Judges on a state appeals court based in Madison appeared skeptical Wednesday toward an effort from Wisconsin business groups to block the release of state health department data on businesses linked to COVID-19 cases.
The case is one of the most notable public records cases during the COVID-19 era in Wisconsin, and pits business’ right to privacy against the public’s right to information.
During oral arguments in the case, the District IV panel — consisting of Judges Michael Fitzpatrick, Brian Blanchard and JoAnne Kloppenburg — peppered the attorney for Wisconsin business organizations, including Wisconsin Manufacturers and Commerce and others, with intensive questioning centering around whether business groups have any stake in the release of records.
The arguments Wednesday centered around whether WMC and other groups had the right to bring their lawsuit.
The state of Wisconsin and Milwaukee Journal Sentinel argue that the business trade groups don’t have standing to bring their claim because they are not individuals whose health care records are at issue, and that the records are not health care records, but rather data summaries.
Ryan Walsh, the attorney representing WMC and other business groups, said the trade group does have standing to block the release of records because the data is derived from confidential medical records.
Judges on the appeals court panel appeared skeptical of whether the trade groups could, in fact, represent the interests of their employees.
“The employees might have a lot of different interests that might diverge from what you identify as the interests of the employers,” said Appeals Court Judge JoAnne Kloppenburg. “We don’t understand how you can be also taking on the mantle of speaking for the interests of the employees.”
Kloppenburg said some employees might want the public to know there have been a lot of COVID-19 cases where they’re working, and some may not.
The appeal comes after a Waukesha County judge sided with WMC and others by temporarily blocking the release of the records.
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 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.
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, 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 say the records contain no personal information, but rather they aggregate the number of reported cases associated with businesses.
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.
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.”