A Wisconsin appeals court panel on Monday reversed a lower court order blocking the release of state health department data on businesses linked to COVID-19 cases, siding against a powerful Wisconsin business association.
The Madison-based 4th District Court of Appeals sent the lawsuit, brought by Wisconsin Manufacturers and Commerce against Gov. Tony Evers’ administration, back to circuit court with orders to dismiss it.
According to the state Department of Justice, the state can release the records in question once the court-imposed injunction is lifted, a process which involves a 30-day lag to give WMC and other business groups the chance to appeal to the Wisconsin Supreme Court, which they have vowed to do. The Wisconsin Supreme Court could prevent the release of the records if it takes up the case.
“We are disappointed with the court’s decision, but thankfully the lower court’s injunction still remains in place and will for the foreseeable future. In other words, the lists will continue to remain confidential while we pursue relief in the Supreme Court, which we will,” said Scott Manley, WMC Executive Vice President of Government Relations.
The case is one of the most notable public records cases during the COVID-19 era in Wisconsin, and pits businesses’ right to privacy against the public’s right to information. The appeals court panel involved in the case consisted of Judges Michael Fitzpatrick, Brian Blanchard and JoAnne Kloppenburg.
The state Department of Health Services since last summer had planned to release the names of more than 1,000 businesses with more than 25 employees where at least two workers have tested positive for COVID-19. That prompted an outcry from Wisconsin businesses, which said releasing such information to the Milwaukee Journal Sentinel and other media outlets that requested the information, including the Wisconsin State Journal, would have severe impacts on companies already struggling through the pandemic.
Gov. Tony Evers’ administration briefly reversed course, but the governor in the fall told reporters the administration planned to release the information in the near future, prompting legal action.
Wisconsin Manufacturers and Commerce, the state’s largest business organization, along with the Muskego Area Chamber of Commerce and New Berlin Chamber of Commerce and Visitors Bureau, filed a lawsuit in Waukesha County Circuit Court against Evers, then-Health Secretary Andrea Palm and Administration Secretary Joel Brennan, seeking to block the release of business names. The business groups allege the information they want blocked is derived from diagnostic test results and the records of contact tracers, and that such information constitutes patient health care records that must be kept confidential.
Attorneys for the state said the records contain no personal information but instead aggregate the number of reported cases associated with businesses. The appeals court panel referred to that fact as one of the reasons why it sided with the state and the Milwaukee Journal Sentinel. Kloppenburg wrote for the panel that remanding the case for dismissal was appropriate because WMC and others failed to show they have a legally protectable interest justifying concealment of the records. “We are not persuaded that the alleged harm to the reputations of the Associations’ member businesses could constitute an injury contemplated by these statutes, because the statutes are focused on individual patients and their health care records,” Kloppenburg said.A Waukesha County judge issued a five-day temporary restraining order preventing the state from releasing any business information. In December, the judge again extended a restraining order preventing the state health department from releasing the information.
An Evers spokeswoman didn’t respond to a request seeking comment.
6 lives disrupted: How COVID-19 changed Madison
The torrent of disruption to daily life over the past year has been inescapable.
Calendar squares filled with weddings and events cleared. Vacations vanished. Schools shuttered and hand sanitizer was in short supply. We learned new words, like social distancing, herd immunity and doomscrolling.
COVID-19 affected every person, every family. It's taken nearly 6,500 Wisconsinites from us, including 278 in Dane County.
Here are six stories from people whose lives and jobs changed over the past year.
“Reporting the death counts out day after day was draining,” she said. “It felt like I was announcing a funeral every day.”
"I was getting my work done from 9 p.m. to 3 a.m. every day," she said.
Rev. Marcus Allen knew what bringing everyone together could do for their spiritual and mental health. But each time he considered reopening the church, COVID-19 cases surged.
"We’re used to taking whatever comes through the door," said nurse Maria Hanson, who started journaling about the pandemic soon after treating the patient.
"It’s a risk vs. reward thing and I risk my life to save others," said Brandon Jones, who always worried about bringing the virus home to his wife and two kids.
“Usually a funeral is a major step in understanding that a life was lived and the person is now gone,” he said. “If families don’t get that, it’s just really hard.”