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Wisconsin Manufacturers and Commerce v. Evers

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  1. Freedom of Information

Court: Circuit Court of Waukesha County, Wisconsin

Date Filed: Nov. 6, 2020

Update: In a bench ruling issued on Dec. 1, the court denied motions to dismiss submitted by the state of Wisconsin and the Milwaukee Journal Sentinel and granted the plaintiffs’ temporary injunction enjoining the Department of Public Health from releasing the records at issue. On appeal, the Reporters Committee and 13 media organizations urged the Wisconsin Court of Appeals to reverse the lower court’s decision and to direct that the case be dismissed. In a friend-of-the-court brief filed on March 12, the media coalition argued that the business groups’ lawsuit is impermissible under Wisconsin’s Public Records Law, and that timely access to information required to be disclosed under the Public Records Law serves the public interest, especially during a public health crisis. On April 5, the Wisconsin Court of Appeals held that the state of Wisconsin and the Journal Sentinel are entitled to dismissal of the case with prejudice. The court concluded that the trade associations failed to state any claim upon which relief could be granted; specifically, because the trade groups failed to allege that release of the records would harm any legally protectable interest, declaratory judgment is unavailable to them. The court also ruled that the Wisconsin Public Records Law prohibited the suit, and the trade associations cannot identify any exception to that prohibition that applies to them.

Background: After receiving public records requests, the Wisconsin Department of Public Health decided to release records containing the names of businesses with at least 25 employees where at least two employees tested positive for COVID-19 or had close contacts that were investigated by contact tracers.

In response, Wisconsin business groups filed suit to prevent the release of the records. They were granted a temporary restraining order until Nov. 30, temporarily halting the release of the records. The governor of Wisconsin and other state defendants oppose the plaintiffs’ attempt to prevent them from disclosing the records. The Milwaukee Journal Sentinel also intervened to argue that the suit should be dismissed, which would allow the records to be released.

The plaintiffs argue that releasing the requested information would harm Wisconsin businesses and violate patient confidentiality laws, citing a Wisconsin statute that prohibits the release of healthcare records that identify individual patients.

Our Position: The court should deny the plaintiffs’ motion for a temporary injunction and dismiss plaintiffs’ lawsuit.

  • Records reflecting the names of businesses whose employees have tested positive for COVID-19 implicate no exemptions to the Public Records Law nor any other bar to disclosure.
  • Wisconsin does not prohibit the disclosure of healthcare records that do not identify individual patients.
  • The public interest in disclosure outweighs any public interest in nondisclosure. Access to records that illuminate COVID-19’s effect on local communities is a matter of public interest, and the press must have access to this information to provide the public with information about the current public health crisis.

Natalie Harris from Baron Harris Healey is serving as the media coalition’s local counsel in this matter.

Quote: “Access to public records that communicate the scope of the coronavirus pandemic’s toll on local communities — including at local businesses — will educate and inform Wisconsinites as they make decisions about daily life during the pandemic, and evaluate the performance of government officials in response to the novel coronavirus. And the news media plays a central role in communicating information about COVID-19 to the public, often relying on information gleaned from public records.”

Related: Earlier this year, Reporters Committee Legal Fellow Gunita Singh advised journalists at the 2020 Investigative Reporters and Editors conference on accessing public records during the COVID-19 pandemic. Singh emphasized that HIPAA’s privacy rule does not apply to de-identified or aggregate data, an important distinction that the Reporters Committee outlined in its journalists’ guide to HIPAA during the COVID-19 health crisis.

Aside from the HIPAA guide, the Reporters Committee has published a resource compiling information about press freedom and government transparency during the COVID-19 pandemic.