mercure’s conduct.”
O’Neill said the judge’s order is unprecedented.
“The court’s order will require that for the first time the diocese produce all documents relating to Mercure,” O’Neill said. “Equally important, for what we believe is the first time ever for this diocese, it will have to produce documents going back to 1975 as to sexual abuse of children in the diocese by other priests and employees. This is important information that the public should see.”
Mercure, 65, was a priest for the Albany diocese from 1974 to 2008, when he was removed from ministry. He has been accused of sexually abusing altar boys he met at parishes in Albany, Queensbury and Glens Falls. The diocese last year petitioned the Vatican to have Mercure removed from priesthood. He was convicted in Massachusetts in 2011 of raping two altar boys — including the alleged victim in the Vermont case — during ski trips to Berkshire County, and sentenced to up to 25 years in prison. He lost an appeal of his conviction.