E.K. v. New York City Department of Education

Application GRANTED. A three-part inquiry determ — THE LAW OFFICEOF— whether to seal a document. See Lugosch v. Pyram. = = STEVEN ALIZIO Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2001 For the reasons stated herein, the privacy interests E.K. in keeping confidential their education and mex history outweighs the public's interest in access. Th September 20, 2024 Clerk of Court is respectfully directed to close the motion at Dkt. No. 34. VIA ECF Hon. Loma G. Schofield Dated: September 25, 2024 United States Courthouse New York, New York 40 Foley Square New York, NY 10007 E.K., et al. v. New York City Department of Educ., 23-cv-11276 AA □□ 70. SCGFIEL UNITED STATES DISTRICT JUDGE Dear Judge Schofield, Our office represents Plaintiffs E.K. and E.K., appearing individually and on behalf of their minor child with a disability, J.A.K., in the above-referenced action. I write jointly with Defendant’s counsel and pursuant to Rule 5.2(d) of the Federal Rules of Civil Procedure, to respectfully request leave to file under seal the affidavit of E.K., which Plaintiffs intend to submit in support of Plaintiffs’ Cross-Motion for Summary Judgment and Opposition to Defendant’s Motion for Summary Judgment. This matter is brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and involves the educational services provided to a minor student, J.A.K. The affidavit of E.K. for which Plaintiffs seek leave to file under seal, necessarily reveals the identity of E.K. and would allow the public to determine the identity of J.A.K., a minor child. This information should not be made public in compliance with Rule 5.2(a). See Fed. R. Civ. P. 5.2(a). Knowledge of E.K.’s identity, and in turn J.A.K.’s identity, would allow the public to learn “personally identifiable information” describing J.A.K.’s medical history and disabilities, in addition to J.A.K.’s educational records and information detailing the student’s educational progress and history that has been detailed in the pleadings and other filings in this matter. This information is 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). 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. Jd. (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)). Therefore, the parties believe that this information is appropriately filed under seal pursuant to Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) The Law Office of Steven Alizio, PLLC, 11 Broadway, Suite 568, New York, NY 10004 Tel: 347.395.4656 | Fax: 347.214.2233 | salizio@edlawny.com | www.edlawny.com (Countervailing factors weighing in favor of sealing include, inter alia, the privacy interests of those resisting disclosure). Accordingly, the parties submit that the Lugosch standard is met 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 affidavit of E.K. to be submitted with Plaintiffs’ Cross Motion for Summary Judgment and Opposition to Defendant’s Motion for Summary Judgement and outweighs the public's interest in access. Lugosch, 435 F.3d at 121 . As such, the parties respectfully request leave to file the certified administrative record in this action under seal. Thank you for Your Honor’s consideration of this request. /s/ Steven J. Alizio Steven J. Alizio, Esq. Justin B. Shane, Esq. The Law Office of Steven Alizio, PLLC Counsel for Plaintiffs cc: BY ECF Counsel of record