VW v. New York City Department of Education

S.D. New York

VW v. New York City Department of Education

DecidedNovember 2, 2021

Docket1:21-cv-06317

StatusUnknown

This text of VW v. New York City Department of Education (VW 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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VW v. New York City Department of Education, (S.D.N.Y. 2021).

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pro DOCUMENT SE fe ES □□ (i 5 ELECTRONICALLY FILED fla ana ae DOC #: re) Vee Til □□□ DATE FILED: _ 11/2/2021 Wy seas: Oy ee _______ “ars” THE City oF NEW YORK GEORGIA M. PESTANA LAW DEPARTMENT WYNEE NGO Corporation Counsel 100 CHURCH STREET cell: (646) 984-4115 NEW YORK, NY 10007 office: (212) 356-0877 wngo@law.nyc.gov

October 29, 2021

BY ECF Hon. Analisa Torres United States District Court Southern District of New York 40 Foley Square New York, New York 10007 Re: V. W. etal. v. New York City Department of Education, 21-CV-06317 (AT) Dear Judge Torres: I am an Assistant Corporation Counsel in the Office of the Corporation Counsel of the City of New York, Georgia M. Pestana, attorney for Defendant New York City Department of Education (DOE) in the above-referenced action. I write, with the consent of Plaintiffs’ counsel and pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure, to respectfully request leave to file under seal the certified copy of the administrative record underlying this action, which is brought pursuant to the Individuals with Disabilities Education Act (IDEA). As an initial matter, the administrative record reflecting the transcripts of the hearings before the Impartial Hearing Office and the State Review Office, as well as exhibits, educational records, and medical records are replete with confidential information, including the name, date of birth, and other pedigree information of the minor student, P.W., 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 information describing P.W.’s medical history and disabilities, as well as 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 personally identifiable information under FERPA), § 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).

Moreover, 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.” L.B. v. New York City Dept of Ed, 15-CV-3176, 2015 U.S. Dist. LEXIS 127081, *2 (S.D.N.Y. Sept. 22, 2015)(citing C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 30 (S.D.N.Y. 2012); 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)). For the reasons above, Defendant believes that the administrative record is appropriately filed under seal pursuant to Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (noting that countervailing factors weighing in favor of sealing include, inter alia, the privacy interests of those resisting disclosure). In particular, Defendant submits that the Lugosch standard is met because protecting P.W.’s privacy interests in keeping confidential the minor student’s education and medical history constitutes a “compelling reason” to seal the record 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). Accordingly, Defendant respectfully requests, with consent of Plaintiffs’ counsel, leave to file the certified administrative record in this action under seal. Thank you for your consideration of this request. Respectfully submitted, s/ Wynee Ngo Assistant Corporation Counsel ce: H. Jeffrey Marcus (by ECF) Wendy Marie Zimny Plaintiffs’ Counsels

GRANTED. The document at issue contains highly sensitive personal information, and thus, sealing is warranted. SO ORDERED. Dated: November 2, 2021 New York, New York ANALISA TORRES United States District Judge

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pro DOCUMENT SE fe ES □□ (i 5 ELECTRONICALLY FILED fla ana ae DOC #: re) Vee Til □□□ DATE FILED: _ 11/2/2021 Wy seas: Oy ee _______ “ars” THE City oF NEW YORK GEORGIA M. PESTANA LAW DEPARTMENT WYNEE NGO Corporation Counsel 100 CHURCH STREET cell: (646) 984-4115 NEW YORK, NY 10007 office: (212) 356-0877 wngo@law.nyc.gov

October 29, 2021

BY ECF Hon. Analisa Torres United States District Court Southern District of New York 40 Foley Square New York, New York 10007 Re: V. W. etal. v. New York City Department of Education, 21-CV-06317 (AT) Dear Judge Torres: I am an Assistant Corporation Counsel in the Office of the Corporation Counsel of the City of New York, Georgia M. Pestana, attorney for Defendant New York City Department of Education (DOE) in the above-referenced action. I write, with the consent of Plaintiffs’ counsel and pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure, to respectfully request leave to file under seal the certified copy of the administrative record underlying this action, which is brought pursuant to the Individuals with Disabilities Education Act (IDEA). As an initial matter, the administrative record reflecting the transcripts of the hearings before the Impartial Hearing Office and the State Review Office, as well as exhibits, educational records, and medical records are replete with confidential information, including the name, date of birth, and other pedigree information of the minor student, P.W., 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 information describing P.W.’s medical history and disabilities, as well as 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 personally identifiable information under FERPA), § 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).

Moreover, 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.” L.B. v. New York City Dept of Ed, 15-CV-3176, 2015 U.S. Dist. LEXIS 127081, *2 (S.D.N.Y. Sept. 22, 2015)(citing C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 30 (S.D.N.Y. 2012); 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)). For the reasons above, Defendant believes that the administrative record is appropriately filed under seal pursuant to Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (noting that countervailing factors weighing in favor of sealing include, inter alia, the privacy interests of those resisting disclosure). In particular, Defendant submits that the Lugosch standard is met because protecting P.W.’s privacy interests in keeping confidential the minor student’s education and medical history constitutes a “compelling reason” to seal the record 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). Accordingly, Defendant respectfully requests, with consent of Plaintiffs’ counsel, leave to file the certified administrative record in this action under seal. Thank you for your consideration of this request. Respectfully submitted, s/ Wynee Ngo Assistant Corporation Counsel ce: H. Jeffrey Marcus (by ECF) Wendy Marie Zimny Plaintiffs’ Counsels

GRANTED. The document at issue contains highly sensitive personal information, and thus, sealing is warranted. SO ORDERED. Dated: November 2, 2021 New York, New York ANALISA TORRES United States District Judge

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