Request By:
Mr. George, L. Atkins
Auditor of Public Accounts
Room 170, Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: James S. Goldberg, Assistant Attorney General
This letter is in response to your correspondence of July 20, 1977, in which you have asked this Office for an opinion as to whether your position as Auditor of Public Accounts permits you, under KRS 43.080, to lawfully subpoena the construction plans and documents concerning the breakdown of the $3.4 million initial purchase price involved in the June 7, 1977 lease contract between B.T.J., Inc. and the Commonwealth of Kentucky. You indicate that your Office issued a subpoena, pursuant to KRS 43.080, to Dr. Sutterlin, a stockholder of B.T.J., Inc., requesting these documents, but that Dr. Sutterlin has thus far refused to honor it.
In that regard, KRS 43.080 states as follows:
"(1) The auditor and his authorized agents shall have access to and may examine all books, accounts, reports, vouchers, correspondence files, records, money and property of any state agency. Every officer or employe of any such agency having such records or property in his possession or under his control shall permit access to and examination of them upon the request of the auditor or any agent authorized by him to make such request.
(2) The auditor and his assistants shall have access at all times to the papers, books and records of the asylums, prisons, feeble-minded and eleemosynary institutions, and public works that he is authorized to examine, and of any county officer who receives or disburses county funds.
(3) The auditor may require information on oath from any person touching any matters relative to any account that the auditor is required to state, audit or settle. The auditor may administer the oath himself, or have it done by any officer authorized to administer an oath.
(4) The auditor and his assistants may issue process and compel the attendance of witnesses before them, and administer oaths and compel witnesses to testify in any of the investigations the auditor is authorized to make."
Section one of KRS 43.080 would only permit your Office to subpoena all relevant documents that are actually in the state's possession. As you have stated in your letter, no state agency has possession of the documents you are seeking. Therefore, since these documents are not in the state's possession, Section one is clearly not applicable to the present situation.
Sections three and four of KRS 43.080 would permit your Office to issue process and compel the personal attendance of Dr. Sutterlin, to administer an oath to him and to compel him to testify about any information he may possess, in any investigation that the Auditor of Public Accounts is authorized to make. However, we do not think that these two sections would permit your Office to lawfully subpoena the construction plans or the documents concerning the breakdown of the $3.4 million initial purchase price, in either Dr. Sutterlin's or any other private individual's possession.
We hope that this opinion will satisfactorily answer your question. If we can be of any further service, please do not hesitate to call upon us.