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A divided Wisconsin Supreme Court ruled Tuesday that the state’s health department can release data on businesses where multiple COVID-19 cases occurred, closing the loop on a nearly two-year-old public records case pitting businesses’ right to privacy against the public’s right to information.
In a 4-3 decision — with conservative Justice Brian Hagedorn siding with the court’s three liberal justices, Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky — the court ruled against Wisconsin Manufacturers and Commerce, the state’s largest business organization. WMC filed the lawsuit in October 2020 after Gov. Tony Evers and the state Department of Health Services announced plans that summer to release information pertaining to positive COVID-19 cases at businesses in order to comply with public records requests from media outlets.
“The issue is whether the public records law’s general prohibition on pre-release judicial review of decisions to provide access to public records bars WMC’s claims,” Dallet wrote for the majority. “We conclude that it does, and therefore affirm the court of appeals’ decision.”
Conservative justices Annette Ziegler, Patience Roggensack and Rebecca Bradley dissented, with Ziegler writing that the state “is prepared to release individuals’ personal medical information to the public” and saying the majority “makes no mention of the perhaps unintended consequences of its action.”
“It closes the courthouse doors to anyone who may wish to challenge the release of personal medical information,” Ziegler wrote. “This is egregious error.”
Bill Lueders, president of the Wisconsin Freedom of Information Council, said the decision reaffirms the public’s right to know pandemic-related information collected by a public health authority. He also pushed back on Ziegler’s comments, noting that “all that is being released is the names of businesses and number of confirmed infections gathered as part of the state’s response to a public health crisis.”
“To try to frighten people into believing that their most personal medical information is now open for all to see seems irresponsible,” Lueders said in a statement.
WMC, along with the Muskego Area Chamber of Commerce and New Berlin Chamber of Commerce and Visitors Bureau, filed the lawsuit in Waukesha County Circuit Court to block release of the records after DHS announced plans to release the names of more than 1,000 businesses with more than 25 employees where at least two workers had tested positive for COVID-19.
Wisconsin businesses said releasing the information to the Milwaukee Journal Sentinel and other media outlets that requested the information, including the Wisconsin State Journal, would have severe impacts on companies already struggling through the pandemic.
The business groups also alleged the information they want blocked is derived from diagnostic test results and the records of contact tracers, and that such information constitutes patient health care records that must be kept confidential under federal law.
A Waukesha County judge issued multiple restraining orders in 2020 preventing the state health department from releasing the information. The Fourth District Court of Appeals eventually reversed the lower court’s decision last April, prompting WMC’s appeal to the state Supreme Court.
Kurt Bauer, president and CEO of WMC, said in a statement the organization disagrees with the court’s decision, “which has opened the door to massive public intrusion into private medical records possessed by state agencies.”
“The governor’s attempt to shame and embarrass Wisconsin businesses is wrong, and the Supreme Court is equally wrong to allow it,” Bauer said.
DHS spokesperson Elizabeth Goodsitt said Tuesday the requested documents would not be made available until ordered for release by the circuit court. The state Supreme Court remanded the case back to the lower courts. 
It would be an understatement to say it’s difficult to select my top five stories from 2021.
Covering Wisconsin politics is anything but dull or slow (by my count I’ve had a little over 300 stories so far this year), but here are a few of the bigger impact stories I’ve had over the last 12 months.
I hope you’ve enjoyed reading my work as much as I’ve enjoyed covering Wisconsin, or at the very least have found these stories to be informative.
Covering the COVID-19 pandemic has been an exhausting endeavor. Whether discussing vaccines and face masks, the state’s use of billions in fed…
Another major storyline brought on by COVID-19 has been the pandemic’s impact on the state’s economy – specifically in terms of state unemploy…
As 2021 winds to a close, the battle over Wisconsin’s next 10-year political maps has only begun, with the Wisconsin Supreme Court looking to …
Once touted by former President Donald Trump as “the eighth wonder of the world,” southeast Wisconsin’s Foxconn project has, so far, failed to…
For a bit of good news, the World Dairy Expo confirmed in April that Dane County’s premier convention and exposition would remain in Madison t…
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Ziegler
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The groups allege the information they want blocked constitutes patient health care records that must be kept confidential.

The case could still be appealed to the Wisconsin Supreme Court. 

Arguments centered around whether business trade groups had the right to bring their lawsuit.
Hagedorn
Dallet
Ziegler
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