FIFTH
DISTRICT COURT OF APPEALS
STATE EX REL. BETH ROCKER, : Case No. 09-CA-4
RELATOR’S
BRIEF IN
v.
:
RESPONSE TO COURT’S
JUDGMENT
ENTRY
OFFICE
Respondent.
________________________________________________________________________
Now comes Relator Beth Rocker (“Relator”), by and
through counsel, and provides this brief in response to this Court’s Judgment
Entry dated
THIS COURT IS IGNORING THE MANDATE OF THE
This case
originated with a public records request to Respondent relating to the
investigation of a priest named Zalenski. Respondent refused to provide the
requested documents, raising only one justification: the uncharged-suspect exception
to public records law. Relator filed this action in this Court, and this Court agreed
with Respondent that the records are not subject to disclosure. This Court's
rationale was based solely on the uncharged-suspect exception. Relator appealed
to the Ohio Supreme Court, and the Ohio Supreme Court reversed. Three months
ago, the Ohio Supreme Court issued a very specific mandate to this Court,
ordering that this Court disclose the records "following the redaction of
those portions of the record that are subject to the uncharged-suspect exemption..."
This Court is now attempting to open up a new can of
worms. Despite the fact that Respondent has never raised any other exception to
the public records law, and despite the fact that Zalenski has never intervened
in this action to assert any alleged privileges, this Court is now sua sponte seeking a new basis for
refusing to disclose the records. This diversion is beyond the authority of
this Court because it is a direct violation of the mandate of the Ohio Supreme
Court.
The records must be produced in accordance with the
mandate, redacted only to comply with the uncharged-suspect exception.
THE RECORDS
DO NOT SATISFY THE “MEDICAL RECORDS” EXCEPTION
Even if there were some legitimate reason to analyze
the medical records exception at this point, the records within the Court’s
possession are probably not subject to it. The Court has given absolutely no
description of the documents to which it refers, seriously handicapping Relator’s
ability to analyze the applicability of the exception. However, counsel is familiar
with similar records found in priest personnel files in the past. In those
situations, the priest has waived any physician-patient privilege by
authorizing his medical providers to release records to his employer, the
church. Thus, if the Court has psychological reports written to the church to
establish whether Zalenski is fit to perform his duties, then any
physician-patient privilege has been waived.
R.C. 149.43(A)(3) defines “medical record” as a
document which “is generated and maintained in the process of medical
treatment.” For example, where an employer “obtains the report of a
psychologist in order to assist it in the decision-making process concerning an
employee’s future employment, the report was not ‘maintained in the process of
medical treatment’ and must be disclosed.” State
ex rel. Toledo Blade Co. v. Telb, Sheriff (1990), 50
It is difficult to speculate about any situation in
which Zalenski did not waive his physician-patient privilege, yet the records
still somehow found their way into the hands of Zalenski's employer or Respondent’s
investigators. Respondent did not likely subpoena records directly from the
medical providers. Rather, the records most likely were provided to Respondent
by either Zalenski himself or his employer. In both cases, the privilege was
waived and the records were not “generated and maintained in the process of
medical treatment.”
Accordingly, the records are not likely subject to any
medical records exception. If the Court believes that they are, then Relator demands
more specific information regarding the nature of the records so that she may
have a fair opportunity to address the Court's concern. Clearly, Relator has
been denied that opportunity with this Court's cursory Entry of
Respectfully submitted,
Konrad Kircher (0059249)
Michael F. Arnold (0076777)
KIRCHER
ARNOLD & DAME, LLC
Tel. (513) 229-7996
Fax (513) 229-7995
Attorneys for Relator
CERTIFICATE
OF SERVICE
I
hereby certify that a true copy of the foregoing Brief was served upon Daniel Padden, Esq., 139 Court House Square, P.O. Box 640, Cambridge, Ohio 43725-0640 this ____ day of October, 2010.
Konrad
Kircher
The allegation was brought to the Diocese of Steubenville by a woman who was a young parishioner at Saints Peter and Paul Parish in Lore City, Ohio, where Father Zalenski was pastor at the time. All information about the matter obtained by the diocese has been communicated to the Guernsey County Prosecutor.
The matter will be referred to the Congregation for the Doctrine of the Faith, an office of the Holy See in Rome, for further action. This could take some time. In the meantime, Gary Zalenski will remain a priest of the Diocese of Steubenville, and the diocese will provide material assistance to him as needed.
This matter is being handled in full accord with the “Charter for the Protection of Children and Young People”, which was adopted by the Catholic bishops of the United States in 2002, the “Essential Norms”, which are special laws approved by the Pope for the United States to deal with child abuse, and the Diocese of Steubenville’s “Decree on Child Protection”.
As for Sacred Heart Parish in Neffs, I have appointed Monsignor Gene Mullett as Temporary Administrator, along with his other duties, and have asked him to provide special pastoral care to the people in this difficult moment. The long-term future of the parish will be considered along with all the other parishes in the Presentation Deanery as part of the ongoing planning process. It is hoped that a plan will be finalized by next spring.
This is all very painful. I am angered that a young member of the Church was apparently violated. I am embarrassed that the offender was a brother priest. I am troubled that absolute certainty about the matter is probably beyond my reach, and yet I must act. I grieve that two parishes and two families are thrown into turmoil.
In such a situation I look to Jesus on the cross. He took our sins and our brokenness upon himself and became the source of our healing.
Any person who has been sexually assaulted as a minor by a priest or other representative of the Diocese of Steubenville is encouraged to contact the diocese at 740-282-3631 as well as any local law enforcement agency.