Judge allows lawsuit over virus data to continue
Concerns over giving businesses ‘scarlet letter’
MILWAUKEE – A lawsuit over whether Wisconsin can release data on businesses in the state tied to COVID-19 outbreaks will proceed after a judge on Monday denied motions from the state and the Milwaukee Journal Sentinel to dismiss the case.
The state’s largest business lobby, Wisconsin Manufacturers & Commerce, sued to stop the release of the data in October, arguing that businesses could suffer “irreparable harm.”
In a hearing that lasted three hours Monday, WMC attorney Ryan Walsh argued that the data is private medical information and that the state has to prove the records cannot be used to identify individuals who had COVID-19.
“They claim they have been attentive to that, but ‘trust us’ is not good enough here,” Walsh said.
The records in question contain data on roughly 1,000 Wisconsin businesses with 25 or more employees that have had at least two employees test positive or identify as close contacts.
The Journal Sentinel, part of the USA TODAY Network, requested the records in June after workers at food processing plants and residents at nursing homes told the newspaper they were left in the dark about outbreaks at their facilities and had to learn about cases through word of mouth.
In her motion to dismiss the lawsuit, Assistant Attorney General Anne Bensky, representing the state, argued that the WMC had no standing to sue.
But Judge Lloyd Carter of the Waukesha County Circuit Court sided with the business lobby and said he was concerned that releasing the data could plaster businesses with a “scarlet letter.”
“We’re talking about businesses who are teetering on the brink of failure,” Carter said. “We’re talking about release of data with potential for irreparable harm to those businesses.”
WMC President Kurt Bauer echoed those thoughts in a statement Monday.
“While an employee may have contracted COVID-19 outside the workplace and properly quarantined, a business could still face financial or reputational harm if consumers falsely blame the employer due to this release,” Bauer said.
The case will likely play out for several more months as the parties gather evidence, find experts to weigh in on privacy issues and possibly engage in discovery.
Tom Kamenick, an attorney with the Wisconsin Transparency Project representing the Journal Sentinel, called the speculation that businesses would be harmed “gross exaggeration.”
He pointed out that several states and county health departments already name facilities with outbreaks, and many facilities with large outbreaks have already been widely reported on in the media.
Through a separate records request, officials in Brown County, home to Green Bay, previously released similar data to the Journal Sentinel that show that Wisconsin food processing plants have been linked to more COVID-19 cases than previously disclosed. One Green Bay plant, JBS Packerland, was linked to 417 people who tested positive and four deaths.