dissenting.
I respectfully dissent. In my view, trial counsel’s performance did not meet prevailing professional norms, and that deficient performance prejudiced petitioner. McKnight v. *251State, 378 S.C. 33, 661 S.E.2d 354 (2008). I would therefore reverse the order which denied petitioner post-conviction relief (PCR).
Petitioner’s PCR claim rests on two instances of allegedly ineffective assistance of counsel: first, trial counsel’s failure to object to Agent Harris’s testimony at trial, and second, his failure to object to the admissibility of the victim’s identification of petitioner both in and out of court, as well as the DNA evidence. Petitioner contends that this evidence was barred by S.C.Code Ann. § 24-21-290 and would have been excluded had trial counsel objected. I agree.
The statute explicitly bars Agent Harris’s trial testimony, as § 24-21-290 renders “information and data obtained in the discharge of his official duty by a probation officer” “not receivable as evidence in a court” unless permission to disclose is granted by the trial judge or the director. No such permission was sought or granted here. It is unclear whether the majority finds Agent Harris’s testimony objectionable since it holds that the statutory terms “information and data” do not include anything observed by the probation agent. Unlike the majority, however, I do not see anything in the statute which exempts “information and data” perceived by the officer’s sense of sight from its ambit. It seems to me that if the statute were intended to create a privilege only as to statements made by the probationer to his agent, it would say just that.
The majority expresses concern that if the statute makes observations privileged, then a probation officer who observed evidence of a crime while conducting a home visit would be prevented from reporting that evidence. However, nothing in the statute prevents such a report as the majority suggests, rather § 24-21-290 simply requires that the probation officer first be “ordered” to disclose the information and/or data by a court or the director, or relay it to “others entitled ... to receive [his] reports----” The statute recognizes that there will be situations where, on balance, the privilege must yield to policy, and provides a mechanism for disclosure. For whatever reason, Agent Harris did not follow that procedure here, and the “information and data” remained privileged. In my view, making the confidences between a probationer and his *252agent presumptively privileged furthers the legislative goal of “fostering open lines of communication.”
Moreover, I am concerned that the majority dismisses any prejudice from Agent Harris’s trial testimony by finding it harmless based on the evidence derived from Agent Harris’s improper disclosure to Inspector Nimau. As explained below, the victim’s photo line-up identification of petitioner and the subsequent DNA testing of his blood were the direct result of Agent Harris’s breach of the statutory privilege, not as the majority holds, “independent from Agent Harris’s disclosure.” The record reveals that after the crime occurred on July 16, the investigating officer put out a “Be On the Lookout” (BOLO) for an individual with cuts on his forearms. The victim was shown two photographic lineups in July, but was unable to identify anyone. The persons included in these lineups were “subjects generated through crime watchers.” Although petitioner was apparently named in a tip to crime watchers, no action was taken on this information until after Inspector Nimau spoke with Agent Harris in early August. “Based on this information, Nimau compiled a third photographic line-up, which he presented to the victim on August 19....” State v. Hutto, Op. No. 2002-UP395 (S.C. Ct.App. filed June 4, 2002). Relying on the victim’s August 19 identification of petitioner, Nimau executed an affidavit relating Harris’s observations and the victim’s subsequent identification in order to obtain a search warrant for a blood sample from petitioner. Id.
The statute not only explicitly bars Agent Harris’s trial testimony, but also bars the disclosure of “all information and data” obtained “directly or indirectly [from him] to anyone other than the judge or others entitled under this chapter to receive reports” absent permission. § 24-21-290. Here, there was no permission sought or granted before Agent Harris was questioned by Investigator Nimau. In my view, the resulting identification by the victim and the DNA evidence found as the result of the warrant issued after her identification is “information and data” obtained indirectly as a result of Agent Harris’s unlawful disclosure to Investigator Nimau, and therefore privileged under § 24-21-290.
*253As we held in State v. Hook, 356 S.C. 421, 590 S.E.2d 25 (2003), the construction of the privilege in § 24-21-290 is a question of legislative intent, not constitutional law. The purpose of the statutory privilege is clear: to encourage an atmosphere in which there is open communication and cooperation between a probationer and his probation agent. The statute expressly states that information and data obtained in the discharge of the agent’s duty is “not receivable as evidence in court,” and thus the evidentiary exclusion arises from the terms of the statute creating the privilege, not the application of the exclusionary rule. To permit information or data obtained directly or indirectly as a result of a violation of the statute to be received as evidence in court defeats the legislative intent in creating this privilege.
Because the statute bars disclosure of' “information and data” without an order of the court or director, whether directly or indirectly, and because the victim’s identification of petitioner in the photo lineup, the DNA evidence, and the victim’s in-court identification were not obtained “independent” of Agent Harris’s unlawful disclosure, I would hold that this evidence cannot be received “as evidence in a court.” Any other ruling, in my view, invites probation officers to violate the statutory privilege by disclosing the information and data to third persons not otherwise entitled to it, without first being “ordered” to do so. Under the interpretation adopted by the majority today, these unauthorized persons are then free to present the evidence in court.
In my view, petitioner was prejudiced by counsel’s deficient performance since had an objection been made it should have been sustained. I would reverse the denial of petitioner’s application for PCR, finding both that counsel’s performance was deficient and that petitioner was prejudiced thereby.