Judge rules names of teachers absent during sick-outs can be released

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By Gabrielle Porter

A Jeffco district judge ruled Friday that the school district should not be prevented from releasing the names of teachers who were absent during “sick-outs” last fall, rejecting the teachers union's claim that sick days should be protected as personnel data. 

District Judge Christie Phillips wrote that the days public school teachers call in sick cannot be considered personnel or private medical information, and that teachers should not expect a right to privacy concerning sick days.

The Jefferson County Education Association, which filed the lawsuit Feb. 18 against Jeffco Public Schools, contended that even though sick-leave records do not contain specific health data, disclosing them to the public could indirectly reveal private information. After sick-outs last fall prompted closures of four schools, including Conifer High, the district received open-records requests for the names of the absent teachers from at least two parents, one of which was granted. That led to the union’s legal action.

Attorneys for Jeffco Public Schools argued that records of sick leave don’t meet the definition of personnel records and that the Colorado Open Records Act requires release of the information.

Privacy vs. public's right to know

JCEA attorneys argued in the case that sick-leave records are part of confidential personnel files because they are maintained as part of the employer-employee record, while the school district countered that for information to be in a personnel file, it needs to be at the same level as home phone numbers and addresses. 

Phillips wrote that sick-leave records “are not the type of personal, demographic information that is contained in a person’s address, telephone number or financial information.”

She also said that, based on evidence brought forward in court, the information can be considered part of a compensation/benefits package, and therefore is a public record.

JCEA attorneys also asserted that sick-leave records can be defined as medical information. Phillips disagreed, however, saying the open-records requests didn’t seek the reasons for the absences.

The union also argued that teachers trying to protect their reputations could be forced to explain the absences to the public, including medical information. 

" … The court finds this is pure speculation and irrelevant to the issue of whether the sick leave records qualify as ‘medical’ under CORA,” Phillips wrote.

JCEA attorneys maintained that teachers should have a reasonable expectation of privacy in sick-leave records. Phillips wrote, however, that a public entity — like a school district — cannot adopt a policy with broader privacy protections than the Colorado Open Records Act allows. She added that a teacher's absence is known to a variety of people in any case. 

“A teacher's absence from school is not private — students, parents, colleagues and supervisors will know the teacher is not present,” Phillips wrote.

The union said releasing the names of teachers absent during the sick-outs could hurt those who were actually sick on those days. The teachers at the four schools said last fall that the sick-outs were staged to raise community awareness about the school board’s proposal to review the Advanced Placement History curriculum. Teachers had also been protesting the district’s recently implemented pay-for-performance compensation plan.

The JCEA has two weeks to appeal Phillips’ decision. Union representatives did not respond to comment before the print deadline.

The school district won't release any names until after the two weeks have elapsed.

Contact Gabrielle Porter at gabrielle@evergreenco.comor 303-350-1042.