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THE REGULATION WHICH PROVIDES THAT THE TRANSCRIPTS OF PUBLIC EMPLOYMENT RELATIONS BOARD (PERB) HEARINGS ARE THE PROPERTY OF THE STENOGRAPHER CONFLICTS WITH THE ADMINISTRATIVE PROCEDURE ACT AND THE PUBLIC-ACCESS PRINCIPLES UNDERLYING FOIL (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined the Public Employment Relations Board (PERB) regulation (4 NYCRR 208.3 (c)) which provides that PERB hearing transcripts are the property of the stenographer conflicts with the Administrative Procedure Act and the public-access principles underlying FOIL:

“It is established as a general proposition that a regulation cannot be inconsistent with a statutory scheme” … . Here, 4 NYCRR 208.3 (c) is inconsistent with State Administrative Procedure Act § 302 (2), which imposes a duty on the agency to furnish a copy of the transcript to a party upon request.…  Moreover, it is inconsistent with the statutory scheme of FOIL, which “imposes a broad standard of open disclosure in order to achieve maximum public access to government documents” … . Courts must construe FOIL liberally, to “require[ ] government agencies to make available for public inspection and copying all records” … . Accordingly, Supreme Court improperly granted PERB’s motion to dismiss and we remit the matter to Supreme Court for PERB to file an answer pursuant to CPLR 7804 (f). Matter of DeWolf v Wirenius, 2024 NY Slip Op 03790,, Second Dept 7-11-24

Practice Point: A regulation cannot be inconsistent with a statutory scheme.

 

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