Could a bank or hospital bill a Kentucky prosecutor for records produced under a criminal subpoena?

Plain-English summary

A Commonwealth’s Attorney asked whether a nonparty business could charge his office for records produced under a criminal subpoena. The Attorney General concluded that the prosecutor could not be required to pay those ordinary production expenses. Kentucky had no statute authorizing that reimbursement, and the opinion described supplying evidence under subpoena as a public duty.

The opinion did not leave a recipient without a response to an unusually burdensome demand. It said a nonparty could ask the court to quash or modify an unreasonable subpoena or discuss a cost accommodation with the prosecutor and the Prosecutor’s Advisory Counsel. It also warned that the recipient could not condition compliance on reimbursement; disobeying a subpoena without adequate excuse could be punished as contempt.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a bank charge the prosecutor for routine records it produced under subpoena? A: The Attorney General said the Commonwealth’s Attorney could not be required to pay a nonparty for ordinary records-search and copying costs.

Q: What if complying with the subpoena was unusually onerous? A: The opinion said the recipient could seek a court order quashing or modifying the subpoena, or discuss a cost accommodation with prosecution officials.

Q: Could the recipient withhold the records until the prosecutor paid? A: No. The opinion said payment could not be made a condition of compliance and noted the contempt consequence for disobedience without adequate excuse.

Background and statutory framework

The opinion followed OAG 79-336 and distinguished specific statutes that paid some witness travel expenses from a general right to reimbursement for records production. It cited the criminal subpoena rule’s provisions for modifying a burdensome subpoena and for contempt when a subpoena was disobeyed without adequate excuse.

Citations and references

Statutes: KRS 421.015; KRS 421.030.

Criminal rules: RCr 7.02(3); RCr 7.02(7).

Prior AG opinion: OAG 79-336.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_a2a62b0e-d8e4-4b3b-aba2-6c03196bb56e/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_a2a62b0e-d8e4-4b3b-aba2-6c03196bb56e

Original opinion text

OAG 04-008
July 29, 2004
Subject:

Whether the Commonwealth of Kentucky, by and through the Office of the Commonwealth’s Attorney, can be required to pay for the time and expense incurred in producing records in compliance with a subpoena.

Requested by:

Richard Boling, Commonwealth’s Attorney

Written by:

James M. Ringo

Syllabus:
required

The Office of Commonwealth’s Attorney cannot be to reimburse a non-party entity for copies of records produced in compliance with a subpoena.

Statutes construed:
OAGs cited:

KRS 421.015; 421.030; RCr 7.02(3); RCr 7.02(7)

OAG 79-336

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.

OAG 04-008
Page 2

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

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Page 3

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.1 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 1

Compare this with statutes in which the legislature has authorized payment of

witness expenses by the Commonwealth. KRS 421.015 provides that a witness who resides in a county other than that to which he is subpoenaed shall be allowed mileage for his attendance. KRS 421.030 provides that a Commonwealth’s witness in a felony case who resides in another state shall be allowed his necessary expenses in addition to the per diem, after the court has entered an order that the witness’s testimony is material to the state. The expense and per diem shall be allowed by the circuit court and certified by the circuit clerk for payment.

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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).

Gregory D. Stumbo
Attorney General

James M. Ringo
Assistant Attorney General