Must NY agencies index every decision where due process requires a hearing, or only decisions where a statute specifically grants the opportunity to be heard?

Subject

SAPA § 307(3)(a)'s 1995 indexing expansion applies only when a statute (not a regulation or due-process consideration) gives parties an opportunity to be heard

Plain-English summary

DHCR was facing a compliance question with cost stakes. Under standard SAPA, an agency must index (catalog by name and subject, make public) all final determinations from adjudicatory proceedings. The 1995 amendment in L 1995 ch 645 expanded the indexing requirement to also cover final determinations "rendered by the agency pursuant to a statute providing any party an opportunity to be heard, other than a rulemaking."

The question was how broad "providing any party an opportunity to be heard" should be read. DHCR's existing practice gave affected parties notice and an opportunity to be heard in many non-adjudicatory proceedings, based either on DHCR regulations or on general due-process considerations, not on specific statutory mandates. If the new SAPA indexing requirement reached all such determinations, DHCR would be forced to index several thousand more decisions per year, at considerable cost.

The AG took the narrower reading: only when a statute (specifically, not a regulation, not generic due process) provides the opportunity to be heard does the indexing requirement attach.

The reasoning was textual and contextual.

Textually, the amendment is clear on its face: indexing is required for determinations "rendered by the agency pursuant to a statute providing any party an opportunity to be heard." The word "statute" anchors the trigger. Where the statute is clear and unambiguous, courts enforce it as written (Lea v Lea, 182 Misc 396 (1944); People ex rel. New York C. & H. R. R. Co. v Woodbury, 208 NY 421 (1913)). The plain reading of "statute" is statute, not regulation and not background due-process principles.

Contextually, the existing SAPA indexing rule already covered all final determinations from adjudicatory proceedings. The 1995 amendment was the legislature adding to that list. The amendment expanded the universe of indexed determinations to include non-adjudicatory determinations where party input was statutorily mandated. Reading "statute" broadly to include regulations and due process would essentially convert "non-adjudicatory" into "adjudicatory" and would dwarf the existing requirement. That kind of dramatic expansion is not signaled by the amendment's text.

The 1985 precedent the AG cited reinforces the narrow reading. L 1985 ch 469 amended SAPA § 401(1) to expand indexing for licensing proceedings, but only where laws "expressly afford an opportunity for a hearing." The Bill Jacket described that 1985 amendment as an "incremental increase" of the scope of proceedings to be indexed. The 1995 amendment fits the same incremental pattern: it expands the indexing universe to a defined statutory category, not to all proceedings where any form of hearing happens.

The practical effect for DHCR: the indexing requirement attaches only to those final determinations issued under a statute that specifically grants parties an opportunity to be heard. DHCR's regulation-based or due-process-based hearings produced determinations that did not have to be indexed under the new requirement, unless the underlying statute also granted the opportunity.

Currency note

This opinion was issued in 1995. 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

What does SAPA indexing actually require?

The agency must maintain an index by name and subject of covered final decisions, determinations, and orders. Each indexed decision (and the text of the underlying decision) must be available for public inspection and copying. Indexing must occur within 60 days of the decision. The point is public access: the index lets researchers, attorneys, and journalists find agency precedents and decisions.

Why was the statutory trigger drawn so narrowly?

To preserve a workable distinction between adjudicatory and non-adjudicatory agency action. Reading the amendment broadly would extend full indexing duties to thousands of routine determinations made with informal hearings, swamping agency record systems and providing little additional public benefit. The legislature instead picked a defined category (statutorily mandated hearings) where the public interest in indexing is presumably stronger.

Does this mean an agency can hide non-statutory hearings from the public?

No. SAPA's open-meeting and public-record requirements apply separately. Individual determinations remain subject to FOIL requests. The indexing requirement is about maintaining a searchable system, not about disclosure generally.

What's an example of a statute that triggers indexing under the amendment?

Any statute that says something like "the [agency] shall hold a hearing on application of any affected party" or "before issuing a [determination], the [agency] shall provide notice and an opportunity to be heard." Statutes that give a specific opportunity-to-be-heard right to specific parties trigger indexing for the resulting determinations.

What about constitutional due process?

The AG declined to treat constitutional due process as a statutory trigger because the SAPA amendment uses the word "statute," not "constitution" or "law." Constitutional due process operates on its own track; SAPA indexing has its own statutory trigger. They are not the same thing.

Statutory framework

State Administrative Procedure Act § 307, as amended by L 1995 ch 645, requires agencies to index by name and subject all written final decisions, determinations, and orders from (1) adjudicatory proceedings and (2) those rendered pursuant to a statute providing any party an opportunity to be heard, other than rulemaking. The index and text must be available for public inspection and copying. Decisions must be indexed within 60 days.

L 1985 ch 469 amended SAPA § 401(1) to add similar indexing for licensing proceedings where laws expressly afford an opportunity for a hearing.

The AG cited Lea v Lea and People ex rel. New York C. & H. R. R. Co. v Woodbury for the proposition that clear and unambiguous statutory text is enforced as written.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/95-F8_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Opn. No. 95-F8
STATE ADMINISTRATIVE PROCEDURE ACT, ART 3, § 307; L 1995 CH 645; L 1985 CH 469

As amended by L 1995 ch 645, section 307(3)(a)'s indexing requirements are now expanded to include those final determinations that arise out of a statute specifically providing affected parties with an opportunity to be heard.

December 7, 1995

Leslie R. Byrd, Esq.
General Counsel
New York State Division
of Housing and Community Renewal
One Fordham Plaza
Bronx, New York 10458

Formal Opinion
No. 95-F8

Dear Ms. Byrd:

You have requested a formal opinion from this office as to how the New York State Division of Housing and Community Renewal (DHCR) should interpret the Legislature's 1995 amendment to State Administrative Procedure Act (SAPA) Article 3. Specifically, you ask whether section 307's expanded indexing requirements will hereafter mandate the indexing of all written final determinations in which DHCR has provided affected parties with an "opportunity to be heard," or whether the scope of chapter 645 of the Laws of 1995 is limited to those determinations that arise out of a statute specifically providing affected parties with an opportunity to be heard. We understand you are concerned that, by implementing an unnecessarily expansive reading of chapter 645, DHCR will index several thousand more determinations annually than is actually required by amended SAPA § 307(3)(a), all at considerable cost to the agency.

We have concluded that unless an explicit statutory "opportunity to be heard" requirement is present, the new indexing requirements of section 307(3)(a) will not be triggered. As amended, section 307(3)(a) provides that

Each agency shall maintain an index by name and subject of all written final decisions, determinations and orders emanating from adjudicatory proceedings. For purposes of this subdivision, such index shall also include by name and subject all written final decisions, determinations and orders rendered by the agency pursuant to a statute providing any party an opportunity to be heard, other than a rulemaking. Such index and the text of any such written final decision, determination or order shall be available for public inspection and copying. Each decision, determination and order shall be indexed within sixty days after having been rendered.

SAPA § 307(3)(a), as amended by L 1995, ch 645. Emphasis added. Current DHCR policy, based upon what you describe as either "regulation [or] due process considerations," provides affected parties with notice and an opportunity to be heard in a variety of non-adjudicatory proceedings. You explain that this policy is based upon provisions of DHCR's general enabling statutes, none of which specifically provide a party with an opportunity to be heard. In these instances, you inquire whether the amendment to SAPA requires indexing.

In our view, the amendment is clear on its face in requiring indexing as to determinations, decisions and orders in which "a statute [has provided] any party with an opportunity to be heard." A specific statutory authorization for party input initiates the indexing requirement. See, Lea v Lea, 182 Misc 396 (1944) (where a statute is clear and unambiguous, the law must be construed and enforced as written); see also, People ex rel. New York C. & H. R. R. Co. v Woodbury, 208 NY 421 (1913) (where the words of a statute are clear and without ambiguity, attempts at construction are superfluous).

An understanding of the context in which the amendment was designed is a further indication that the Legislature meant precisely what it said. All final determinations arising out of adjudicatory proceedings are covered by SAPA's indexing requirement, not only those in which notice or an opportunity to be heard is required by statute. See, SAPA § 307. Consequently, meaning should be given to the language of the 1995 amendment when it adds to the list of final determinations to be indexed only those non-adjudicatory determinations where a statute provides for party input.

We note that the Legislature previously has expanded SAPA's indexing requirements in a comparable manner. In 1985, the Legislature provided that, with respect to licensing proceedings, laws which expressly afford an opportunity for a hearing are deemed to be subject to indexing requirements. See, L 1985 ch 469, amending SAPA § 401(1). This 1985 amendment was designed to be an incremental increase of the scope of proceedings required to be indexed. See, Bill Jacket, L 1985 ch 469. Amended section 307(3)(a) is another such incremental increase. We, therefore, conclude that under section 307(3)(a), DHCR is only required to index those final determinations that arise out of a statute specifically providing affected parties with an opportunity to be heard.

Sincerely,

Dennis C. Vacco
Attorney General