before you with some bad facts and i can't change those facts but we submit that the underlying issue here is one that results in what we believe is it bad legal decision and that's why we're asking this court to reverse the district court we believe that the threshold question here is whether the individuals with disabilities education act referred to his idea is the applicable an act and does the exhaustion mandate and indeed apply here we believe in submit that idea is the applicable an act and looking at the actual record here  i don't understand there to be any dispute but this arises out of requests for educational records no one can dispute that and that triggers idea that's what idea it is designed for in what it's all about  what the apple e impasse argues is that somehow they're bringing this claim independently and because of that bikin bypass idea i think that's the real issue before this court in there we have to look at the actual record itself starting with the complaint that was filed by impasse and looking at the actual documents that were attached to that which of these letters and again there we submit the really can't be any question that i that impasse was bringing this matter in the representative capacity on behalf of the parents of these children the letters referred to there they actually referred to the act itself the correct act we submitted idea and complaint is laced with these allegations of impasse anting in its representative capacity and that it's filled in the complaint paragraphs two sixty to seventy two and eighty four of the complaint specifically refer to im doing its representative capacity so in light of that we're in a situation where they are bringing this under idea it's not this independent  action that impasse is now belatedly trying to frame an idea recognizes the regulations themselves recognize that impasse can do just that that parent doesn't have to go alone a parent can have a designated representative to request these records to go through the due process hearing under the act itself and that's exactly what impasse did give complete tells us at that impasse did file these due process complaints for four of the eight parents in involved in this and was able to get the records themselves so if idea applies if it's the applicable act the consequence of that is the exhaustion ma idea should in must apply and that's the danger of the district court's ruling here is it bypasses that exhaustion requirement in page eleven of the district court's opinion an order really crystallizes the issue itself there or the district court explained that because of its reading of the complaint in this case it was not filed under idea  therefore the exhaustion requirement the act is immaterial those are the words essentially of the district court but that cannot be squared with this court's ruling in the frye keys again this is a recent case and i know the score it is aware but just to put it on the record the united states supreme court on june twenty eight of this year granted the petition for certain frye keeps but as we speak friday is the controlling authority in this circuit on this issue and what this court has held in friday is that the exhaustion mandy in idea is required even if it is not included in the complaint itself in recognize judge cooke is that you can't plead around ideas so if you want to frame a cause of action thing was to get past exhaustion and get into court quicker if idea is over wise trigger if it should have been merely because someone is pleading around it you can't avoid the exhaustion mandate and that's really at the heart of what we have here is the impasse has come up with a legal theory that is their a hand require request and obtain records even without the kind of parental authority that id it would require under some circumstances correct under some the effect of the order that has been put on by the district court to say it doesn't matter what the circumstances are it doesn't matter if this is one where you under the three federal statutes you know id it wouldn't come into play  it doesn't matter in every circumstance regardless you've only got three days that the greatest danger of the district court ruling is the prospective relief that it goes out in the future that's the problem because so you're asking  other exceptions but this goes according to impasse and home challenge counsel to get up and correct me if they're taking a different position their position is i know this is a preliminary injunction to grants the full relief from the case their position is this will last for ever for ever so this district alone has to give these records under the wrong act within three days or five days depending on which of the acts we're talking about the only district in the country that's required to do this forever and i'm more concerned about i'm less concerned about the forever aspect and the regardless of the actual specific circumstances surrounding any given records request and again we do not believe that this falls within these exceptions as far as systematic is concerned and the the reason for that your honor is if you're looking at the underlying engine first the records were all of teen except for one student where there was just an error with respect to the same initials and we covered that in the brief and suit his initials were j j the district gave the wrong gigi's records and just there was an era there by the time of hearing all these records were indeed produced so is par is whether it's systemic which is really the other exception here we do not believe the record supported a finding that this was a systemic problem yes that there was some history here but they were based on particular lies conditions that the district itself had remedied at the time of the hearing itself and it wasn't that there was no policy like mcqueen and recognized were practice the district had put in place it was the opposite and melinda carroll from the district testified at the hearing that the district wants to get these out quickly recognizes the importance of this we don't have some policy of withholding records when they're being requested so it doesn't fall within these exceptions that's a danger here is that if you look at the actual record it doesn't fit within these exceptions and we have reading out of existence idea supplanting it with these other two and x the other three the peony accident being referred to and they had is what we believe to be the legal error again idea applies and if the district court had recognized that idea applied it could have framed a preliminary injunction but we wouldn't be taking out of existence what idea beyond says which is it before you run into court there's a process you can go through we want this to be collaborative in cooperated here we got one district that it's never going to be according to this collaborative uncooperative it's always adversarial and we've got three or five days as opposed to everybody else having up to forty five days no matter what the circumstances are and that's the danger is that idea so you cannot do that in that's the point of yours you're convinced that we this district court would be wrong to find that in flint and everyone knows there's serious budgetary problems with that district that the court would be would be unfounded to say against impasse and it's the exact opposite of what ideas it's supposed to be collaborative cool operative in m p s isn't a representative capacity here so it's pitting really distributes parents for ever is really what we have here so mater what well again if you get in the cases that are recognizing you want the parent words represent to come in and talk to the district you know so the courts don't have to deal with these kind of issues a lot of these things are very very unique in particular that's why do a set up friend here will stand up and say well we tried to cooperate and they just don't they don't come forth and the parents got fed up and they came to us and we actually we got an order and got the records if they if they can't get what they me in a reasonable time isn't that an exception again it is i understand the argument itself there's more to would the now because of these requests were sent to different buildings and things like that that made it harder for the district to respond to it was a two way street that had there been more cooperation some might have been avoided and to no doubt what you are and i'm not in that's why that's not the case what am passed is doing is using the p n a x which explicitly granted the right to access the records that seeking to get those records the records were requested  passes own behalf and as a representative of the parents what flint schools fails to recognize is that impasse wears two hats at the same time it fulfills a unique role as the protection and advocacy system  apply to situations which even though m passes acting as a representative for the parents would come under the idea what i'm what i'm saying judge  impasse is always requesting records on its own behalf to serve its unique role to investigate issues that are occurring in the district and around the state the purpose of requesting records for em past is that it allows us to determine what issues are occurring in the district not just for that student but to recognize patterns when records requests are seen in the aggregate to determine whether there are systemic issues occurring in the district that require our attention to set our priorities which must be done annually recognizing the actual imminent issues that are occurring around the state have you in other parts of the state filed id as practice and pass has historically requested records under the idea and that's because that system has worked it's allowed us to get records quickly from school  had the been required to utilize the piano acts in my view unique circumstances you found in flint of repeated forwarding of records requests i take apparently is budgetary problems or they were just a mess because they have no money and they probably don't have staff that may be the case but what we're we're asking for is not anything besides records that are kept in the regular course of business and it goes beyond the ability to provide the records within any amount of timeframe we also got receiving any response or acknowledgement of our requests at all from flight schools and when when flint kind of the schools does discusses  exhaustion of administrative remedies under idea that only comes into play when idea can offer the relief that's being sought in this case and passes asking for its records requests to be responded to under the p my question so you've got these three acts that you can proceed under and your complaint indicates that that that's what you did here and you set forth some of the purposes the impasse had for seeking these  reasons for seeking the records i assume pretty much under idea the idea is to represent a child to assure the child gets a free appropriate public education but these separate statutes that permit him pastors to proceed as it did so there may be some overlap with the sort of id in terms of seeking records of these eight kids or many other there i think it's directly on point to say that these statutes allow and has to proceed in the way that it did to answer your question regarding whether it's parallel with the purposes of the idea that's not the case and pass has purposes beyond provide proof beyond a sharing that students receive a free and appropriate public education and for example and pass is tasked with protecting and advocating for the rights of individuals with disabilities regardless of whether they're eligible under the idea several of our clients including some of the exemplars mentioned in the complaint were not eligible under the idea when their records were requested and has has the ability to bring in claims on their behalf under the americans with disabilities act section five or four of the he had to act even state tort law claims perhaps and these are claims that aren't don't run parallel with the idea separate rights that are being protected by and passed for those students and also remember also mentioned that under the set up now with this order in place impasse would never have to proceed under idea that's correct m past has the right to request records and to receive records copies of records within three days under the piano acts however as a practice and pass provides more time to school districts and is certainly acknowledge school districts responses requesting more time was it your position though that impasse doesn't ever have to proceed under i d l regardless of the reason for the records request and regardless of whether it would be covered under i d e a and i'm talking now not just with regard to the order that's been entered in with regard to the fund schools but i mean just in general our position is that impasse is intitled to education record or to i'm sorry to its clients records they fall if they fall under the piano he acts so they also have said though that impasse is entitle to seek these records on its own behalf which would imply to me that that doesn't require a client but there are scenarios when i am past doesn't require authorization to seek records from the client whose records are being requested and in those scenarios certainly impasse is entitled to receive the records under the  what would what would ordinarily be the timeframe you would pursue and that kind of a situation in that situation the piano acts say three days or if there is an emergency scenario or if there is a potential harm immediately so in essence in any claim the impasse now brings any time you want to record you are pleading around the idea if it's something that is in fact covered by the i complaints that i'm passed brought it's clear that idea remedies are an adequate and has attempted to resolve this issue under idea and found that it was inadequate because while we did receive records for the individual students for whom records were requested that's all that the relief that due process under idea can provide doesn't offer any systemic relief and even in cases where i am broadly does the record reflect that other than the records that you didn't get but now finally have gotten that seem to be the issue here that you're simply not getting any other records anyway i'm sorry if you repeat the question well it seemed to me you were just saying  t the three federal acts give you three days and in general you're not getting records from the flint schools not just these records but you're just not getting records and so you have to you need this order to make sure that you're getting the records no matter under what statutory authority you're seeking them and i'm trying to figure out where in the record that is reflected that you're not getting the records other than the these records which you have now gotten it's stated in the record that over the years leading up to the complaint flints response our records request devolved to the point where we were receiving no response at all to any of our requests and  in addition and i'm sorry if i'm not remembering the specifics of this but this that record shows specific record reflects requests that were not responded to in any way besides the the complaint if it doesn't specify the exact records request however we there is testimony from an advocate from and passive knowledge in that that's the case that she hasn't been able to receive a response from flight schools after and has has requested records to to the districts to clint's point that this would always be an adversarial and devery that's not the case and pass when it requests records does provide for additional time historically in the eight examplar cases in all of the records request presented as exhibits and pass asks for additional time but tells the district that it won't be able to fulfill its role as a peon a system if it can't access records promptly when schools provided no response to that a nd we're not asking for anything outside of what's required by the p n a x which grants us this right to access records of this order permit flight schools to provide records and some sort of prompt order that's going to be more than three days twelve days of tax in that long eight days or whatever the amount of time might be  presentation of these these records should have me how does that going to get haml going forward the preliminary injunction states that flight schools must comply with the timeframes mandated by the piano acts and then goes on to say three days or five days coverage but when it says within the timeframe mandated by the pinay acts it's referencing the fact that the pinay acts provide for additional time if the district responds and says that there they don't have the ability to provide records within three days and were so my understanding of the record can be wrong here is that for schools acknowledges that it was slow or any fission for some period of time and providing some records and some took four or five months but that they've sort reorganize themselves and have somebody dedicated to moving these records requests along or attempting to respond quickly but it just may be that sometimes three or five days is not enough time yes and we appreciate that in the p n a x provided for that but the district court also found that it did not meet its burden of showing that these acts are these it's failure to respond was incapable of repetition and in part that's why it granted the request for a preliminary injunction will be the penalty when they when they miss you three days well again judge bench all of the pinay acts do provide for an extension if necessary i'm not talking about the statute we have an order on from the court saying you have three days period for every request so what's the penalty when they missed three days and passed again is willing to work with the school district like counsel for flint said we want to have a cooperate relationship with the district we've tried to have a cooperative relationship with the district and have been forwarded in doing so but if  records request were we're not responded to within three days we wouldn't be running to the court house seeking sanctions against them we'd be trying to work with them to get a wrist response promptly if three days passes we would send a follow up request and that's consistent with our practice before the injunction of sending follow up requests when our requests had been ignored even further ok thank you kelly i have one more question may i have you have anybody within the school system that you feel is would be cooperative the person the go to person there is a system a's the day to make that clear between with you and your opponent here that we have we like you know mrs so and so and she she helps a lot and if we knew we could go there that kind of thing wonder if that's something to be on the table i appreciate the suggestion and we do have a system in place currently since the injunction has issued  we've worked with the district to make it clear how will be requests have you record the channel yes who will be sending the records requests to so that's explicitly clear between the parties and has been working we've been receiving the record successfully it within three argued it is adversarial we got an order in an answer to judge batchelor the answer is because question what's the penalty here the police contempt and impasse is now saying that we'll call it but that's not what the orders district is laboring under this order that says three or five days a week depending on which and we're talking about and it's even hard to understand which acts going to apply to the district thankfully has to do all this within three days nobody else has to do that i pledged i would come back  and we submit it's not systemic here we've outlined that we want to get these it's more than one i acknowledge that but in answer the questions there's no other specific example on this record we have a district to hit certain conditions that it has remedied and that's on the record as to what it did we don't have a practice we don't have a policy what we have is infliction poverty it's an impoverished district it's laboring under deficit elimination play and it's doing the best you can counsel did not heed my challenge he is saying for ever for ever and that's the danger of this order that's why we have to be what's the remedy for forever i mean in light of we balance it as did the district court and we say they were up against it and they have children that at risk right and so what's the what's the right answer here the balance i submitted is idea it really sets of sound so if you at least that what i submit to be the break at their prior requests were through idea they were and they didn't they didn't produce records again i can't quarrel with that i realise that it i'm still thinking forever all and no records is pretty miserable too they're both band of top people forever last an awful long time so then that's the danger here if you're building for ever again that this is what do you what does this court do so it was here we are understood if this court rules idea applies i do says we we have to find that the district court erred in some way  the court could say ok that's up to forty five days this district twenty days or whatever that may be but at least you don't read out of existence the collaborative process so that least they have to talk to each other rather than being under the gun all the time and it would you have you don't quarrel with the idea that these other three federal statutes under which counsel moved are inapplicable i don't quite we don't get i didn't think you