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Rosado v. Bridgeport Diocese: Privacy, Freedom of Religion, and the Public's Right to Know

by Professor Will Huhn on July 23, 2009

in Constitutional Law,Wilson Huhn

     On June 2, 2009, the Connecticut Supreme Court issued a ruling in the case of Rosado v. Bridgeport Roman Catholic Diocesan Corporation ordering the release of over 12,000 documents, previously under seal, describing how the Roman Catholic Diocese of Bridgeport, Connecticut, had handled allegations of sexual abuse in 23 separate cases.  On July 17 the Chicago Sun-Times reported that the Diocese had appealed the ruling to the United States Supreme Court on the ground that the disclosure of these documents would violate its rights under the Establishment Clause and the Free Exercise Clause of the First Amendment.  The Supreme Court is not likely to decide that issue, at least not right away.  

     Beginning in the mid-1990s twenty-three lawsuits alleging sexual abuse were filed against the Bridgport Diocese.  During the discovery process over 12,000 documents were produced and many witnesses testified under oath during deposition, but it was agreed that all of the information would remain under seal until trial.  The case was settled, and the documents and depositions have remained under seal ever since.

     A number of newspapers sued to gain access to the documents, and the Connecticut courts agreed that under state law the documents are "public records" because they were filed with the court for the purpose of obtaining a judicial ruling.  In its latest ruling the Connecticut Supreme Court also found that by producing the documents in court without asserting these privileges the Diocese had waived its rights to claim various statutory and constitutional privileges.  The Diocese claimed that it assumed that because all of the documents were still under seal that it was not necessary for it to claim the privileges.  Here is the key ruling of the Connecticut Supreme Court on the question of waiver:

In the present case, it is undisputed that the defendants failed to assert privileges at the time that they disclosed the documents to the plaintiffs. It is also undisputed that the information was produced by the defendants during discovery, either through deposition testimony or documents delivered to the plaintiffs. Because the defendants failed to claim these privileges or rights at the time of disclosure and because the defendants voluntarily disclosed the information to its adversaries in litigation, the defendants cannot now be heard to complain that the information should not be disclosed to others.

To the extent the defendants claim that they did not waive the privileges because they disclosed information with the understanding that it would be sealed, they cite no authority, nor have we uncovered any, to support that proposition.

     In short, this case presents some fascinating questions involving a conflict between different components of the First Amendment: (1) Does the news media have a First Amendment right to access to public records; (2) Does the public have a constitutional right to access to those public records; (3) Does a church have a constitutional right to refuse to produce information when it is sued for acts of abuse; (4) If such a case is settled, does a church have a constitutional right to keep those records sealed?

     Even if it does accept this case on appeal, the United States Supreme Court is not likely to answer any of those questions, because the Connecticut Supreme Court did not rule on any of those points.  The only issue that the United States Supreme Court might decide is whether the Diocese waived its constitutional privileges by producing the documents in court, under seal.  If the United States Supreme Court rules in favor of the Diocese on this point, the case would be sent back to the state courts to determine whether the church's arguments under Freedom of Religion outweigh the newspapers' arguments under Freedom of Speech.

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