The Breeze received an email from Caitlyn Read, university spokesperson and director of communications, Wednesday saying that parts of a Freedom of Information Act (FOIA) request filed repetitively by The Breeze on Aug. 20, 24 and 25 had been denied. The FOIA request asked directly about daily COVID-19 numbers from the university.
Case numbers in the JMU community continue to rise, and the university continues to refuse to provide specific information on where cases are located, citing the Health Insurance Portability and Accountability Act (HIPAA).
In the FOIA request, The Breeze asked for the following:
Number of tests administered
Number of positive student tests, broken down by number per campus dormitory and self-reports from off-campus students
Number of negative student tests
Number of positive faculty/staff tests
Number of negative faculty/staff tests
Number of students in quarantine or isolation
In the university’s response to the FOIA request, Read said that while numbers of tests administered, positive student tests, negative student tests, positive faculty and staff tests, and negative faculty and staff tests are available on JMU’s COVID-19 dashboard, the university is unable to break down the numbers of positive student tests by on-campus residency or off-campus classification because “per federal patient privacy law (HIPAA) [the university] cannot release personally identifiable health information, including demographic information.”
However, Megan Rhyne, executive director of the Virginia Coalition for an Open Government, denied the validity of the school’s denial, saying that because the sample size of a dormitory or an off-campus designation is too large for case numbers to identify certain individuals, she doesn’t agree with the school’s use of the healthcare privacy law as a deterrent to releasing locational data for on-campus positive cases. Additionally, Rhyne said, because the university as a whole may not qualify as a healthcare provider, the use of HIPAA to deny The Breeze’s FOIA request at all is on questionable grounds.
“If you ask how many students are getting free and reduced lunch, and you find out there are only seven kids … out of 10, it’s pretty easy to figure out who’s who, but that concern is generally lessened quite a bit when you have larger sample sizes,” Rhyne said. “Definitely a dorm full of people, that’s not what [HIPAA and FERPA, a privacy law covering educational records] are talking about.”
Rhyne further stated the following in an email to The Breeze:
“The university as a whole is not a healthcare provider and, even if they could be considered one, The Breeze is not asking for personally identifying information (PII), which is what the Privacy Rule in HIPAA protects … Sharing numbers of cases is not invading anyone's privacy .... In the [Family Educational Rights and Privacy Act (FERPA)] setting, a guidance document considers it inappropriate when the group is in the single-digit, not a dorm with possibly hundreds of students.”
Additionally, precedent exists for the release of positive case numbers broken down by on-campus residency. The University of Northern Carolina at Chapel Hill’s COVID-19 dashboard lists out residence halls where cases are located, in a similar manner to the request made by The Breeze.
As of Thursday afternoon, JMU’s COVID-19 dashboard reports 124 positive cases, with 15 tested at the University Health Center and 109 self-reported.
Despite the FOIA request denial, The Breeze will continue to demand transparency from JMU.
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