Appellate ruling rejects Albany diocese’s efforts to keep pedophile priests’ records secret

Times Union [Albany NY]

April 24, 2022

By Brendan J. Lyons

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The Roman Catholic Diocese of Albany’s effort to keep secret the psychological treatment records of suspected pedophile priests was rejected Thursday by a state appellate court in a ruling that could affect thousands of Child Victims Act cases in New York.

The appellate panel also upheld state Supreme Court Justice L. Michael Mackey’s decision ordering the diocese to turn over the personnel records of at least 48 priests whom the church determined had been credibly accused of child sexual abuse over a period stretching from 1946 to 1999.

he ruling will potentially impact the pre-trial discovery evidence in hundreds of cases filed against the Albany diocese. It is also significant because there was little legal precedent in child abuse litigation prior to the enactment of the Child Child Victims Act three years ago that temporarily lifted New York’s statute of limitations and enabled thousands of alleged victims to seek recourse against the individuals or institutions potentially liable for their abuse.

The appellate division case in Albany was centered on a lawsuit in which the attorneys for an alleged abuse victim sought records outlining the “sexual deviancy” treatment received by the Rev. Edward Pratt and other priests. Pratt is a former vice chancellor who was once ex-Albany Bishop Howard J. Hubbard’s second in command.

The alleged victim in that case, Michael Harmon, said he was abused in the 1980s by Pratt, including inside the chancery in a room across the hall from where Hubbard lived. Harmon has said that while Hubbard never abused him, the bishop was aware that the boy would spend multiple nights each week in Pratt’s bedroom.

The diocese had argued that the psychological treatment records of the priests were subject to patient-physician privileges, but Mackey had ruled that privilege was waived when the priests’ medical records were shared with Hubbard.

At that point, the court ruled, they fell into the realm of business records subject to disclosure to the plaintiffs.

“As Supreme Court correctly found, Pratt waived any privilege with respect to the psychologist’s report by consenting to its release to the bishop, and defendants failed to establish that the authorization under which the psychologist communicated with the bishop was limited in any way,” the appellate panel’s ruling states. “The report from the psychologist was directly addressed to the bishop, and any arrangement between those two does not create a psychologist-patient relationship.”

The diocese also had fought against the release of information about alleged victims of suspected abusive priests or others. Attorneys for plaintiffs have argued that information on other alleged victims is critical to their ability to show what the diocese knew about abusive priests — including many who were returned to ministry after receiving treatment only to commit abuse again.

Michael L. Costello, the diocese’s attorney, had argued that any evidence of other alleged sexual abuses would be “prejudicial.”

“The varying nature of the allegations in each case, as well as the varying histories of the priests involved and the weighing of credibility as to the allegations are all factors that must be taken into consideration in determining a response to sexual abuse claims,” Costello had argued.

Mallory C. Allen, an attorney for Harmon, told the appellate division that the records, including the treatment files on Pratt, should be turned over.

“They may show the diocese knew Father Pratt’s treatment was unsuccessful; they may show the diocese was warned that Father Pratt was a pedophile who would continue sexually abusing children, like Michael, if given access to them,” Allen wrote in a memorandum filed with the court. “They may show Father Pratt admitted to abusing children; and/or, they may show Father Pratt discussed the fact that the diocese was aware that he was abusing children, including before or during Michael’s abuse, and did nothing.”

Although the diocese has publicly supported the Child Victims Act — after years of the Catholic church lobbying against its passage — and attested to its efforts to help alleged victims, its legal team has also waged a fierce battle in court to prevent the release of many of the records that documented the abuse and their internal handling of it.

“The claims of the victims-survivors remain the highest priority of the diocese,” the diocese said in a statement Thursday evening in response to the appellate division’s ruling. “The guidance and orders provided by the courts are respected and followed with compliance.”

Last month, Mackey also ordered the release of a lengthy deposition of Hubbard that took place a year ago when the former bishop was questioned for four days by attorneys representing dozens of individuals who filed claims under the Child Victims Act.

During the deposition, Hubbard testified under oath that he and the diocese systematically concealed incidents of child sexual abuse and did not alert law enforcement agencies when they discovered it, saying their actions were, in part, intended to avoid scandal and preserve “respect for the priesthood.”

Brendan J. Lyons is a managing editor for the Times Union overseeing the Capitol Bureau and investigations. Lyons joined the Times Union in 1998 as a crime reporter before being assigned to the investigations team. He became editor of the investigations team in 2013 and began overseeing the Capitol Bureau in 2017. You can reach him at [email protected] or 518-454-5547.

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