Breeze editor calls legal ruling ‘a move away from transparency’

Screenshot from JMU’s Covid-19 Dashboard showing the large spike in cases early in the Fall 2020 semester. A legal battle between the campus newspaper’s editor-in-chief and the university over the release of more detailed case information ended with a judge ruling in favor of the university.

By Bridget Manley, publisher

Following a ruling against him in early OctoberThe Breeze’s Editor-in-Chief Jake Conley says he’s worried moving forward about how much information university officials will or will not provide to journalists in the interest of public health.  

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.

“In my opinion that really does give the school a pretty wide discretion, and that sets a pretty large precedent for the university in how it moves forward with data governance and data release, and working with future journalists,” Conley said. “That really kind of solidifies the power that they have, and gives them something to fall back on if people ever try to push back on the timeline that they think is unreasonably long.” 

First citing the Health Insurance Portability and Accountability Act (HIPPA), JMU partially denied the FOIA request. The university later cited the Family Educational Rights and Privacy Act, or FERPA, as the reason locational data about on-campus COVID cases could not be provided. Part of Conley’s petition challenged JMU’s decision to hold back dorm-by-dorm positive COVID case data from the FOIA request.

University officials said they declined to release more dorm-specific information in order to protect the privacy of students living on campus, arguing that individual students’ identities could have been easily matched up to more detailed case data. Judge Bruce Albertson agreed, siding with the university. 

Harrisonburg City Schools release COVID school-by-school positive case information and isolation numbers information on a daily basis on a public dashboard on their website. Conley says that many of the schools in the city are no bigger than the larger dorms on campus. 

“Some of those schools are maybe 50 kids more than the dorms. Barely bigger at all,” Conley said.

Conley says that JMU doesn’t understand the unnecessary nature of a 30-day timeline when other public institutions can give similar information to the public daily. 

Harrisonburg City Schools Superintendent Michael Richards said that city schools “are definitely not” violating FERPA by releasing COVID positive cases and isolation numbers on a school-by-school basis. 

Richards said he does not know enough about JMU’s policies to comment on the case Conley brought against the university.

One aspect of compliance with FERPA, according to Richards, is not identifying a small enough group of people that someone could draw conclusions through casual observation of the data.

If a school dashboard showed 10 students in quarantine, for example, a casual observer would not conclusively be able to tell who they were were, because students are always out for a variety of different reasons, Richards said.

“There might be kids on vacation, there might be kids who are out for another illness, so the ten kids who are in quarantine are not going to be readily identifiable by the casual observer,” he said.   

JMU spokesperson Mary-Hope Vass says that while the city schools may have reached a different conclusion about FERPA and how to publicize COVID-19 case data, the university stands behind its decision not to release dorm-by-dorm information. 

“I cannot speak to the decisions made by Harrisonburg City Public Schools with respect to the disclosure of COVID-19 related data,” Vass said in an email. “I am not familiar with their analysis of various facts and applicable law. Different educational agencies may reasonably reach different conclusions depending on their specific circumstances. The critical point here is that JMU’s decisions with respect to the disclosure of its student COVID-19 data was affirmed by the Court.”

The court case was brought almost exactly a year to the day after the The Breeze filed a Freedom of Information Act Request for COVID data broken down dorm-by-dorm, during the worst spike of COVID the university experienced during the length of the pandemic. 

“It’s complicated, because I knew when we walked out of court, I had already won. The school had to admit that they weren’t tracking cases, and that was what we spent a year going after. That was priority #1 for me,” Conley said. “That is a huge win. I will never not consider that a win.”

Conley hopes that the university will be more transparent in the interest of public health, but is skeptical. He believes the court’s decision will give JMU more precedent to withhold information that may be necessary for public health. 

“It’s a move away from transparency,” Conley said. “My biggest concern with this ruling is that it does set a pretty dangerous precedent for the university to say, ‘look, the courts have already given us a pretty wide discretion on how we release data,’ so maybe they extend that period in the future, maybe they make it twice as long.”

Vass said that JMU was happy with the court’s decision, which “confirmed that the University did not violate the Freedom of Information Act.”

“Just as it did in this matter, moving forward, JMU will continue to honor its obligation to provide proper access to public records while honoring the need to protect student privacy,” Vass said. “I would note, in particular, that in issuing his ruling, Judge Albertson considered all aspects of the University’s response to the relevant FOIA request, including what records the University shared and the timing of when we shared it.”

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