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Wisconsin justices OK release of employer coronavirus data to newspaper

In part citing patient health care privacy law, pro-business groups fought release of the records, which show how many employees from businesses of a certain size contracted Covid-19.

MADISON, Wis. (CN) — The Wisconsin Supreme Court on Tuesday ruled the state’s largest business group cannot block the state from releasing records a newspaper requested showing how many employees at some businesses tested positive for Covid-19 or had contact with someone who tested positive.

The Milwaukee Journal Sentinel requested records in the summer of 2020 about some Wisconsin employers’ coronavirus activity, responding at the time to large outbreaks at meatpacking plants and other businesses. The administration of Governor Tony Evers, a Democrat, planned to respond with the release of a list of businesses with at least 25 employees who had at least two employees either test positive or have contact with someone who tested positive.

Wisconsin Manufacturers and Commerce, the state’s largest business lobby, sued one day before the planned release along with two local chambers of commerce, seeking to block publicizing the records based on claims it would illegally make employees’ private health care information public and irreparably harm both the reputations and financials of the businesses.

Waukesha County Circuit Court Judge Lloyd Carter sided with WMC and temporarily enjoined the state from releasing the records. He denied later motions to dismiss from the Journal Sentinel and the state because he worried releasing the records would place a “scarlet letter” on businesses with Covid infections.

A Wisconsin Court of Appeals panel thought differently and 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 case then moved to the Wisconsin Supreme Court, where arguments were held in February.

Writing for the high court’s 4-3 majority Tuesday, Justice Rebecca Dallet found that because Wisconsin’s public records law generally prohibits judicial review of a decision to release records before they are released, the court of appeals correctly found WMC’s claims are barred.

Dallet dispensed of WMC’s arguments that prerelease judicial review is available under the Declaratory Judgments Act or common-law rights to prerelease notice and judicial review, finding that none of the exceptions in the applicable laws apply to WMC and that the relevant statute limiting the right to prerelease notice and judicial review “makes clear that no one has a right to block the release of a public record unless otherwise specified.”

Dallet was joined in the majority by fellow liberal Justices Ann Walsh Bradley and Jill Karofsky, as well as conservative swing-voter Justice Brian Hagedorn.

Chief Justice Annette Ziegler, joined by right-leaning Justices Rebecca Grassl Bradley and Patience Roggensack, dissented on Tuesday, first of all charging that both the appellate court and now the high court prematurely dismissed WMC’s case while it had a motion to amend its pleadings pending before the circuit court.

Removing the case while WMC’s motion to file a second amended complaint—which would have added two anonymous individual employees of businesses of at least 25 employees who tested positive for Covid-19—was still pending with the circuit court “short-circuited the standard judicial process and deprived [the commerce groups] the ability to present their full case on the merits,” Ziegler said, calling such a move by the court of appeals “extraordinary and clearly erroneous.”

Beyond the improper dismissal of the case, Ziegler argued the majority had haphazardly allowed for the release of the employers’ coronavirus data “with little analysis of the serious implications of its decision.” Ziegler said the majority had now “close[d] the courthouse doors to anyone who may wish to challenge the release of personal medical information,” calling that an “egregious error.”

The chief justice lamented that the private health care information of anyone—whether a cancer patient, someone who suffered a miscarriage, or a sex crime victim, among other examples—is now fair game for public release with the help of the government, and releasing that information causes irreparable harm because once it is public, it cannot again be made private.

“This court has permitted the weaponization of private health information, so long as the government has gathered that information. It has also incentivized gamesmanship by dismissing a lawsuit on procedural grounds before the plaintiffs have had a full and complete opportunity to amend their complaint and provide arguments on the merits. This is a dangerous course for the citizens of the state of Wisconsin,” Ziegler concluded.

Kurt R. Bauer, president and CEO of WMC, voiced his disagreement with the majority’s decision in a statement Tuesday.

“The governor’s attempt to shame and embarrass Wisconsin businesses is wrong, and the Supreme Court is equally wrong to allow it,” Bauer said.

The Wisconsin Department of Justice could not be immediately reached for comment on the high court’s ruling on Tuesday. Tom Kamenick, president and founder of the Wisconsin Transparency Project who represented the Journal Sentinel in the lawsuit, also did not immediately provide comment.

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