On Aug. 20, just under one month ago, I wrote a letter to our readers explaining my decision to file a lawsuit against the university on behalf of The Breeze. Now, Sept. 16, I’m writing to say our petition was denied — point blank, we lost.
Aug. 26, I went before Judge Bruce D. Albertson in the Rockingham County Circuit Court and argued that if JMU had daily COVID-19 case data broken down by location from Aug. 17, 2020, through Sept. 16, 2020 — a period in which JMU saw a 1,375 case spike, its biggest yet — it needed to release those numbers. Its privacy claim, I argued, was illegitimate.
In open court, the truth finally came out. JMU was not centrally tracking cases by location during the period of the worst spike in cases the university has seen yet. After a summer of watching case counts skyrocket worldwide, JMU’s leadership brought 20,000+ students back without a system for centrally cataloguing cases by location and tracking case clusters.
Regardless of what the court records say, we won.
The goal of this entire suit was and is very simple: We believe the public has a right to know this information, so we went to court to get it. We went to court to inform our readers and to do our job as a news organization — as journalists.
On Aug. 26, when JMU lead counsel Jack Knight spoke in court, when JMU submitted Office of Residence Life director Kevin Meaney’s affidavit confirming case data was kept in individual student records and not a central location, transparency won. Accountability won. The public won. Every single member of the JMU community won.
However, JMU also won that day and not just in technicality. The second part of my argument was that JMU’s 30-day delay in releasing this data going forward is illogical and stands on a student privacy argument that’s illegitimate.
As the university’s argument goes, if The Breeze publishes that there were two positive cases recorded for a residence hall (many of which on campus hold several hundred people) a minimum of five days later due to allowed delay under the Virginia Freedom of Information Act, that data will identify those two students.
I argued that was an illegitimate claim. However, Judge Albertson ruled that it was reasonable.
This sets a dangerous precedent for the free flow of information from the university to its public. Not only does this directly apply to this case and this data, but this gives the university room to set outer limits for data release in response to future journalists who come after us, both at The Breeze and elsewhere.
That, in all of this, is the loss we’ve taken here. The Family Education Rights and Privacy Act allows the university to set a timeline based on its own assessments of privacy disclosures, but when this data is released 30 days later, JMU’s community can no longer make informed, meaningful decisions about their health based on that data.
It’s important to note here that Harrisonburg County Public Schools publishes its case count by school on a daily basis. Some of the dorm buildings at JMU are comparable in size to the head counts of the schools, and that data is still published daily.
Harrisonburg is releasing the exact same data we’re asking for, and it’s releasing those datasets daily. JMU says it needs 30 days.
We won Aug. 26. The university was forced to be held accountable for its actions in not tracking locational data until after its worst spike had faded. But it cannot be forgotten that a precedent has been set — one that gives the university wide-ranging control over its data disclosure, one that restricts the flow of information.
It reduces the power of the press, and it reduces the power of the people.