L.B. v. New York City Department of Education

S.D. New York

L.B. v. New York City Department of Education

DecidedFebruary 4, 2022

Docket1:21-cv-01033

StatusUnknown

This text of L.B. v. New York City Department of Education (L.B. v. New York City Department of Education) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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L.B. v. New York City Department of Education, (S.D.N.Y. 2022).

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CNDUROCU ELECTRONI Song ELECTRONICALLY FIL: he DEAS. DOC #: I □□□ DATE FILED: □□□□□□ od) 7 (ea eh :_02/04/2022 Bula □□ or

THE City oF NEW YORK GEORGIA M. PESTANA LAW DEPARTMENT Jeffrey S. Dantowitz Corporation Counsel 100 CHURCH STREET phone: (212) 356-0876 NEW YORK, NY 10007 jdantowi@law.nyc.gov

August 13, 2021

BY ECF Honorable Valerie E. Caproni United States District Judge Southern District of New York 40 Foley Square New York, NY 10007 Re: L.B. v. New York City Department of Education, No. 21-CV-1033 (VEC) Dear Judge Caproni: I am an Assistant Corporation Counsel in the Office of the Corporation Counsel of the City of New York, Georgia M. Pestana, attorney for the Defendant New York City Department of Education in the above-referenced action. I write pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure and paragraph 5 of Your Honor’s Individual Rules of Practice, to respectfully request leave to file under seal the certified copy of the administrative record underlying this action. The complete administrative record is comprised of the annexed Exhibits 1-6, with Exhibits | and 2 concerning the proceeding before the State Review Officer (“SRO”) and Exhibits 3-8 concerning the proceeding before the Impartial Hearing Officer. This action is based on an administrative proceeding brought pursuant to the Individuals with Disabilities Education Act (“IDEA”). The record of the underlying proceeding is replete with confidential information, including the name, date of birth, and other pedigree information of the minor student, E.B., on whose behalf this action is brought. This information should not be made public in compliance with Rule 5.2(a). See Fed. R. Civ. P. 5.2(a). Additionally, the record contains “personally identifiable information” describing E.B.’s medical history and disabilities, in addition to E.B.’s educational records and information detailing the student’s educational progress and history. These materials are confidential under the IDEA and the Family Educational Rights and Privacy Act (FERPA). 34 C.F.R. § 99.3 (defining ' Defendant will provide an index of these documents early next week.

personally identifiable information under FERPA), and § 300.32 (including a “list of personal characteristics or other information that would make it possible to identity the child with reasonable certainty” as personally identifiable information under IDEA). Additionally, as the underlying administrative proceeding is presumptively closed to the public pursuant to 34 C.F.R. § 300.512(c)(2), all documents recounting the proceeding should themselves be deemed confidential. /d. (permitting parents to choose whether a hearing is open or closed to the public). “For these reasons, courts in this Circuit have routinely allowed administrative records underlying IDEA cases to be filed under seal to protect the privacy interests of minor child plaintiffs.” Z.B. v. New York City Dept of Ed, No. 15-3176, 2015 U.S. Dist. LEXIS 127081, *2 (S.D.N.Y. Sept. 22, 2015) (citing CLL. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 30 (S.D.N.Y. 2012) and A.M. ex rel. Y.N. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 277 (S.D.N.Y. 2013)). Therefore, Defendant believes that this information is appropriately filed under seal pursuant to Lugosch vy. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006). Accordingly, Defendant submits that the Lugosch standard is met here, as protecting the privacy interests of the minor student in keeping confidential that child’s education and medical history constitutes a “compelling reason” to seal the record and outweighs the public's interest in access. Lugosch, 435 F.3d at 121 (countervailing factors include, among others, the privacy interests of those resisting disclosure). This office has conferred with Plaintiffs’ counsel, who consents to this request. Accordingly, Defendant respectfully requests leave to file the certified administrative record in this action under seal. Thank you for your consideration of this request.

Respectfully submitted, /s/ Jeffrey S. Dantowitz Jeffrey S. Dantowitz Assistant Corporation Counsel Min Kyung Cho Assistant Corporation Counsel ce: Benjamin Jay Hinerfeld Irina Roller Plaintiffs’ counsel (via ECF) The request to file the administrative record under seal is GRANTED. The Clerk of Court is respectfully directed to close the open motion at docket entry 23. SO ORDERED.

Date: February 4, 2022 HON. VALERIE CAPRONI UNITED STATES DISTRICT JUDGE

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CNDUROCU ELECTRONI Song ELECTRONICALLY FIL: he DEAS. DOC #: I □□□ DATE FILED: □□□□□□ od) 7 (ea eh :_02/04/2022 Bula □□ or

THE City oF NEW YORK GEORGIA M. PESTANA LAW DEPARTMENT Jeffrey S. Dantowitz Corporation Counsel 100 CHURCH STREET phone: (212) 356-0876 NEW YORK, NY 10007 jdantowi@law.nyc.gov

August 13, 2021

BY ECF Honorable Valerie E. Caproni United States District Judge Southern District of New York 40 Foley Square New York, NY 10007 Re: L.B. v. New York City Department of Education, No. 21-CV-1033 (VEC) Dear Judge Caproni: I am an Assistant Corporation Counsel in the Office of the Corporation Counsel of the City of New York, Georgia M. Pestana, attorney for the Defendant New York City Department of Education in the above-referenced action. I write pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure and paragraph 5 of Your Honor’s Individual Rules of Practice, to respectfully request leave to file under seal the certified copy of the administrative record underlying this action. The complete administrative record is comprised of the annexed Exhibits 1-6, with Exhibits | and 2 concerning the proceeding before the State Review Officer (“SRO”) and Exhibits 3-8 concerning the proceeding before the Impartial Hearing Officer. This action is based on an administrative proceeding brought pursuant to the Individuals with Disabilities Education Act (“IDEA”). The record of the underlying proceeding is replete with confidential information, including the name, date of birth, and other pedigree information of the minor student, E.B., on whose behalf this action is brought. This information should not be made public in compliance with Rule 5.2(a). See Fed. R. Civ. P. 5.2(a). Additionally, the record contains “personally identifiable information” describing E.B.’s medical history and disabilities, in addition to E.B.’s educational records and information detailing the student’s educational progress and history. These materials are confidential under the IDEA and the Family Educational Rights and Privacy Act (FERPA). 34 C.F.R. § 99.3 (defining ' Defendant will provide an index of these documents early next week.

personally identifiable information under FERPA), and § 300.32 (including a “list of personal characteristics or other information that would make it possible to identity the child with reasonable certainty” as personally identifiable information under IDEA). Additionally, as the underlying administrative proceeding is presumptively closed to the public pursuant to 34 C.F.R. § 300.512(c)(2), all documents recounting the proceeding should themselves be deemed confidential. /d. (permitting parents to choose whether a hearing is open or closed to the public). “For these reasons, courts in this Circuit have routinely allowed administrative records underlying IDEA cases to be filed under seal to protect the privacy interests of minor child plaintiffs.” Z.B. v. New York City Dept of Ed, No. 15-3176, 2015 U.S. Dist. LEXIS 127081, *2 (S.D.N.Y. Sept. 22, 2015) (citing CLL. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 30 (S.D.N.Y. 2012) and A.M. ex rel. Y.N. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 277 (S.D.N.Y. 2013)). Therefore, Defendant believes that this information is appropriately filed under seal pursuant to Lugosch vy. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006). Accordingly, Defendant submits that the Lugosch standard is met here, as protecting the privacy interests of the minor student in keeping confidential that child’s education and medical history constitutes a “compelling reason” to seal the record and outweighs the public's interest in access. Lugosch, 435 F.3d at 121 (countervailing factors include, among others, the privacy interests of those resisting disclosure). This office has conferred with Plaintiffs’ counsel, who consents to this request. Accordingly, Defendant respectfully requests leave to file the certified administrative record in this action under seal. Thank you for your consideration of this request.

Respectfully submitted, /s/ Jeffrey S. Dantowitz Jeffrey S. Dantowitz Assistant Corporation Counsel Min Kyung Cho Assistant Corporation Counsel ce: Benjamin Jay Hinerfeld Irina Roller Plaintiffs’ counsel (via ECF) The request to file the administrative record under seal is GRANTED. The Clerk of Court is respectfully directed to close the open motion at docket entry 23. SO ORDERED.

Date: February 4, 2022 HON. VALERIE CAPRONI UNITED STATES DISTRICT JUDGE

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