MADISON, Wis. (CN) — Lawyers for the Wisconsin state government, the state’s largest business lobby and press freedom advocates argued before the Wisconsin Supreme Court on Monday over whether the state can release records requested by a newspaper showing how many employees at some businesses contracted Covid-19 or had contact with someone who tested positive.
In the summer of 2020, in the earliest wave of the Covid-19 pandemic, the Milwaukee Journal Sentinel made an open records request for data showing how many employees at a given business had tested positive for the coronavirus, responding to large outbreaks at meatpacking plants and other businesses at the time.
The administration of Democratic Governor Tony Evers planned to release the information, which would have detailed the names of businesses with at least 25 employees who had at least two employees either test positive for Covid-19 or have contact with someone who tested positive.
Wisconsin Manufacturers and Commerce, or WMC, the state’s most powerful business lobby, sued in the fall along with the chambers of commerce of Muskego and New Berlin to block release of the records, claiming it would illegally publicize private health care information of individual employees and irreparably harm both the reputations and financial bottom lines of the businesses.
Waukesha County Circuit Court Judge Lloyd Carter promptly agreed with the commerce groups and temporarily enjoined the Evers administration from releasing the records. In denying later motions to dismiss from the Journal Sentinel and the state, the judge worried releasing the records would place a “scarlet letter” on businesses with Covid infections.
But a Wisconsin Court of Appeals panel reversed the circuit court in April 2021, finding the commerce groups had not proven a legally protectable interest or harm and had not overcome the bar to blocking the release of public records by a government authority.
The appellate court called it "sheer speculation" that individual employees could be identified by the two data points regarding any business in the records: that the business has at least 25 employees, and there are at least two positive Covid-19 cases or contact tracer investigations among employees.
The Wisconsin Supreme Court agreed to take on the case in August 2021, leading to Monday’s arguments over the nearly two-year-old records request.
Scott Rosenow, executive director of WMC’s legal arm, argued that between Wisconsin’s uniform declaratory judgments act, state public records law and the common-law right to seek declaratory relief before a public record is released, the commerce groups had standing to bring their lawsuit despite the state and Journal Sentinel’s insistence they do not due to exclusions in the relevant laws.
But Justice Brian Hagedorn questioned whether the groups were arguing for an absurd expansion to standing requirements, including those of taxpayer standing, saying Rosenow’s argument would essentially mean any taxpayer could challenge any illegal act by any government official, which “seems like a very different doctrine than any one recognized by our courts.”
Justice Rebecca Dallet disputed whether the contested records are even patient health care records—which have special legal protections regarding privacy—since they are just summary documents without names based on Covid surveillance information provided by the state Department of Health Services, or DHS, which the agency in part gets from health care providers and local health departments.
Rosenow retorted, “I don’t think the statute really would provide for much of a right to privacy if somebody could take a record that they’re entitled to have but prohibited from releasing and then just send out a big email with all of the content from that record summarized in an email.”
Assistant Attorney General Clayton Kawski said the justices did not even have to wade into the murky waters of legal standing because the case is one of straightforward statutory interpretation. Under such interpretation, the commerce groups have no case, he said.
Kawski’s reiteration of the limited information in the records did not satisfy some justices in terms of privacy, including Justice Rebecca Grassl Bradley, who offered the hypothetical of a business with 25 employees that had two employees out sick for unknown reasons who would then be known to have had Covid-19 when the records say the business had two cases.
She, as well as Chief Justice Annette Ziegler, were troubled with the idea that DHS could share with the state government an individual’s Covid test information without the individual explicitly being told so and that the law, according to Kawski, says each individual person would have to sue to block the release of that information, not an entity like WMC that represents member businesses which employ individuals.
The latter scenario “kind of defeats the purpose of confidentiality, doesn’t it?” said Ziegler.
Thomas Kamenick, president and founder of the Wisconsin Transparency Project appearing on behalf of the Journal Sentinel, said “there is no free-floating right to challenge the release of records” and that by challenging this records release, without proving it would be unlawful, the trade groups “have already achieved a major victory” by delaying release of the records for over a year and a half.
The high court gave no timetable for its decision at the close of arguments on Monday.
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