The Wisconsin Supreme Court could soon rule in a lawsuit brought more than a year ago challenging the state’s ability to release information on businesses linked to COVID-19 cases.
The state Supreme Court on Monday heard oral arguments in the case, filed in October 2020 by Wisconsin Manufacturers and Commerce, the state’s largest business organization, after the state Department of Health Services announced plans that summer to release information pertaining to positive COVID-19 cases at businesses in order to comply with public records requests from media outlets.
“My client requested these records almost two years ago now, the government custodian agrees that the records should be released, and yet the plaintiffs have been able, without ever proving yet that the release of these records would be unlawful, to delay that release for over a year and a half,” said attorney Thomas Kamenick, president and founder of the Wisconsin Transparency Project, which is representing the Milwaukee Journal Sentinel in the case.
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WMC, along with the Muskego Area Chamber of Commerce and New Berlin Chamber of Commerce and Visitors Bureau, filed the lawsuit in Waukesha County Circuit Court to block release of the records after DHS announced plans to release the names of more than 1,000 businesses with more than 25 employees where at least two workers had tested positive for COVID-19.
Wisconsin businesses said releasing the information to the 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.
“The association’s member businesses are at great risk of reputational and financial harm if these records are released,” WMC attorney Scott Rosenow said.
A Waukesha County judge issued multiple restraining orders in 2020 preventing the state health department from releasing the information. The Fourth District Court of Appeals eventually reversed the lower court’s decision last April, prompting WMC’s appeal to the state Supreme Court.
The business groups also 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.
“The only thing I hear you talking about is medical records and I don’t see where WMC has any right in medical records,” conservative Justice Patience Roggensack said to Rosenow. “I feel your pain for your members in not wanting to release the documents, but I don’t see where WMC has a right to have a declaration made about medical records.”
Clayton Kawski, an attorney for Gov. Tony Evers, said the requested information was gathered through statewide reporting during the early months of the pandemic and only entails the names of businesses and total number of cases at each establishment.
“These are not personal health care records,” Kawski said.