Request By:
Honorable James E. McDaniel
Commonwealth Attorney
Sixth Judicial District
Courthouse
Owensboro, Kentucky 42301
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 10 in which you, on behalf of the Chief of the Fire Department of the city of Owensboro, request an opinion as to whether or not the chief has the authority under KRS 95.500 to subpoena written records in connection with his investigation of an arson related fire.
KRS 95.500(1), in referring to the powers and duties of the chief of the fire department, provides that:
". . . He may examine witnesses, compel the production of testimony, administer oaths, make arrests, and enter any building for the purpose of examination that, in his opinion, is in danger from fires. . . ."
The above statute clearly authorizes the chief of the fire department to require the attendance of witnesses by subpoena for the purpose of testifying, however, the statute does not mention the production of records. The case of Sutton v. Commonwealth, 207 Ky. 597, 269 S.W. 754 (1925), defines the term "testimony" as "The statement made by a witness under oath or affirmation." A subpoena requiring the testimony of witnesses is called a subpoena ad testificandum and is distinished from a subpoena requiring the production of records which is known as a subpoena duces tecum. In 97 CJS, Witnesses, § 22, the rule is expressed that the right to issue subpoenas is limited to such persons as are empowered by the statute, ordinarily an officer of the court or a responsible official, and with respect to the type of subpoena that such officer is empowered to issue, we refer you to § 25, from which we quote the following:
"An administrative officer or agency may be authorized by statute to issue subpoenas in connection with matters under investigation, but where no such authority is conferred by statute, a court has no jurisdiction to issue a subpoena duces tecum for the production of records at an administrative hearing. . . ."
It would thus appear that in view of the language of KRS 95.500, the legislature has, in effect, limited the subpoena power of the chief of the fire department to the production of testimony by witnesses called pursuant thereto. As a consequence, the chief has no authority to issue what is known as a subpoena duces tecum to require in addition, the production of records that may be at the disposal of the witness.