Lawyers Clash over Nebraska Catholic Sex Abuse Records; A.g. Says Not All Documents Turned over

By Christopher Burbach
Omaha World-Herald
May 2, 2019

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Catholic officials in Nebraska have not turned over all sexual abuse records demanded two months ago by sweeping subpoenas, although the vast majority of Catholic institutions in the state have complied, the Nebraska Attorney General’s Office said in court Thursday.

The records not turned over, according to church attorneys, include psychiatric evaluations of perpetrators, medical records of priests and victims and confidential settlement agreements. The Archdiocese of Omaha says it is prohibited by law from releasing those records, and will turn them over only if a court orders it to do so.

“Those are the only things we have not turned over,” said Deacon Tim McNeil, chancellor of the Omaha Archdiocese.

The Attorney General’s Office issued the subpoenas in late February to Nebraska’s three Catholic dioceses and nearly 400 churches, schools and other institutions across the state.

That followed Attorney General Doug Peterson’s request that the dioceses voluntarily turn over 40 years of records on sexual abuse by priests or other employees.

The dioceses of Omaha and Lincoln filed suit in Lancaster County District Court in March to quash the subpoenas.

The dioceses said they wanted to comply and were trying to do so, but asked the court to quash the subpoenas, saying they carried an impossible-to-meet deadline of three days, were overly broad and could potentially cost millions of dollars to fulfill.

The court case had been on hold, and a hearing twice postponed, while the two sides agreed to work out their differences.

In a hearing Thursday, Assistant Attorney General Ryan Post said many records are being turned over, and he asked for the lawsuit to be dismissed so the parties could continue to work things out.

Post said the Attorney General’s Office had issued the subpoenas only when, six months after its request for records to be voluntarily turned over, it became clear that not all records were being turned over and that some were redacted.

Some used only initials for some of the names, Post said.

Patrick Flood, an attorney for the Omaha Archdiocese, told the court that the hundreds of churches and schools he represented needed the court’s protection because they couldn’t possibly comply with the subpoenas as issued.

Flood said the subpoenas had sent some record-keepers at parishes and schools into a panic.

He said the dioceses aren’t challenging the attorney general’s authority to investigate and to subpoena records, but they want a protective order to limit and define the scope and to set reasonable deadlines.

“It was a ridiculous request,” Flood said of the terms of the subpoenas.

He said it’s going to take a court order for certain records, such as psychiatric evaluations of perpetrators, medical records and settlement agreements, to be turned over.

The evaluations and other medical records are protected by federal privacy laws, McNeil said.

“If the court would order us to turn those records over, we would be happy to do so,” he said. “But we won’t violate federal privacy laws.”

McNeil said confidential agreements with victims also are protected by law.

“That victim expects us to honor that confidentiality agreement, and that’s what we’re going to do, unless ordered otherwise by a court,” he said.

As for the use of initials in records, McNeil said the archdiocese used initials instead of names in correspondence with county attorneys. That’s because sometimes victims don’t want their names to be known, McNeil said. But if county attorneys wanted names, the archdiocese provided them, he said.

When the archdiocese turned over records to the attorney general, the records included correspondence to county attorneys, in which the archdiocese referred to victims by their initials, McNeil said.

No records were altered, he said.

In the hearing, Post said it was disappointing that the dioceses’ attorneys viewed the attorney general’s investigation as government overreach and abuse of power.

He said the fact that most Catholic institutions had complied with the subpoenas was evidence that it was possible to do so.

District Court Judge Lori Maret took the case under advisement. She will issue a ruling later.

The Attorney General’s Office said the court does not have jurisdiction to grant the dioceses’ requests at this point in the proceedings.

If the dioceses don’t comply, Post said, the Attorney General’s Office could seek to have the subpoenas enforced.

That would be the time for the dioceses to raise their objections to the subpoenas, Post said.

In the hearing, the judge challenged Flood and Richard Rice, the attorney for the Lincoln Diocese, to cite case law showing that Post was wrong. Rice said the facts were different in the case cited by the attorney general. Flood said he had submitted cases that showed the court inherently has authority over the administration of justice in its district.

Maret challenged that idea.

”That’s the catch-all that some like to say, that the court’s going to do what they want to do because they have the inherent authority to do anything they want to do,” the judge said. “I still have to follow the law.”

A Lincoln couple who attended the hearing said they hope the attorney general’s investigation leads to justice for all victims.

Kyle and Lauren O’Donnell said they had belonged to several parishes, while growing up and as adults, where priests were removed for sexual abuse of children.

Kyle O’Donnell said he believed Lincoln Bishops Fabian Bruskewitz and James Conley and former Omaha Archbishop Elden Curtiss when they said in the past that they had revealed all abusers and knew of no others, only to find out there were more.

Now O’Donnell, who took off work to attend the hearing, said he doesn’t believe a word of what the dioceses say.

“They lied,” he said. “I’ve supported these guys in the past. … It makes me feel like I almost have a duty to make things right.”