Trove of Buffalo Diocese abuse records turned over to victims in bankruptcy court

Diocese lawyers began handing over the files in December under the terms of an agreement that they hashed out with abuse survivors who make up the committee of unsecured creditors in the diocese’s Chapter 11 bankruptcy reorganization, according to multiple sources.

Whether the general public will be able to examine the confidential records someday remains unclear and likely will be subject to intense negotiations during the bankruptcy proceedings.

In exchange for the records, the creditors committee agreed not to press forward with sex abuse lawsuits against individual parishes and other Catholic entities. The committee also agreed to keep confidential the contents of the diocese documents – at least for now.

Ultimately, though, many survivors want public disclosure of diocese abuse files that have been secret for decades.

“It means a lot to them to find out what those facts are. They’re almost always primarily motivated by a desire to know the truth and to expose the truth and then to be able to see that it doesn’t happen again,” said Marci A. Hamilton, CEO and legal director of Child USA, a nonprofit organization that works to prevent child abuse and neglect.

Hamilton and many abuse survivors have said that bishops can simply disclose files, instead of allowing lawyers to use them as a negotiable item in bankruptcy. Bishop Michael W. Fisher, the new leader of the Buffalo Diocese who will be installed on Jan. 15, hasn’t specifically addressed the question of whether he would release the diocese’s confidential files on clergy abuse.

But diocese spokesman Greg Tucker suggested that doing so would be neither simple, nor easy.

“Bishop Fisher has already expressed his commitment to transparency and the essential work of bringing about healing among those harmed by clergy sex abuse,” Tucker said in a statement. “The process of disclosing details contained in files is a protracted one and will necessarily be guided by privacy requirements in the interest of victim-survivors as well as others. Whether publicly disclosing the contents of files would promote those goals is something Bishop Fisher will be considering after he is installed in mid-January.”

Unfortunately for abuse victims, federal bankruptcy court hasn’t been a great venue for such disclosures, because bankruptcy judges don’t treat abuse claims as individual cases that each merit full discovery, as in a civil lawsuit, said Hamilton.

It’s one of the reasons Hamilton and other advocates for abuse victims will be pushing members of Congress to reform the nation’s bankruptcy laws.

“No one ever thought it would be a vehicle for clearing large numbers of child sex abuse cases,” said Hamilton. “Right now, it’s a cruel system.”

They will seek legislation that removes child sex abuse cases from federal bankruptcy jurisdiction or at least reforms the bankruptcy process so that it isn’t used to short-circuit the public benefits of civil litigation, including the release of information on abusers.

As it is now, document disclosures must be negotiated as nonmonetary terms of a diocese’s settlement, and Hamilton said that dioceses grant their lawyers “a very long leash” to use hardball tactics against abuse survivors in the proceedings.

What happened elsewhere

The largest release of internal church files happened in the Archdiocese of Los Angeles in the early 2000s, after hundreds of abuse victims sued under legislation in California that suspended the statute of limitations in child sex abuse cases. The archdiocese did not declare bankruptcy. It agreed to the disclosures as part of a global settlement with victims.

Few creditors committees have negotiated significant amounts of document releases in other diocese bankruptcy cases.

The diocesan bankruptcy cases in New York could be different, because the Child Victims Act window that suspended the civil statute of limitations in child sex abuse cases continues until Aug. 14, giving abuse survivors some leverage in negotiations with diocese lawyers, Hamilton said.

“The victims can pose a choice to the diocese, and the choice is, ‘OK, we’ll stay in the bankruptcy, so long as you do X, Y and Z as part of this. Or, we’re just going to go back into the (state) court system and you’re just going to have to deal with lawsuits,' ” she said.

Some victims already have chosen the latter route.

Attorney Richard P. Weisbeck Jr. of the Lipsitz Green Scime Cambria firm represents 35 plaintiffs moving forward with Child Victims Act cases in state court against parishes and other Catholic entities.

The bankruptcy filing automatically stayed, or put on hold, any litigation against the diocese in state courts. But that stay does not apply to parishes and other Catholic entities, which are separate nonprofit corporations. So, the diocese negotiated a deal with the creditors committee to extend the same stay protections to parishes, in exchange for church documents on clergy abuse and other matters.

Weisbeck objected to the deal, in part because it includes a confidentiality and nondisclosure agreement prohibiting members of the creditors committee from making the church documents publicly available.

“If you’re going to get the protection of a bankruptcy court from lawsuits, and as part of that bankruptcy proceeding, you’re required to turn over documents and information to creditors, that should never be secret,” said Weisbeck. “That’s frustrating the intent of the Child Victims Act, which is not only to get compensation for people who were injured as children, but also to expose the wrongdoing of organizations that protected child molesters within their ranks.”

Chief Judge Carl L. Bucki of the U.S. Bankruptcy Court in the Western District of New York approved the arrangement between the diocese and the creditors committee but also ruled that Weisbeck’s clients would not be bound by it.

Some Buffalo abuse files public

Some diocese files already have been publicly revealed in a scathing report by Attorney General Letitia James released in November. But the files included in the report were heavily excerpted and limited to the diocese’s handling of 25 priests who were not identified by name.

More than 170 priests who served in the Buffalo Diocese have been accused of sex abuse in Child Victims Act lawsuits.

A spokeswoman with the Attorney General’s Office said the investigation is still active and declined to comment on whether unabridged files obtained through subpoenas dating back to 2018 would be released publicly.

The diocese gave investigators with the Attorney General’s Office files on 69 priests accused of sexual abuse or misconduct. But the AG’s report also noted that the diocese had publicly identified 78 priests as child sex abusers and had not handed over files for half of them.

Diocese spokesman Tucker said the diocese was cooperating with the Attorney General’s Office to hand over subpoenaed documents on a “rolling production schedule.”

“Keep in mind that each file must be reviewed to prevent the unauthorized release of privileged information pertaining to abuse victims-survivors, as well as those accused. Throughout the production of documents and files, the diocese has been fully responsive and has discussed the pace of the production of documents with the (Attorney General’s Office),” Tucker said in a statement.

It’s unclear when Weisbeck will be allowed to move ahead with discovery in his lawsuits, which could lead to the production of many internal church documents. A State Supreme Court judge has yet to rule on his motions to sever claims against the diocese, so that he can move forward with cases against parishes and schools.

Just prior to the diocese’s bankruptcy filing last February, attorney J. Michael Hayes received more than 1,000 pages of internal diocese documents through a discovery request in Child Victims Act cases alleging abuse by the Rev. William White and the Rev. Norbert Orsolits. But State Supreme Court Judge Deborah Chimes ordered that Hayes not share the documents with anyone else.

Prior to the diocese’s production of documents in bankruptcy proceedings, Hayes is believed to be the only plaintiff’s lawyer who received diocese files through discovery in a Child Victims Act case.

Hayes said his cases are on hold while insurance coverage for the diocese and parishes is sorted out. But he said if documents have been produced to the creditors committee, all plaintiffs’ lawyers with cases against the diocese should have access to them. Hayes said he has not been made aware of those documents.

Attorney Mitchell Garabedian, who represents several dozen plaintiffs in Child Victims Act cases against the diocese and parishes, said his office is reviewing documents received by the committee so far and he anticipates more will be on the way.

The creditors committee, as part of its agreement with the diocese, asked for 74 categories of files, many of them related to the diocese's finances but nearly a third of which deal with sexual abuse. The diocese must produce the files by Jan. 31.

Garabedian said he couldn’t comment on the contents of the materials received so far because of the nondisclosure agreement.

“Ultimately, survivors and victims want to see these documents made public,” he said. “That is a primary concern of victims and survivors because the documents represent the truth, and they will help victims trying to heal.”

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