Request By:
Richard Boling, Commonwealth's Attorney
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Opinion of the Attorney General
Richard Boling, Commonwealth's Attorney for the Third Judicial District, has asked this office for an opinion as to whether the Commonwealth of Kentucky, by and through the Office of the Commonwealth's Attorney, can be required to pay for copies of records obtained through a subpoena. For the reasons that follow, we conclude that for legal and public policy reasons, the Commonwealth's Attorney cannot be required to pay a non-party entity for time and expenses incurred in producing records in compliance with a subpoena.
In his opinion request, Mr. Boling explained that his office commonly subpoenas records from non-party entities, such as banks, hospitals, cellular phone companies, medical providers, and utility companies. He stated that one such entity had imposed charges of $ 35 for up to 7 days and $ 5 per day, for each day thereafter. He indicated that the subpoena specifically provided that the subpoenaed items are to be provided to the Commonwealth of Kentucky of Kentucky without cost. However, the entity has been sending bills and has been contacting his office regarding payment of the bills. These facts raise the question at issue here.
In OAG 79-336, Norton-Children's Hospital asked this office whether the Commonwealth Attorney's office could be required to pay the hospital for medical records subpoenaed in its criminal cases. The Attorney General opined that the Commonwealth was not required to pay witness fees and expenses to witnesses for compliance to a subpoena in criminal prosecutions, since the right of a witness to compensation is purely statutory and Kentucky had no statute authorizing such compensation. In reaching this conclusion, he noted the general rule that witnesses owed a public duty to the state to aid in the administration of government and may be compelled to appear and testify even though no provision for compensation was authorized. Stating that this general rule had been upheld by the United States Supreme Court, he quoted the following language from Hurtado v. United States, 410 U.S. 578, 589, 93 S. Ct. 1157, 35 L. Ed. 2d 508 (1973):
But the Fifth Amendment does not require that the government pay for the performance of a public duty it is already owed. [Citations omitted.] It is beyond dispute that there is in fact a public obligation to provide evidence, [Citations omitted] and that this obligation persists no matter how financially burdensome it may be ? It is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the government is bound to perform upon being summoned, and for performance of which he is entitled to no further compensation than that which the statute provides. The personal sacrifice involved is a necessary contribution of the individual to the welfare of the public. Blair v. United States, 250 U.S. 273, 39 S. Ct. 468, 63 L. Ed. 979 (1919).
Likewise, the Kentucky Court of Appeals, in Branzburg v. Meigs, Ky., 503 S.W.2d 748 (1971), citing Blair v. United States, supra, recognized that attendance before grand juries in answer to a subpoena is a public duty which every person is bound to perform and that the personal sacrifice involved is a part of the necessary contribution to the welfare of the public.
There is no statute that provides for or requires payment by the Commonwealth, by and through the Office of the Commonwealth's Attorney, for expenses associated with compliance with a subpoena to produce records. The Commonwealth never becomes indebted by implication. Commonwealth v. Allen, 235 Ky. 728, 32 S.W.2d 42, 43 (1930). Accordingly, we conclude that the Commonwealth's Attorney cannot be required to pay for copies of records obtained through a subpoena. OAG 79-336.
We believe that a non-party entity's compliance with the Commonwealth's Attorney's subpoena to produce records would be part of its public duty in the public interest to comply and would be incidental to its ordinary cost of doing business. A non-party entity, such as a bank, whose business is the facilitation of financial transactions, and which keeps records of all customer dealings as a matter of course, if not law, as a part of the cost of doing business, may be required to make an unreimbursed records search in compliance to a subpoena. See United States v. Covington Trust & Banking Co., 431 F.Supp. 352 (E.D. Ky. 1977).
If the non-party entity believes that compliance with the subpoena would be unreasonable, onerous, or beyond the ordinary course and cost of doing business, it may, by motion, seek relief by asking the court to quash or modify the subpoena, pursuant to RCr 7.02(3), or may consult with the Commonwealth's Attorney and the Prosecutor's Advisory Counsel to determine if an accommodation as to the cost of compliance can be reached.
This is not to suggest, however, that an entity served with a subpoena may condition its decision to comply with the subpoena on whether or not its costs of production will be reimbursed. Failure to obey a subpoena, without adequate excuse, shall be punishable as a contempt of court. RCr. 7.02(7).