More than a year after Wisconsin’s largest business lobby sued to stop the state from releasing data on companies with COVID outbreaks, a narrowly divided Wisconsin Supreme Court on Tuesday ruled in favor of releasing the records.
The majority opinion, written by Justice Rebecca Dallet, asserts that Wisconsin Manufacturers & Commerce did not have the right to challenge the state health department’s authority to release public records.
The state legislature in 2003 limited when people can challenge the release of public records to a few clearly defined circumstances after a number of high profile cases in which teachers accused of having sex with students tried to stop the release of their personnel records. The slew of subsequent lawsuits bogged down the open records process in local government so much that it essentially defeated the intent of the open records law.
“WMC’s position would undo the legislature’s choice to preclude pre-release judicial review in most circumstances,” Dallet wrote.
The ruling was 4-3, with conservative Justice Brian Hagedorn siding with liberal Justices Dallet, Ann Walsh Bradley and Jill Karofsky.
The data in question, which was requested by the Milwaukee Journal Sentinel from the state health department in June 2020, is now two years old. The court battle has held up the release of the records for more than a year, a situation which attorneys for the state called “absurd.”
The newspaper filed the records request after meatpacking workers and nursing home residents told reporters that employers had left them in the dark about outbreaks at their facilities, putting them and their families at risk.
WMC sued to stop the state health department from releasing the data in October 2020, arguing that it would “irreparably harm” the reputations of their members. The Wisconsin Supreme Court agreed to pick up the case in August.
In a strongly worded dissent, Chief Justice Annette Ziegler said the majority opinion had “short-circuited the standard judicial process” and “permitted the weaponization of private health information, so long as the government has gathered that information.”
Her dissent, which was joined by Justices Rebecca Bradley and Patience Roggensack, claimed the appeals court improperly intervened in the case while the business lobby was still trying to amend their complaint to add two individuals who believed the the release of the data would violate their privacy.
In a statement, WMC president and CEO Kurt Bauer echoed the dissenting judges, stating the decision “has opened the door to massive public intrusion into private medical records.”
“The governor’s attempt to shame and embarrass Wisconsin businesses is wrong, and the Supreme Court is equally wrong to allow it,” Bauer said.
Wisconsin Transparency Project attorney Tom Kamenick, representing the Journal Sentinel, pushed back on the idea that the records would harm the reputations of businesses or individuals.
The records in question contain the names of roughly 1,000 businesses that saw two or more employees either test positive or identify as close contacts. The state Department of Health Services has emphasized that it chose to limit the data to companies with 25 or more employees to make it implausible for any individuals to be identified.
“No personal medical information is being released,” Kamenick said. “All that’s being released is a list of large businesses where two employees either had COVID or were identified as close contacts. It doesn’t even indicate that anybody at that business ever had COVID.”
Bill Lueders, president of the Wisconsin Freedom of Information Council, said the dissenting opinion irresponsibly stokes unfounded fears.
The decision “merely affirms that statistical information gathered by the state about outbreaks at businesses is public information,” Lueders said.
The Journal Sentinel requested the COVID-19 data to try to understand whether the people most vulnerable to the disease were being properly protected by employers.
A Journal Sentinel investigation published in July 2020 showed how meatpacking companies failed to take adequate safety measures as the virus spread to hundreds of employees, mostly Latino immigrants. Outbreak data later released by Brown County’s local health department proved that Wisconsin food processing plants were linked to more COVID-19 cases than previously disclosed, including four deaths.
“We did not request and the state would not provide names or personal health information,” said Journal Sentinel Editor George Stanley. “Those who claim otherwise are just raising red herrings.
“We were simply looking for where people were doing a good job at keeping essential workers safe during the pandemic, and where they weren’t,” Stanley said. “For example, we found that at least 11 workers died at one green bean plant operated by Seneca Foods — one of the deadliest coronavirus outbreaks in the U.S. food processing industry.”
The Journal Sentinel also revealed how nursing homes in Milwaukee County failed to disclose deadly coronavirus outbreaks to residents and family members. Local health departments also refused to release the data, backtracking months later when the federal government began requiring skilled nursing facilities to publicly report cases and deaths.
One of the main roles of public health departments is to gather health information about communicable diseases and convey that information to the public so that outbreaks do not spread further. Medical providers are legally required to report the discovery of diseases like E. coli, measles and SARS to public health officials.
Dr. Georges Benjamin, executive director of the American Public Health Association, said transparency about outbreaks also enables people to judge and manage their own health.
“They can decide, if they have symptoms, to monitor themselves. Some people get vaccinated. If they have someone who’s immunocompromised at home, they might behave differently. It overwhelmingly benefits the public,” Benjamin said.
Benjamin said the knowledge gathered over the course of the pandemic has only further supported that position, now that scientists know how much asymptomatic spread drives COVID-19.
It is unclear whether WMC will appeal or how soon the data will be released. It is unlikely that the case would make it to the U.S. Supreme Court.
The Wisconsin Supreme Court’s decision marks yet another case in which Hagedorn, elected in 2019, has joined liberal justices to form a 4-3 majority.
Unlike his conservative peers on the court, the WMC did not pour millions into his 2019 campaign for Supreme Court.
Milwaukee Journal Sentinel political reporter Molly Beck contributed to this article.
Contact Daphne Chen at dchen@gannett.com. Follow her on Twitter at @daphnechen_.
