STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
January 24, 1973
Dr. Don Barnhart
State Superintendent of Public Instruction
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 73-03
Pupil-counselor privilege law, (SDCL 19-2-5.1) interpreted.
Dear Dr. Barnhart:
In connection with SDCL 19-2-5.1, you have submitted the following questions:
1. How restrictive is the term "may divulge to any other person," as contained in said statute?
2. Does the term "any other person" prohibit the counselor from visiting with school administrators, parents, clergymen, and so forth, about problems they have detected about a student while in the counseling process?
3. Can students who are minors effectively waive the privilege in writing?
The statute in question, Chapter 131 of the Session Laws of 1972 for convenience, has been denominated as SDCL 19-2-5.1, reads as follows:
No counselor, certificated in accordance with the certification regulation of the state board of education and regularly employed as counselor for a private or public elementary or secondary school or school system in the state of South Dakota, may divulge to any other person, or be examined concerning any information or communication given to him in his official capacity by a student unless:
(1) This privilege is waived in writing by the student; or
(2) The information or communication was made to the counselor for the express purpose of being communicated or of being made public.
It was enacted by our Legislature under the following title:
AN ACT, Entitled, An Act relating to the establishment of privileged communications and information when given to a school counselor by a student.
There is no question that the purpose of such statute is to extend the doctrine of "privileged communications" into a field not theretofore considered privileged. For that reason some consideration of the law in relationship to privileged communications must be considered before approaching the questions you have propounded.
Certain privileged communications were developed in the common law; others are the result of statute. All are based upon the theory that public policy is best served by the sealing of the lips of a person from divulging information received from another. All examples of privileged communications have one common basis. First, public policy, and second, for the protection of some designated person.
Because of the language used in SDCL 19-21-5.1, there can be no question that the purpose is to protect the student:, not the counselor. For that reason the only person that may waive the privilege is the student, or perhaps if he is deceased, his personal representative for the protection of interests they claim under him. For a full discussion of this principle, you are referred to Olson v. Court of Honor (1907) 100 Minn. 117, 110 N.W. 374, 8 IRA (NS) 521, 117 Am. St. Rep. 676. 10 Ann. Cas. 622. This case discussed the patient-physician confidential relationship under a statute similarly worded to the one under consideration. It is typical of the cases in this relationship as those appertaining to the attorney-client, clergyman and parishioner, and other confidential relationships.
This statute seals the lips of the counselor from divulging any information he receives as sur.h unless the person protected by the statute (the student) waives the privilege created by the statute in writing, or such information or communication was made for the express purpose of being communicated to the public. With the purpose of such statutory provision in mind, your questions are easily answerable.
QUESTION 1. The term "may divulge to any other person" must be most restrictively construed. The statute was enacted for the benefit of the student. The counselor has no right save to follow the admonition of the statute and tto refuse to divulge any information or communication received from the student, to any other person, unless such was received with the express purpose of the student that such be made public, or the student, in writing, waives the benefit accorded him by the statute.
QUESTION 2. This must be answered YES. The statute makes no exceptions, but rather seals the lips of the counselor to "any other person." The privilege of the statute, of course, may be waived by the student, in writing, or does not exist in any event if such information or communication was made for the purpose of being publicly disseminated, and such purpose is made known to the counselor by the student at the time it is received.
QUESTION 3. I can give no categorical YES or NO answer to this question.
In the ordinary case as the privilege created by the statute is for the benefit of the student, and the Legislature has directed that such student may in writing waive the privilege granted by the statute, the student, even though he be a minor, has the right, if he understands the provisions of the statute, his rights thereunder, and understands the nature of his act in waiving such privilege, to waive the privilege in writing. He is not required to wait until his adulthood to exercise his statutory right of waiver. However, in view of the jaundiced eye that the courts of late have cast upon the waiver of rights by infants, in the absence of counselor parental guidance, and especially in the field of criminal law, it is my opinion that if the information or communication in any manner tends to connect the pupil with the commission of a crime or evidencing the fact that he is a juvenile delinquent or dependent, it is my best suggestion that the counselor should not rely upon the waiver of the statutory privilege in writing made by the pupil alone. Rather, such written waiver should be required to be executed after the pupil has been properly advised by an attorney or his parent of the nature and consequences of such act of waiver.
Respectfully submitted,
Kermit A. Sande
Attorney General
