Before Judges Havey, P.g. Levy and Lesemann.
The opinion of the court was delivered by: Havey, P.j.a.d.
 Submitted October 5, 1998
On appeal from Superior Court of New Jersey, Law Division, Essex County.
By leave granted, plaintiffs appeal from an order entered in the Law Division denying their demand for the production of documents contained in the personnel files of defendant Michael Campanalongo, a former Catholic priest, in the possession of defendant Archdiocese of Newark.
These consolidated actions involve the claimed sexual molestation of plaintiffs Thomas Corsie and Michael Corsie, brothers, by Campanalongo. The alleged incidents are claimed to have occurred during the years 1967 through 1969. At the time, Campanalongo was assigned to St. Anthony's Roman Catholic Church (St. Anthony's) in Northvale. St. Anthony's is within the jurisdiction of the Archdiocese of Newark. Plaintiffs' complaint alleges that Campanalongo *fn1 sexually molested and assaulted them during the pertinent time period, and that defendants St. Anthony's, Monsignor James Johnson, Archbishop Thomas Boland, and the Archdiocese failed to protect plaintiffs from being harmed by Campanalongo. Specifically, against the church defendants, plaintiffs allege negligent supervision, failure to establish reasonable guidelines in the selection of priests, negligent entrustment and fraud.
Plaintiff Michael Corsie moved to take the oral deposition of Monsignor Johnson, Monsignor Paul Bootkoski, the current Vicar for Priests, the Custodian of Records for the Archdiocese, and all persons who served as Vicar for Priests for the Archdiocese since 1965. Plaintiffs also requested that the church defendants produce all documents contained in the file of the Vicar for Priests, and other files relating to Campanalongo, all files regarding sexual misconduct by any priest from 1960 to present, and any documents regarding any law suit arising from sexual misconduct.
Defendants moved for a protective order precluding the depositions and disclosure of the documents demanded. They raised several privileges, including the cleric-penitent privilege, and the Free Exercise Clause of the First Amendment, which defendants argued protected internal communications of a religious organization from disclosure.
Plaintiffs moved for the production of the documents in question and, in the alternative, for an in camera review by the Law Division Judge of the documents claimed to be privileged by defendants. In response, the church defendants produced the certification of Bishop Bootkoski, the current Vicar for Priests, and a "privilege log" consisting of correspondence and documents in the files of the church and Archdiocese dated from 1962 through 1996. In his certification, Bishop Bootkoski explained that there are approximately 750 individual files "that comprise the universe of files that I maintain as the Vicar for Priests," that there are "twelve files in which a sexual impropriety of any nature whatsoever on the part of any priest has been alleged," and that "[t]here is no allegation of any sexual impropriety of any nature by any priest in any of above files that was received earlier [than] the mid 1980's." He also stated that "[t]here are no documents in my file relating to [Campanalongo] dated from July 1965 to February 1973." Bishop Bootkoski produced for his counsel the twelve files concerning alleged sexual misconduct.
In his certification, Bishop Bootkoski also explained his function as the Vicar for Priests. He asserted that the Vicar files "are of a confidential nature of the highest order," because:
The Vicar for Priests serves as a confidant to priests in need. Accordingly, priests who confide in the Vicar for Priests do so with an expectation of privacy and confidentiality. The relationship is the same as a confessional matter with any other penitent. Through the Vicar for Priests, priests in distress seek counsel and support regarding matters related to the stresses and tension involved in Ministry. Bishop Bootkoski certified that he cannot produce the privileged documents held in his role as Vicar to anyone other than another Vicar because:
such a production would completely undermine the function of the Vicar for Priests for all present and future priests as they could never rely on the confidentiality of their consultations with the Vicar.
The church defendants also submitted the certification of Sister Thomas Mary Salerno, Custodian of the Records for the Archdiocese. Sister Salerno identified three files pertaining to Campanalongo: an assignment file, the file maintained by the Vicar for Priests, and a personnel file. She states that since 1973, there are no materials in the file pertaining to Campanalongo.
On appeal, plaintiffs seek "production of documents relative to [Campanalongo] only. . . . [The plaintiffs'] request goes only to the parties to this action and not to any arguably innocent third parties." We assume from this stipulation that plaintiffs do not seek disclosure of documents pertinent to other priests. We therefore limit our Discussion respecting application of the pertinent privileges as they pertain to information in the church defendants' files relating to Campanalongo.
The first issue is whether any correspondence or any communications in the files of the Vicar for Priests is protected by the "cleric-penitent" privilege. The cleric-penitent privilege is ...