Monday, October 29, 2007

S.C. Court of Appeals gives narrow interpretation to privileged information received by probation officer

In Hutto v. State, Hutto challenged on PCR his counsel's ineffectiveness for failing to move to suppress the evidence presented against Hutto on the basis of an improper disclosure by a probation agent. At base, Hutto's agent noticed cuts on his hands during a routine visit and then reported this after seeing a "be on the lookout" for a man meeting Hutto's description who also had lacerations on the hands and arms. The relevant statute reads as follows:

"All information and data obtained in the discharge of his official duty by a probation agent is privileged information, is not receivable as evidence in a court, and may not be disclosed directly or indirectly to anyone other than the judge or others entitled under this chapter to receive reports unless ordered by the court or the director." S.C. Code Ann. § 24-21-290 (2007).

The Court of Appeals took a narrow interpretation of the statute:

We hold that Harris’s observations of Hutto’s scratches do not constitute the kind of information or data considered privileged under section 24-21-290. The statute’s title indicates that for information or data to be privileged under section 24-21-290, it must be “received” by a probation agent. Black’s Law Dictionary defines the word “receive” as to “take into possession and control; accept custody of.” 1433 (4th ed. 1968). This definition infers a transfer or transmission. We find that Hutto has failed to show how Harris “received” information or data by merely observing the wounds on Hutto’s hands and arms. We believe this interpretation is in keeping with the legislative intent and would not undermine the statute’s purpose.

Seems like to me the natural language of the text would prohibit the disclosure. The probation officer received information when he observed Hutto's wounds during an official visit. To me, that was data obtained in the discharge of his official duties. I think the Court simply got this one wrong as they tried to reach "the right" result. I'd petition for cert on this one.

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