ESD Dashboard - Weekly Symptom Overview:
In support of monitoring the health and safety of our students and employees, the Edgerton School District applies the Rock County COVID-19 Symptom Tracking Tool to document COVID-19 positive cases and symptomatic students and staff on a daily basis. The purpose of this tool is to track student and staff illness that present COVID-like symptoms and to track positive cases. However, based on advice of legal counsel, and to prevent a possible FERPA/ADA violation and to protect the privacy rights of students and staff, the District will only disclose via our website the total number of COVID-19 confirmed positive cases in the District. This will be updated on Wednesday of each week to mirror the Rock County Dashboard Update. Each weekly update will be the result of Monday-Friday of the previous week.
From Boardman & Clark LLP:
You have asked for our opinion regarding what concerns there might be in releasing COVID positive data to the public or others. We understand the District desires to be transparent and assure the public that the District is operating in a safe manner. However, privacy rights of students and staff should be taken into account and in our view should take precedence.
Our major concern is that if you have one case (either staff or students), that one case could lead to identifying that person publicly. For example, in the case where a teacher is out for 2 weeks and the District sends some sort of communication identifying the building or even a general release that one staff member in the District has tested positive, it could immediately lead to that teacher being identified as the person with COVID. The same thing for a student. If that kid is out for 2 weeks, everyone else could immediately identify that student and the diagnosis.
Employees have specific rights under the Americans with Disabilities Act (ADA) to have medical information protected. This would include any information about a disability, diagnosis, etc., or any medical documentation concerning such issues. As you know, the ADA requires such information to be kept in a separate personnel file with restricted access.
For students, they have rights under FERPA and the State student’s records statute (Wis. Stat., Sec. 118.125), to have personal information protected. This includes “Pupil physical health records" which are defined broadly in Wisconsin law. Direct communications to individual students are also a part of that student's record.
Obviously, if the number of positive cases increases it becomes more difficult to identify specific individuals, but not that much more difficult. It might be different if the District closes completely to in person instruction or if a particular school building closes because then everyone is at home and people will not be able to tell if a “specific” person is missing. Even then, if you close a building, it would be more prudent to only state you had X number of cases in a building rather than say something like three 4th graders tested positive.
For those families who need to know, they should be communicated with directly, which we know you are doing. FERPA rights for students and ADA rights for staff should prevail in all communications. The District should avoid creating communications that result in others then trying to speculate "who" might be positive. By putting too much information on your Dashboard you increase the risk of individuals being identified.
We believe this position is also consistent with the District’s obligations under the Public Records law. The Public Records law has long recognized that “records” do not need to be released if a specific individual might be able to be identified and that individual has a privacy right that, on balance, outweighs the public right to know the identity of the individual.