Appeals court hears lawsuit over COVID-19 outbreak data
Lobbyists sue to keep names of businesses from being released
A Wisconsin appeals court heard arguments Wednesday over a lawsuit regarding the release of data on businesses linked to COVID-19 cases — records first requested by the Milwaukee Journal Sentinel more than nine months ago.
Wisconsin Manufacturers & Commerce, the state’s largest business lobby, sued in October to stop the release of the information to media outlets, arguing that disclosure of the information would “irreparably harm” businesses.
The Madison-based District IV Court of Appeals agreed to take on the case after a Waukesha County circuit judge sided with WMC and temporarily blocked the state health department from releasing the data.
The arguments Wednesday — heard by judges Brian Blanchard, Michael Fitzpatrick and JoAnne Kloppenburg — revolved around whether the business lobby has the right to bring the lawsuit due to privacy concerns of business owners and their employees.
The records in question contain the names of roughly 1,000 businesses that employ at least 25 people or are public-facing, and how many coronavirus cases or close contacts were associated with the company. How DHS defined “public-facing” is unclear, according to lawyers for the WMC.
Lawyers for the Journal Sentinel and the state have argued that the business lobby is not one of the groups awarded the right to challenge the release of public records as defined by the state Legislature.
However, on Wednesday, WMC attorney Ryan Walsh argued that the organization has the standing to sue because the data — which does not contain the names of people — is derived from confidential medical records.
“It can’t be that any record in the government’s possession is an open record,” Walsh said. “(The state) has all kinds of records that can’t be released. What I’m asking the court to consider is the broad implications of this case.”
Judges Kloppenburg and Fitzpatrick questioned Walsh on whether the WMC can speak for businesses who are not members of the association, and whether the WMC represents business owners or employees.
“We don’t understand how you can be also taking on the mantle of speaking for the interest of the employees,” Kloppenburg said, adding that some employees “might want the public to know that there have been a lot of COVID cases where they’re working.”
Throughout the pandemic, the Journal Sentinel has investigated the lack of transparency at businesses and
care facilities. Many workers at food processing plants or family members of nursing home residents told the Journal Sentinel they learned about outbreaks and deaths through coworkers or word of mouth.
Wisconsin Transparency Project attorney Tom Kamenick, representing the Journal Sentinel, called the case a “major concern in the open government transparency community.”
“They say justice delayed is justice denied,” Kamenick said. “I say that records delayed is truth denied.”
The lawsuit is also holding up a separate public records request made by the Journal Sentinel in June for all data on coronavirus in nursing homes and other long-term care facilities.
Transparency concerns in those facilities re-emerged in recent days after state health officials said 1,000 coronavirus-related deaths previously marked as having occurred in “unknown” settings in fact took place in long-term care facilities.
The discovery prompted Republican state lawmakers to demand more transparency. On Friday, Assembly Speaker Robin Vos said that “if more people would have known that almost half the deaths were in nursing homes, we would have (done) a better job prioritizing nursing homes.”
DHS officials said in December that they were unable to release the longterm care facility data to the Journal Sentinel due to the ongoing WMC case, and said the matter had been referred to the state Department of Justice.
The appeals court is expected to issue a decision on the lawsuit within weeks. However, it is likely the case will be appealed to the state Supreme Court.
If the courts allow for the release of records, it is unclear whether the state health department plans to update the data, which was compiled in October.
“I have not talked about that with my client,” said assistant attorney general Clayton Kawski, representing the state. However, he added, “It does make sense to update the records because they’re outdated at this point.”