Last week, the Wisconsin Supreme Court ruled in favor of the state in a case involving the release of a list of businesses with multiple COVID-19 cases among employees. The case originated during the early months of the pandemic during a time of much greater uncertainty surrounding the disease, and before the Wisconsin Legislature enacted COVID-19 liability protections for businesses and other entities.
In 2020, the state Department of Health Services (DHS) created a list of Wisconsin employers with 25 or more employees where at least two employees had tested positive for COVID-19. The report was based on testing and contact tracing data compiled by DHS. The Milwaukee Journal Sentinel submitted an open records request to DHS seeking release of the list, and as a courtesy DHS notified Wisconsin Manufacturers & Commerce (WMC), the state’s chamber of commerce and largest business trade association, about the pending release.
WMC and two local chambers sued under the Declaratory Judgements Act, seeking an injunction against the release of the list, arguing that:
- The release of the list would allow for the identification of employees at some of its member businesses.
- Because the report was derived from patient health care records including diagnostic test results and contact tracing data, it must be kept confidential.
- The public records law’s balancing test prevented disclosure because releasing the list would injure the reputations of WMC member businesses and violate their employees’ right to privacy.
A Waukesha County judge agreed with WMC, immediately issuing a temporary restraining order and later ruling in favor of WMC and enjoining the state from releasing the records.
On appeal, the court of appeals reversed, agreeing with the state and the Journal Sentinel that WMC lacked standing to sue because it did not have a legally protected interest in the case. In particular, Wisconsin’s patient health records law provides a cause of action only for individuals and not for an association or its members.
The Wisconsin Supreme Court affirmed the court of appeals, reasoning that the “public records law’s general prohibition on pre-release judicial review of decisions to provide access to public records bars WMC’s claims.” The majority opinion focused on the procedural issues of whether WMC had standing to file suit and whether any relief was available to WMC under the provisions cited by the chamber.
The case was decided by the Wisconsin Supreme Court on a 4-3 margin, with the conservative-leaning but frequent swing vote Justice Hagedorn joining the court’s three liberal justices. Justice Dallet wrote for the majority, while Chief Justice Ziegler filed a dissent joined by the court’s two other conservatives.
We previously covered this case in the following articles: