January 9, 1978

Mr. William Miller, Director 
Division of Labor and Management 
Department of Labor 
Pierre, South Dakota 57501

Official Opinion No. 78-4

Disclosures under § 28-9-37

Dear Mr. Miller:

You have requested an opinion from this office based upon the following factual situation:

FACTS: 

The Division of Labor and Management in the course of its conducting worker's compensation hearings must determine the nature and extent of an employee's disability relative to a work related injury.  Often included in the disability question is a determination of total disability as defined in SDCL § §  62-4-6(23) and 62-4-7.  To make that determination requires a finding, on the part of this Division, that the employee is totally incapacitated from working at any occupation which brings him an income.  To make that finding this Division has requested the testimony of a Vocational Rehabilitation counselor pursuant to a subpoena.  In resistance to that subpoena the Department of Vocational Rehabilitation cites SDCL 28-9-37 as a prohibition to the desired testimony.

Based on the above factual situation, you have asked the following question:

QUESTION: 

Does SDCL 28-9-37 prevent or prohibit a counselor of the Department of Vocational Rehabilitation from testifying and providing relevant information under oath, pursuant to a subpoena issued by the Division of Labor and Management, relative to that counselor's findings regarding an employee's potential or inability to be benefited by training through a vocational rehabilitation program of the Department of Vocational Rehabilitation, as such findings relate to the question of total disability, a determination which must be made by the Division of Labor and Management?

SDCL 28-9-37 provides: 

It shall be a Class 2 misdemeanor, except for purposes directly connected with the administration of the vocational rehabilitation program and in accordance with the division's rules, for any person to solicit, disclose, receive, make use of, authorize, knowingly permit, participate in, or acquiesce in the use of, any list of, names of, or information concerning, persons applying for or receiving vocational rehabilitation services, whether directly or indirectly derived from the records, papers, files, or communications of the state or subdivisions or agencies thereof, or acquired in the course of the performance of official duties.

It is my opinion that the above-cited provisions of SDCL 28-9-37 are intended to forbid voluntary disclosures, but are not intended to prevent disclosures of contents of offical documents under compulsion of a subpoena where it is pertinent to a legal inquiry. See Bell v. Banker's Life, 64 N.E.2d 204 (1945).

The answer to your question, therefore, is no. SDCL 28-9-37 does not prevent or prohibit a counselor of the Department of Vocational Rehabilitation from testifying and providing relevant information under oath in a legal inquiry pursuant to a subpoena issued by the Division of Labor and Management Relations.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:DOC:jo