WI High Court Considers Case For Employer COVID-19 Numbers

By Erik Gunn, Wisconsin Examiner

February 14, 2022

A case in the Wisconsin Supreme Court tests whether the state health department can release the names of businesses where COVID-19 outbreaks occurred.

For now, the high court is considering only whether a collection of business groups has the right to try to stop the Department of Health Services (DHS) from releasing data on workplace cases of the coronavirus infection, which news organizations sought more than a year and a half ago from the agency.

But arguments Monday before the Supreme Court also touched on the question of whether that data itself was medical information about patients, which is supposed to be closely guarded under Wisconsin law.

And Thomas Kamenick, a lawyer for the Milwaukee Journal Sentinel in its pursuit of the information, said that because of the lawsuit and the lower court order, the business groups “have been able, without ever proving that the release of these records would be unlawful, to delay that release for over a year and a half.”

In 2020 the Journal Sentinel filed an open records request asking DHS for the names of all Wisconsin businesses with more than 25 employees at which at least two people had tested positive for COVID-19 or were found by contact tracers to be “close case contacts” of COVID-19 patients.

The newspaper’s request did not seek patient-specific information, and at the request of DHS, it excluded employers with 25 or fewer employees because in smaller work groups it would be easy to narrow down the data to individuals.

DHS assembled the data and prepared to release it Oct. 2, 2020, after informing Wisconsin Manufacturers & Commerce (WMC) of its plans. WMC, along with chambers of commerce in Muskego and New Berlin, sued to block the release, arguing that the data came from “protected confidential health care information that cannot be released without the informed consent of each individual” under the state’s medical privacy law.

A Waukesha County circuit judge blocked the release with a temporary restraining order, and granted WMC and the two chambers a temporary injunction against the release of the data. After the Journal Sentinel and the Evers administration appealed, the Appeals Court reversed the lower court’s order and ordered the case dismissed. That order was stayed and the case was appealed to the Wisconsin Supreme Court.

Much of the argument Monday focused on whether WMC and the chambers had any basis for suing in the first place.

A 2003 law put new limits on the ability of outside individuals to block the release of government records in Wisconsin. When the lawyer for the three business groups, Scott Rosenow, outlined their objective to get the courts to declare that releasing the records would violate medical privacy, Justice Patience Roggensack asked, “but is that WMC’s claim to make?”

Rosenow asserted that the organizations’ member businesses have the right to sue “if a record is released and the release harms them.” Those member businesses also have a right as state taxpayers to challenge the release, the lawyer said.

Justice Brian Hagedorn questioned that claim, suggesting it had such a broad reach that it “seems like a very different kind of doctrine than has ever been recognized by our courts.”

The original lawsuit, which is still pending, has been amended to include private citizens. Justice Rebecca Bradley suggested that because of that amendment, the appeal and even Monday’s Supreme Court argument were “not the best use of appellate resources.” But Clayton P. Kawski, arguing for the Evers administration, said that individuals could not demand a statewide injunction on the release of the data, just for their own records.

Whether the information that DHS planned to release was covered by the state’s medical privacy law was clouded in Monday’s argument, however. The justices didn’t directly grapple with that question, but it was close to the surface through much of the debate.

Justice Rebecca Dallet rejected the assumption that the information DHS was planning to release should be counted as protected patient health care records. Questioning Rosenow, she described it as “a summary document with no names and with the numbers” of COVID cases and contacts at an identified employer. “How does that meet the definition?”

The state “must treat those records as patient health care records,” Rosenow asserted.
The question returned during arguments by the lawyer for the administration. “These are not patient health care records,” said Kawski, a Wisconsin assistant attorney general.

“I mean, they are indirectly, aren’t they?” replied Chief Justice Annette Ziegler. “Without knowing that person had COVID, or was around someone who had COVID, that can’t become usable information to DHS.”

Kawski reiterated: “Our position is that the records that were proposed to be disclosed are not patient health care records.”

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