Zayas v. Banks

APG = 8h (so) | MEMO ENDORSED Hel yar) te ‘Rp teas: oy THE CiTy oF NEW YORK HON. SYLVIA O. HINDS-RADIX LAW DEPARTMENT CINDY SINGH Corporation Counsel 100 CHURCH STREET office: (212) 356-3586 NEW YORK, NY 10007 csingh @law.nyc.gov May 25, 2023 BY ECF Hon. Katherine Polk Failla United States District Court Southern District of New York 40 Foley Square New York, New York 10007 Re: Zayas v. Banks, 22-CV-7112 (KPF) Dear Judge Failla: I am an Assistant Corporation Counsel in the Office of the Corporation Counsel of the City of New York, Hon. Sylvia O. Hinds-Radix, attorney for Defendant David C. Banks, 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 (DEA). 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, R.Z., 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 R.Z.’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. 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)). 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 R.Z’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/ Cindy Singh Assistant Corporation Counsel cc: Rory Bellantoni, Esq. (by ECF) Plaintiffs’ Counsel Application GRANTED. The Clerk of Court is directed to maintain docket entry 27 under seal, viewable only to the parties and the Court. The Clerk of Court is further directed to terminate the motion at docket entry 26. SO ORDERED. Dated: May 25, 2023 New York, New York □ = pe, i HON. KATHERINE POLK FAILLA 2 UNITED STATES DISTRICT JUDGE