(dissenting).
[¶ 43.] “Records prepared or maintained by court services officers are confi-*686dentiál.” SDCL 23A-27-47. Here, a rule of criminal procedure is being used improperly to obtain discovery in a civil action. Title 23A governs “the procedure to be used in the courts of this state in all criminal proceedings.... ” SDCL 23A-1-1 (emphasis added). The physical location of SDCL 23A-27-47 in the chapter dealing with criminal procedure is no mere happenstance. The Legislature clearly intended it to be there, as evidenced by its 1994 enactment: “That chapter 23A-27 be amended by adding thereto a NEW SECTION to read as follows.... ” South Dakota Session Laws 1994, ch 217, § 2.
[¶ 44.] Rules regarding criminal procedure are not applicable to civil procedure. In the absence of a statute authorizing their release, these confidential records are not subject to civil discovery. If the Legislature wanted to authorize disclosure in noncriminal matters, it knew how to declare when a statute should apply to both criminal and civil proceedings. See, e.g., SDCL 15-14-4. The only exception is provided in SDCL 23A-27-47 itself: “However, such records may be inspected by, or disclosed to, justices, judges, magistrates, and employees of the unified judicial system in the course of their duties and to persons specifically authorized by order of the court.” This list can be expanded to include others not named so long as they obtain a court order, but the purpose for release must be related to “criminal proceedings,” as that is all the statute encompasses. SDCL 23A-1-1.
[¶ 45.] Lastly, if these confidential materials are now going to be discoverable in civil suits, then I think it incumbent on the majority to give courts some guidance on the timing and manner of their release. Leaving it to pure discretion will create inconsistency and conflict. The case of E.P. v. Riley, 1999 SD 163, 604 N.W.2d 7 provides no authority here since, as the majority seems to acknowledge, it is dicta because the DSS records in that case were turned over without objection. Analogously, in dealing with the release of secret grand jury records, the United States Supreme Court held that these materials may be breached only when (1) they are needed to avoid a possible injustice in another judicial proceeding; (2) the need for disclosure is greater than the necessity for continued confidentiality; and (3) the request is structured to cover only needed materials. Douglas Oil v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). The probation records should not be released at all, but if they are going to be released, then these three criteria should serve as guides.