South Dakota's vocational rehabilitation confidentiality law makes it a misdemeanor to disclose information about a person who has applied for or received VR services. Does that statute prevent a VR counselor from testifying under subpoena in a worker's compensation hearing about whether the injured worker could be rehabilitated?
Plain-English summary
The Division of Labor and Management ran worker's compensation hearings that often required a finding of total disability under SDCL 62-4-6(23) and 62-4-7. Total disability under South Dakota law means the worker is unable to work at any income-producing occupation. The Division needed expert vocational testimony to make that finding: someone trained in vocational rehabilitation, who could assess whether the injured worker had the potential to be retrained for some other line of work.
The Division subpoenaed a counselor from the state Department of Vocational Rehabilitation to give that testimony. The VR Department refused, pointing to SDCL 28-9-37, which made unauthorized disclosure of VR client information a Class 2 misdemeanor. Mr. Miller asked AG William Janklow whether the confidentiality statute really blocked compelled testimony.
Janklow read the statute closely. The text forbade soliciting, disclosing, receiving, making use of, or otherwise sharing VR client information "except for purposes directly connected with the administration of the vocational rehabilitation program and in accordance with the division's rules." That language addressed voluntary disclosures, not testimony compelled by a court or administrative subpoena. The standard rule (citing Bell v. Banker's Life) was that confidentiality statutes intended to forbid voluntary disclosures do not also forbid disclosures compelled by lawful subpoena where the information is relevant.
So the counselor could be subpoenaed and required to testify. The Department's blanket refusal to comply was unjustified.
Currency note
This opinion was issued during AG William Janklow's tenure in the 1970s. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SDCL 28-9-37 and the related workers' compensation total-disability provisions have been amended; HIPAA and other federal privacy frameworks now overlay state confidentiality rules and may add their own constraints on subpoenaed health-related information.
What the opinion meant at the time
For workers' comp administrative law judges and attorneys, the opinion confirmed a useful evidentiary path. VR counselor testimony was an important input on whether an injured worker could be retrained for some other occupation. The confidentiality statute did not let the VR Department close that door.
For VR counselors, the opinion clarified their duty: respond to subpoenas, do not refuse on confidentiality grounds when the information is relevant to a pending legal inquiry. The misdemeanor statute did not punish counselors for testimony compelled by lawful process.
For injured workers, the opinion was a mixed result. On one hand, their VR records could be brought into workers' comp proceedings without their consent. On the other hand, the testimony might actually help, particularly if the VR assessment supported a total-disability finding.
Common questions
Q: Was the AG saying SDCL 28-9-37 has no teeth at all?
A: No. The statute still applied to voluntary disclosures (counselor gossip, sale of client lists, sharing with unrelated agencies). It just did not apply to compelled testimony in legal proceedings.
Q: Could the client (the injured worker) move to quash the subpoena?
A: The opinion did not address that. A worker could theoretically argue the testimony was not relevant or that privacy interests outweighed the evidentiary value, but those are general subpoena-quashing arguments, not SDCL 28-9-37 arguments.
Q: Did the AG cite a South Dakota case?
A: No. The supporting citation was an Illinois case (Bell v. Banker's Life, 64 N.E.2d 204 (1945)). South Dakota courts had not directly addressed the question.
Q: What about a counselor's notes or written records, as opposed to testimony?
A: The opinion specifically addressed counselor testimony. By extension, the same reasoning would apply to subpoenaed documents (records, evaluations). A voluntary records release would be barred; a subpoena-compelled production for a relevant legal proceeding would not.
Q: Did this set a precedent for other confidentiality statutes?
A: Yes, indirectly. The voluntary-versus-compelled distinction is a common interpretive move in confidentiality cases. Where a statute punishes "disclosure" without elaborating on what counts as a disclosure, the AG-and-court tradition is to read it as targeting voluntary action and to except compelled-testimony situations.
Background and statutory framework
South Dakota workers' compensation in the 1970s relied on the Division of Labor and Management for hearings, fact-finding, and disability determinations. Total disability was a high bar (inability to work at any income-producing occupation) and required real evidence about the worker's capacity to be retrained.
The VR Department's role was to deliver rehabilitation services to disabled clients, often as part of recovery from workplace injuries. VR counselors developed expertise in assessing client capability. That made them natural witnesses in cases where the central question was the client's capacity for any retrained employment.
The confidentiality framework in SDCL 28-9-37 was modeled on similar statutes in many states, designed to protect VR clients from public exposure and stigma. Its language was broad. But like most such statutes, it was directed at voluntary disclosures, not court-compelled testimony.
The opinion's reasoning aligned with the general structure of state evidentiary privileges: a privilege is normally invoked by or on behalf of the holder, not as a blanket disclosure bar that overrides legal process.
Citations and references
Statutes:
- SDCL 28-9-37 (VR confidentiality; Class 2 misdemeanor)
- SDCL 62-4-6(23) (total disability definition)
- SDCL 62-4-7 (total disability determination)
Cases:
- Bell v. Banker's Life, 64 N.E.2d 204 (Ill. App. 1945) (confidentiality provisions forbid voluntary disclosures, not compelled testimony)
Source
Original opinion text
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 official 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