In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4171

DISABILITY RIGHTS WISCONSIN, INC.,

Plaintiff-Appellant,

v.

STATE OF WISCONSIN DEPARTMENT

OF PUBLIC INSTRUCTION and

ELIZABETH BURMASTER, State

Superintendent of Public Instruction,

in her official capacity,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 05-C-0295-C—Barbara B. Crabb, Chief Judge.

____________

ARGUED MAY 2, 2006—DECIDED SEPTEMBER 13, 2006

____________

Before CUDAHY, RIPPLE, and WOOD, Circuit Judges.

CUDAHY, Circuit Judge. The specific issue in this

appeal is whether and to what extent the State of Wisconsin

Department of Public Instruction (DPI) must disclose

records uncovered in its investigation into the use of “time

out” or seclusion rooms for disciplining students at the

Abraham Lincoln Elementary School (Lincoln) in Monroe,
2 No. 05-4171

1 DRW was, at the outset of this appeal, known as the Wisconsin Coalition for Advocacy or WCA.

Wisconsin, to Disability Rights Wisconsin, Inc. (DRW)1—the

agency authorized to investigate alleged incidents of abuse

or neglect of people with mental or physical disabilities in

the state. The broader issue concerns the scope of state

protection and advocacy agencies’ rights to records when

the agencies have reason to believe that the citizens they

are charged with protecting are being abused or neglected.

DRW brought suit in federal court seeking declaratory and

injunctive relief to compel DPI to turn over its records. The

district court denied DRW’s motion, reasoning that the

relevant statutes require DRW to know the names of

students who may have been placed in the seclusion rooms

or at least try to obtain permission from their legal representatives to access the records. The district court also

concluded that DRW failed to show that it had exhausted

the available administrative remedies—an issue meriting

no further consideration since DPI expressly abandoned

it at oral argument. We vacate the judgment and remand

the case for further proceedings.

I. Background

DRW is a nonprofit stock corporation designated by the

state of Wisconsin to serve as its protection and advocacy

agency (P&A agency), as required under federal law. WIS.

STAT. § 51.62 (2006). Wisconsin trusts that DRW, in this

capacity, will protect individuals with disabilities or mental

illness and be an advocate on their behalf. The three federal

statutes requiring that the states establish P&A agencies

and governing their operations are the Developmental

Disabilities and Bill of Rights Act (the DD Act), the Protection and Advocacy for Mentally Ill Individuals Act of 1986
No. 05-4171 3

2 Some courts abbreviate the Protection of Mentally Ill Individuals Act of 1986 to “PAMII.” In 1988, Congress amended the

statute to remove all references to the phrase “mentally ill

individuals” and replaced those references with “individuals

with mental illness.” See Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness, 62 Fed. Reg.

53548-01 (Dep’t of Health & Human Servs. Oct. 15, 1997) (final

rule). Only the title remained unchanged. We adopt “PAIMI,”

which the parties and district court chose as well.

(the PAIMI Act)2 and the Protection and Advocacy of

Individual Rights Act (the PAIR Act)—known collectively as

the federal protection and advocacy statutes or the federal

P&A statutes. DD Act, 42 U.S.C. §§ 15001-115 (2006);

PAIMI Act, 42 U.S.C. § 10801-851 (2006); PAIR Act, 29

U.S.C. § 794e (2006).

The federal P&A statutes, which Congress enacted after

concluding that state systems for protecting the rights of

individuals with disabilities varied widely and were in

many cases inadequate, condition federal funding for each

state on the establishment of an effective protection and

advocacy system for individuals with mental illness or

physical disabilities. 42 U.S.C. §§ 15001, 15041, 15043;

42 U.S.C. §§ 10801(a)(1)-(4), 10803, 10805; 29 U.S.C.

§§ 794e(a)(1); 794(e)(f).

Lincoln has two seclusion rooms that it has in the past

used as part of its special education program to place

students who had become unruly on “time-outs” if their

individual education plans (IEPs) allowed it. (R., Jt.

Stipulated Findings of Fact ¶¶ 4-5.) The general idea

behind seclusion rooms is to remove children from the

classroom who are behaving inappropriately to allow them

time and space to calm down and regain control of their

behavior. (R., Compl., Ex. A.) Staff also have used the room

to seclude students presenting dangers to themselves or to

others. (R., Compl., Ex. A.)
4 No. 05-4171

3 Lincoln has two seclusion rooms that, at the time of the claims,

it sometimes used to put unruly children on “time-outs.” DPI

identified four children who had been placed in the lower-level

room during the 2004-2005 school year and two children who had

been placed in the main-level room, which is next to the principal’s office. DPI concluded that the use of the main-level room was

not problematic. As the legality of the seclusion rooms is not at

issue in this appeal and since DRW has requested access to DPI’s

files pertaining to all six children potentially placed in both rooms,

we do not differentiate between the rooms in this opinion. In

addition, although Lincoln still has the seclusion rooms (so far as

we can tell), we refer to them in the past tense in light of the

district’s moratorium on their use. (R., Jt. Stipulated Findings of

Fact ¶¶ 4-5; R., Def.’s Br. and App. in Opp. to Mot. for Prelim. Inj.

10-11.)

In October 2004, the parents of G.M., a student enrolled

in Lincoln’s special education program, complained to DRW

that a staff member had physically restrained and dragged

G.M. to a seclusion room on the lower-level of the school.3

This report was apparently the first report that DRW

received regarding the use of seclusion rooms at Lincoln.

The seclusion room at issue in the complaint was approximately five feet by nine feet in size. Dark grey carpeting

covered the floor and the walls. Fluorescent ceiling lighting

illuminated the room, along with a window in the door. The

door to the room had a lock and no interior door knob,

which violated the fire code and has since been remedied.

(R., Jt. Stipulated Findings of Fact ¶ 7.)

On February 27, 2005, a television station in Madison,

Wisconsin, informed DPI that it intended to air a report

about a seclusion room in a state school district. The station

refused to identify the district to DPI. On March 1, a

reporter from the station requested comments from DRW

regarding an investigation into the seclusion room at

Lincoln. The television report, which aired on March 2,
No. 05-4171 5

2005, showed the seclusion room and included interviews

with children who claimed they had been locked inside. The

broadcast also featured interviews with those children’s

parents.

After the broadcast, additional parents who either knew

or suspected that their children had been locked in the

seclusion room requested help from DRW. Because many of

these children are nonverbal or have limited verbal capacities, some parents are unable to determine whether their

children were placed in the seclusion room. Also following

the broadcast, DPI—the agency charged with, among other

things, enforcing compliance with state and federal special

education laws in Wisconsin—launched an investigation

into Lincoln’s use of the seclusion room. DPI concluded that

the room violated a number of state and federal laws and

revealed that Lincoln staff had placed six children inside.

Its report, however, did not identify the children by name.

DRW obtained a copy of DPI’s findings on April 11, 2005,

and that same day informed DPI that it was conducting

its own investigation of the room. DRW also asked DPI to

provide a copy of its investigative file (which would include the names of the children) or send a copy of its

findings to the parents of the six children who had been

placed in the seclusion room during the 2004-2005 school

year. DPI eventually sent the file but redacted the children’s names and any information that might identify them.

DPI explained that it decided to redact the information

based on court decisions, state and federal pupil confidentiality laws (including the Individuals with Disabilities

Education Improvement Act (IDEA) and the Family

Educational Rights and Privacy Act (FERPA)), and preliminary guidance received from the U.S. Department of

Education.

DRW eventually filed a motion for a preliminary injunction in the Western District of Wisconsin, seeking release of
6 No. 05-4171

the names. The district court converted the motion to a

motion for a permanent injunction and gave the parties

time to file additional materials. The court eventually

denied DRW’s request, reasoning that DRW did not

show that it had exhausted its administrative remedies

or explain why it need not do so, and also that the federal

protection and advocacy statutes require DRW to know the

names of the individuals whose records it wishes to access

or to try to obtain consent for that access from the students’

legal representatives. DRW timely appealed, arguing that

the federal P&A statutes entitle it to all the information in

DPI’s files.

II. Discussion

Resolving this case requires us first to understand how

the federal P&A statutes operate and next to determine

whether FERPA affects their application in the context of

school-related records. We review questions of statutory

interpretation de novo. Gaffney v. Riverboat Servs. of Ind.,

Inc., 451 F.3d 424, 445 (7th Cir. 2006). In the context of a

district court’s denial of an injunction, we review legal

conclusions de novo and findings of fact for clear error.

Joelner v. Village of Wash. Park, 378 F.3d 613, 619-20 (7th

Cir. 2004).

A. The Federal P&A Statutes

DPI contends that the federal P&A statutes do not entitle

DRW to the information it seeks. DRW contends that it is

entitled to the information it seeks even in the absence of

authorization from the individuals’ guardians. Addressing

those arguments requires a close examination of the federal

P&A statutes governing the protection and advocacy

system.
No. 05-4171 7

The core requirement of the federal P&A statutes is that,

in order to receive federal funding, each state must establish an effective protection and advocacy system to respond

to allegations of abuse and neglect and generally to protect

the rights of individuals with disabilities. 42 U.S.C.

§ 15043(a)(2)(A)(i); 42 U.S.C. § 10805(a)(1); 29 U.S.C.

§ 794e(f)(3). The DD Act, the PAIMI Act and the PAIR Act

establish separate but largely parallel regimes to serve

particular populations of people with disabilities. See Gary

P. Gross, Protection and Advocacy System Standing—To

Vindicate the Rights of Persons With Disabilities, 22

MENTAL AND PHYSICAL DISABILITY LAW RPTR. 674, 674

(Sept.-Oct. 1998) (providing extensive background on the

P&A system).

The DD Act, which Congress enacted in 1975, was the

first statute to establish a federally directed P&A system.

It, like the later-enacted PAIMI and PAIR Acts, requires

that states establish P&A agencies such as DRW, and

authorizes those agencies “to pursue legal, administrative,

and other appropriate remedies or approaches” to ensure

that individuals with disabilities are protected. 42 U.S.C.

§ 15043(a)(2)(A)(i). The DD Act, however, limits the scope

of the P&A agencies’ authority to individuals with developmental disabilities. § 15043(a)(1). To qualify for services

under the DD Act, an individual must have a severe,

chronic disability that became manifest before the age of 22

and that results in substantial functional limits in three or

more “major life activities,” including self-care, receptive

and expressive language, learning, mobility, self-direction,

capacity for independent living and economic self-sufficiency. § 15002(8)(A).

The PAIMI Act, which contains many of the same directives as the DD Act, was enacted in 1986 to protect the

rights of individuals with mental illness by requiring, as a

condition of federal funding, that states establish P&A

systems with authority to investigate and remedy suspected
8 No. 05-4171

abuse or neglect of individuals with mental illness. 42

U.S.C. § 10805(a)(1). The PAIMI Act initially applied only

to individuals with mental illness living in “facilities,”

which included, among other things, nursing homes,

community facilities, board and care homes, homeless

shelters and prisons. 45 C.F.R. § 1386.22(e)(1)-(3) (2006). In

2000, Congress amended the PAIMI Act to cover individuals

with mental illness living in “community settings,” including their own homes. 42 U.S.C. § 10802(4)(B)(ii). To qualify

for services under the PAIMI Act, an individual must have

a “significant mental illness or emotional impairment, as

determined by a mental health professional.” § 10802(4).

The PAIMI Act, like the DD Act, directs that P&A agencies

shall have broad investigatory authority to carry out their

responsibility to protect individuals with mental illness and

to advocate on their behalf. § 10805(a)(1).

The third statute relating to the state P&A system is

the PAIR Act, which Congress enacted in 1994 to serve

people with disabilities who were not covered under either

the DD Act or the PAIMI Act. 29 U.S.C. § 794e. To receive

federal funds under the PAIR Act, a state must establish a P&A system that has “the same general authorities,

including access to records and program income, as are

set forth [in the DD Act].” § 794e(f)(1)-(2).

Each of the three federal P&A statutes supplies state

P&A agencies with broad investigatory authority, including

access to certain records. 42 U.S.C. § 15043(a)(2)(H)-(I); 42

U.S.C. § 10805(a); 29 U.S.C. § 794e(f)(2). The statutes

specifically authorize P&A agencies such as DRW to

investigate incidents of abuse or neglect of individuals when

the agencies receive complaints or determine that there is

probable cause—that is, reasonable grounds to believe that

an individual has been, or may be, subject to abuse or

neglect. 42 U.S.C. § 15043(a)(2)(B); 42 U.S.C.

§ 10805(a)(1)(A); 29 U.S.C. § 794e(f)(2); 45 C.F.R. § 1386.19;
No. 05-4171 9

4 The probable cause standard under the PAIMI Act is slightly

more rigorous. The relevant regulation defines probable cause

to mean: “reasonable grounds for belief that an individual with

mental illness has been, or may be at significant risk of being

subject to abuse or neglect.” 42 C.F.R. 51.2 (emphasis added).

42 C.F.R. § 51.2.4 The statutes further authorize the P&A

agencies to pursue administrative, legal and other appropriate remedies to ensure the protection of individuals with

disabilities or mental illness in the state. 42 U.S.C.

§ 15043(a)(2)(A)(i); 42 U.S.C. § 10805(a)(1); 29 U.S.C.

§ 794e(f)(3).

In addition to granting general investigative power, the

federal P&A statutes also state that the P&A agencies must

“have access to all records of any individual” with disabilities or mental illness “who is a client of the system if such

individual or legal guardian, conservator, or other legal

representative of such individual, has authorized the

system to have such access.” 42 U.S.C. § 15043(a)(2)(I)(i); 42

U.S.C. § 10805(a)(4)(A); 29 U.S.C. § 794e(f)(2). In circumstances where an individual has no parent or guardian, the

P&A agencies may access records so long as they have

probable cause to believe that abuse has occurred. 42 U.S.C.

§ 15043(a)(2)(I)(ii); 42 U.S.C. § 10805(a)(4)(B); 29 U.S.C.

§ 794e(f)(2). Finally, where the individual’s guardian has

failed or refused to act, the P&A agencies may access

records under the DD Act and the PAIR Act so long as they

have probable cause to believe that the individual has been

subject to abuse or neglect, or, under the PAIMI Act, they

have probable cause to believe that an individual’s health

or safety is in serious and immediate jeopardy. 42 U.S.C.

§ 15043(a)(2)(I)(iii); 42 U.S.C. § 10805(a)(4)(C); 29 U.S.C.

§ 794e(f)(2). Thus, in general, the federal P&A statutes

require the P&A agencies to obtain a guardian’s consent

before they may access individual records. Two issues follow
10 No. 05-4171

from this requirement: (1) whether the records that DRW

seeks are “individual records”; and (2) whether something

special about the present case alters or eliminates the

general consent requirement in these circumstances.

B. Records Under the Federal P&A Statutes

Whether the records that DRW seek fall within the ambit

of “individual records” is not an easy issue to resolve; the

records are not easily classified. But it is important to

examine the definition of the term, since, in ordinary cases,

the classification of the documents sought will control the

terms of their release.

Records, under the DD Act, include:

a report prepared or received by any staff at any

location at which services, supports, or other assistance

is provided to individuals with developmental disabilities; a report prepared by an agency or staff person

charged with investigating reports of incidents of abuse

or neglect, injury, or death occurring at such location,

that describes the incidents and steps taken to investigate; and a discharge planning record.

42 U.S.C. § 15043(c)(1)-(3). The PAIR Act, once again, is

parallel to the DD Act. 29 U.S.C. § 794e(f)(2). The PAIMI

Act defines records as “reports prepared by any staff of a

facility rendering care and treatment or reports prepared by

an agency charged with investigating reports of incidents of

abuse, neglect, and injury occurring at such facility that

describe incidents of abuse, neglect, and injury occurring at

such facility and the steps taken to investigate such

incidents, and discharge planning records.” 42 U.S.C.

§ 10806(b)(3)(A).

DPI argued in the district court that the information

DRW seeks does not constitute a “record” within the
No. 05-4171 11

meaning of the federal P&A statutes because DPI is not a

“facility” nor is it charged with investigating abuse or

neglect. The fact that DPI is not a “facility” is of no moment;

the potential abuse or neglect took place at Lincoln, and

Lincoln easily meets the definition of a facility. 45 C.F.R.

§ 1386.19 (“Facility includes any setting that provides care,

treatment, services and habilitation . . . .”). The argument

that DPI itself is not an agency charged with investigating

reports of abuse or neglect is also beside the point. For

starters, DPI did in fact investigate complaints of potential

abuse or neglect at Lincoln. And in the end, it is up to DRW

to determine whether abuse did in fact occur; preventing

DRW from obtaining the information it needs to investigate

on the basis that DPI did something it was not required to

do frustrates the goals of the federal P&A system.

DRW, on the other hand, argues that, while it is seeking

records, it need not obtain authorization before it is entitled

to the information. DRW, it seems to us, is essentially

trying to draw a distinction between investigatory information and individual records. Since, DRW reasons, the

federal P&A statutes expressly authorize the P&A agencies

to investigate incidents of abuse and neglect if they have

probable cause to believe that the abuse occurred, the

agencies must also have access to records about that abuse.

Although this argument has some intuitive appeal, it fails

to address the fact that each federal P&A statute contains

provisions pertaining to the release of records that are

entirely separate from the provisions supplying the agencies

with investigatory authority. And for the most part, the

records provisions specifically require that the P&A agencies obtain a guardian’s authorization before they may have

access to records except where an individual has no guardian or, under the DD Act and the PAIR Act, the agencies

have probable cause to believe that abuse or neglect has

occurred or, under the PAIMI Act, that abuse is imminent

and the guardian has failed to act.
12 No. 05-4171

Some textual support for DRW’s apparent distinction

between investigatory information and individual records

seems to come from 42 U.S.C. § 15043(a)(2)(J)(i), which

directs that agencies must “have access to the records of

individuals described in subparagraphs (B) and (I), and

other records relevant to conducting an investigation, under

the circumstances described in those subparagraphs”

(emphasis added). The language relating to “other records”

initially seems to support DRW; although the language

directly concerns how quickly a P&A agency is entitled to

records, it does appear to be broader than the language

governing individual records and contains no limiting

language. But if “other records” covers the information that

DRW seeks here—information about DPI’s investigation

including the names of the students—then the authorization requirement for individual records seems rather

innocuous. If § 15043(a)(2)(J)(i) (quoted above) allows an

outside agency to access individual records without authorization simply because the records are relevant to an

investigation, why have an authorization requirement at

all? Will not almost every record that a P&A agency seeks

somehow qualify as relevant to an investigation? Construing “other records” in such a manner would, we think,

effectively eliminate the authorization requirement altogether.

Aside from this more or less technical point, we also must

recognize the context surrounding a request for records. The

bulk of the information that DRW seeks (most of which it

already possesses) is generalized information about the

room where students are confined—its size, its characteristics and the provisions for its use. But once DRW obtains

the students’ names, it inevitably obtains individualized

information about the students—namely, that the students’

IEPs call for use of the seclusion room and that the students were subject to discipline involving the room. Especially in light of these inevitable revelations that the release
No. 05-4171 13

5 Although DRW could, for example, contact every guardian at

Lincoln and inform them of the potential problems, such a

requirement would be onerous and not always effective. The

universe of potential victims is admittedly small here. But that

will not always be the case.

of the names will provide, we must conclude that the

records at issue here are individual records generally

subject to the guardians’ authorization requirement contained in the federal P&A statutes.

Concluding, however, that the records DRW seeks are

individual records does not necessarily preclude the agency

from access to at least some of the information. See Ala.

Disabilities Advocacy Prog. v. J.S. Tarwater Dev. Ctr., 97

F.3d 492, 497 (11th Cir. 1996) (concluding that “it is

clear that the [federal P&A statutes] provide[ ] express

authority for P&A’s to gain broad access to records, facilities

and residents to ensure that the [statutes’] mandates can be

effectively pursued”); Miss. Protection & Advocacy Sys., Inc.

v. Cotten, 929 F.2d 1054, 1058-59 (5th Cir. 1991) (holding

that facilities have an affirmative duty to implement

policies and practices that promote effective P&A access).

DRW repeatedly argues that it is circular to require that it

obtain authorization from the students or their representatives so that it may obtain the names of the students. That

argument is well taken, for imposing such a requirement

essentially means that DRW cannot satisfy the prerequisites for obtaining X without obtaining X itself.5

 In addition

to confounding DRW in the present case, requiring the

agency to obtain authorization before it can learn the

children’s names has the potential to run afoul of the

federal P&A statutes in some circumstances: without the

names of the children or their guardians, DRW cannot

assess whether their guardians are taking adequate

protective measures if abuse is imminent. That is, without

names, DRW could never intervene where guardians are
14 No. 05-4171

not protecting the individuals—a hazardous circumstance

expressly contemplated by the federal P&A statutes.

Here, DRW is not seeking unfocused and unspecific

information about possible abuse or neglect at Lincoln. This

is instead a situation where, based on news reports,

complaints and DPI’s investigation, DRW has probable

cause to believe that six identifiable children may have

been abused or neglected and is now attempting to ascertain whether that abuse did in fact occur. Two of the

students potentially placed in the seclusion rooms are

DRW’s clients. Their parents have authorized DRW to

obtain the records. But since DRW does not know who the

other four students are, it simply cannot investigate the

extent of any abuse or neglect. In addition, if DRW determines that future, serious abuse is imminent, it cannot

ascertain whether the threatened students are adequately

protected by their guardians.

There is another important aspect of DRW’s special

function as Wisconsin’s designated P&A agency in these

unusual circumstances. As we have explained, P&A agencies have a duty to serve individuals with disabilities or

mental illness. See, e.g., Ala. Disabilities Advocacy Prog., 97

F.3d at 497, 499. Because of that role, DRW is under an

especially significant duty of confidentiality. See, e.g., Wis.

Coalition for Advocacy v. Czaplewski, 131 F. Supp. 2d 1039,

1059 (E.D. Wis. 2001) (noting that nursing home patients

would suffer no privacy harm because “federal law requires

that WCA, as the Protection & Advocacy System, keep such

records confidential”).

Specific provisions of the federal P&A statutes reinforce

these conclusions. Both the DD Act and the PAIR Act bar

P&A agencies from disclosing information obtained from

client records to unauthorized parties. See 45 C.F.R.

§ 1386.22(e)(1)-(3). Although disclosure of the names

might not create a client relationship between the guard-
No. 05-4171 15

ians and DRW, this technicality would not diminish the

need for confidentiality. DRW specializes in the protection

of persons with disabilities and mental illness, and confidentiality is a key aspect of protection.

Likewise, the PAIMI Act imposes a specific duty of

confidentiality upon the P&A agencies in the context of

mental health records obtained from a provider of mental

health services. Although the PAIMI Act does not define

what constitutes a provider of mental health services,

DPI—an administrative agency—would not ordinarily

fall within the general understanding of that term. But DPI

is responsible for ensuring that the schools, which are

charged with the care of all children (including the mentally

ill), provide adequate care and in a larger sense is a provider of mental health services.

The district courts, in particular, have been remarkably

active and consistent in construing PAIMI’s duty of confidentiality. The clear message of these cases is the conclusion that the duty of confidentiality should be deemed to

require P&A agencies to maintain the confidentiality of

records regardless of their technical classification. See, e.g.,

Protection & Advocacy Sys., Inc. v. Freudenthal, 412 F.

Supp. 2d 1211, 1215-16 (D. Wyo. 2006); State of Conn. Office

of Prot. & Advocacy for Persons with Disabilities v. Hartford

Bd. of Educ., 355 F. Supp. 2d 649, 663-64 (D. Conn. 2005);

Advocacy Ctr. v. Stalder, 128 F. Supp. 2d 358, 366 (M.D. La.

1999); see also Ala. Disabilities Advocacy Prog., 97 F.3d at

497, 499. PAIMI might be one source of the duty of confidentiality, but it is not the only one. The P&A agencies’

nature as protectors of individuals with disabilities or

mental illness is critical and not to be overlooked. See Iowa

Prot. & Advocacy Servs., Inc. v. Gerard Treatment Programs, LLC, 152 F. Supp. 2d 1150, 1160-61 (N.D. Iowa

2001) (discussing PAIMI’s duty of confidentiality and

concluding that a guardian’s expressed unwillingness to
16 No. 05-4171

authorize a P&A agency to access records does not necessarily preclude that access).

The reasoning underlying these cases is persuasive, and

we conclude that DRW is subject to the same strictures

of confidentiality as DPI. Since both DRW and DPI must

observe similar confidentiality requirements, this case

at bottom involves a confidential exchange of information

between two agencies—one agency that specializes in

protecting individuals with disabilities or mental illness

and another more generalist agency charged with administering public education in Wisconsin. Given the

duty of confidentiality common to both organizations,

DRW’s possession of the information seems no more

troubling as a privacy matter than DPI’s possession.

Lastly, it is important to recognize the alternative to

allowing DRW to access the records at issue. DRW has

special expertise with respect to persons with mental illness

or other disabilities. To withhold the records in contention

here is to give the generalist agency (DPI) the last word

over matters of abuse and neglect of the disabled or mentally ill. This clearly defeats the purposes of DRW and the

federal P&A statutes.

We believe that the district court here gave inadequate

weight to the whole of the statutory scheme and undue

emphasis to a technical reading of certain statutory elements. United States v. Misc. Firearms, Explosives, Destructive Devices & Ammunition, 376 F.3d 709, 712 (7th Cir.

2004) (noting that a fundamental canon of statutory

interpretation is that the words of a statute must be read in

their context and with a view to their place in the overall

statutory scheme). The point of the federal P&A statutes is

to establish and equip a specialized agency to look out for

individuals with mental illness. Confounding the agency in

the name of an illusory concern for privacy defeats that very

important goal. Accordingly, we conclude that requiring
No. 05-4171 17

DRW to obtain authorization before it can learn the names

of the children DPI believes were placed in the seclusion

room violates both the spirit and the letter of the federal

P&A statutes.

C. FERPA’s Interaction with the Federal P&A Statutes

We finally consider whether FERPA operates to prevent

DPI from releasing the records it has assembled. FERPA

represents a response to what Congress saw as growing

evidence of abuse of student records in the United States.

See, e.g., Rios v. Read, 73 F.R.D. 589, 597-99 (E.D.N.Y.

1977). Of specific concern were incidents of access without informed parental consent, lack of a formal system

for governing access by nonschool personnel and failure

to disclose disciplinary information to parents. Address

to the Legislative Conference of the National Congress of

Parents and Teachers, March 12, 1975, 121 Cong. Rec.

S7974 (daily ed. May 13, 1975).

Relevant here, FERPA protects personally identifiable

information other than directory information from release

without parental consent. 20 U.S.C. § 1232g(b)(1)-(2) (2006).

Personally identifiable information includes, but is not

limited to, the students’ names, names of their parents or

other family members, the addresses of the students or

their family, any personal identifiers such as social security

numbers or student numbers, a list of personal characteristics that would make the students’ identities easily traceable or any other information that would make the students’ identities easily traceable. 20 U.S.C. § 1232g; 34

C.F.R. § 99.3 (2006). Directory information, on the other

hand, is a type of personally identifiable information not

usually considered harmful if disclosed. It generally

includes (but is not limited to) students’ names, addresses,

telephone numbers, major fields of study and dates of

attendance. 34 C.F.R. § 99.3.
18 No. 05-4171

Here again, the information that DRW seeks is not

easily classified. The students’ names would, in ordinary

circumstances, fall under the rubric of directory information. But as we explained earlier, the students’ names

here carry with them information about the students’

IEPs and disciplinary records, which ordinarily might

implicate FERPA if released to third parties.

This case, however, is not ordinary. As the Eleventh

Circuit has recognized, neither students with disabilities

nor their parents are harmed when a P&A agency is

permitted access to records. Tarwater, 97 F.3d at 497-99.

On the contrary, the P&A agency’s access facilitates protection of individuals with mental illness—it is the only way to

realize the agency’s role as watchdog of the system. Privacy

interests, then, are frequently outweighed by DRW’s broad

mandate to investigate and remedy suspected abuse or

neglect. Ala. Disabilities Advocacy Prog., 97 F.3d at 497;

Office of Prot. and Advocacy for Persons with Disabilities v.

Armstrong, 266 F. Supp. 2d 303, 319, 322 (D. Conn. 2003).

We note in closing that the details of release of information are important but difficult to anticipate and deal with.

They therefore lie within the discretion of the district court.

This case is complex, and although the students’ privacy

interests do not outweigh DRW’s need to access the information, neither should those interests be ignored when they

are implicated. In that vein, we recognize that a number of

specific release scenarios which would be consistent with

this opinion would, we think, satisfy the federal P&A

statutes.

III. CONCLUSION

Accordingly, we VACATE the judgment of the district court

and REMAND for further proceedings consistent with this

opinion. Each side shall bear its own costs.
No. 05-4171 19

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-13-06