By Bridget Manley, publisher
According to court papers filed by James Madison University, it was not tracking COVID numbers in any kind of database during the largest peak of positive COVID-19 cases on campus at the start of the fall 2020 semester.
That information came to light during a hearing between Jake Conley, editor-in-chief of The Breeze and an attorney representing JMU in Rockingham County Circuit Court on Thursday morning. (Over the summer, Conley also contributed to The Citizen.)
Conley, who sued the university on behalf of the campus newspaper, was asking that JMU provide The Breeze with COVID-19 data in response to a FOIA request filed last year.
An affidavit filed as part of JMU’s response from the Director of the Office of Residence Life stated that during the time between August 17 and September 16, 2020, notifications of positive tests of students living in dorms were done via phone call and recorded into the students individual education records.
The affidavit went on to say that, “No record or database existed during that time which collected aggregate data about positive COVID-19 student test results from on-campus students.”
“We’ve now heard in open court what we’ve been thinking for a while; that during that big spike, there was no central tracking of location,” Conley said after the hearing. “That is, from a public health perspective, negligent.”
That information was at the center of a year-long battle between The Breeze and JMU about COVID-19 data broken down dorm-by-dorm during the worst peak of the pandemic on campus.
The case cast old arguments over individual privacy versus the public’s right to information in a new pandemic light, with the university citing its legal obligations to protect student privacy and the newspaper saying that the information it requested in August 2020 could have been essential in helping students and others on campus to make informed decisions about their own health during JMU’s surge.
The petition and the response
Part of Conley’s petition challenged JMU’s decision to hold back dorm-by-dorm positive COVID case data from the FOIA request.
During the hearing on Thursday, University Counsel Jack Knight said that JMU had made “a reasonable decision in good faith” to hold positive case location data for 30 days in order to keep student health information private. The university argued that if dorm-by-dorm COVID data had been published right away, the public could “link” other known bits of information to the data and better pinpoint students who tested positive with COVID-19.
Judge Bruce D. Albertson, who presided over the hearing, questioned that 30-day policy, noting that isolation after a positive COVID test typically lasted for less time. Knight responded that if nine students from the same dorm disappeared for the number of days it took to quarantine, they could have been identified if data indicated those nine cases had immediately been published.
Knight also said that instead of thinking about all 20,000 students at JMU, cutting down that number to just 300-500 students living in one dorm would have made it easier to identify those who tested positive.
Conley said that the dorm-by-dorm numbers could have been provided without “linking” students using other information.
“Five hundred people is a lot of people,” Conley said. “No, it’s not 20,000, but it’s still a lot. You get 500 people in a room, and you’ll have trouble finding one. I find it incredibly hard to believe that if we reported that there were one or two positive cases in a dorm of 300 people, that they could be recognized and definitively pointed to as testing positive for COVID-19. That, to me, is an impossibility.”
JMU, meanwhile, said that The Breeze’s FOIA request was for future records. The Breeze was seeking data that they requested be provided “on a daily basis moving forward.”
There is precedent of denial of FOIA records where records do not yet exist. In 2001, a the Virginia Freedom of Information Advisory Council issued an opinion that the New Market Town Council did not have to provide a reporter with future weekly documents under FOIA.
That opinion was given after citing remarks made by The Attorney General of Virginia in 1991. In those remarks, the Attorney General said that, “FOIA does not authorize a person to make a continuing request for public records that are not in existence at the time the request is made.”
JMU said that “daily records moving forward is not one that FOIA provides for and is not one that JMU is obliged to honor.”
2020 and the campus COVID time bomb
As students came back to campus last fall, stories of packed dining halls paired with skyrocketing cases led the university to move online and send home everyone living dorms a week after classes began.
Meanwhile, The Breeze wanted to find out where the cases were in order to provide meaningful public health information. The Breeze filed a FOIA request with the university in mid-August of 2020, asking for, among other data points, the number of positive student tests, broken down by the number per campus dormitory and the number of self-reported cases from off-campus students.
First citing the Health Insurance Portability and Accountability Act (HIPPA), JMU partially denied the FOIA request. They later cited the Family Educational Rights and Privacy Act, or FERPA, as the reason locational data could not be provided.
JMU began using a database to track and report COVID-19 cases campus-wide on daily basis on August 17, 2020. It did not, however, include data about dorm numbers and those living off campus.
Throughout that semester, The Breeze and JMU held several discussions about obtaining the information. The Breeze did not receive dorm-by-dorm and other locational data from the fall semester until January of 2021, months after it could have been of any relevance to immediate public health.
In addition, The Breeze was never given dorm-specific data for the August-September 17, 2020 window when COVID was raging through campus.
In part, Conley filed the petition in the hope that JMU will be required to provide detailed public health information in a timely matter in the future, so that those who are required to come back to campus to work and study can make the best health choices.
“If you are running a university and you weren’t prepared after seeing the summer that happened, and you weren’t thinking ‘we’re going to need to keep track of clusters,’ that is negligence.”
As the Delta variant rages through the country and more breakthrough cases are reported, Conley hopes that Judge Albertson will require the university to respond to future inquires of public health data more swiftly.
Albertson has 15 days to issue a ruling, which will be mailed to both parties.
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