Court clears the way to release workplace COVID-19 data

Decision praised by advocates for open records and worker safety

By: - June 7, 2022 2:07 pm
OAKLAND, CALIFORNIA - APRIL 29: A U.S. Postal Worker moves packages to a conveyor belt at a processing and distribution center in Oakland, California. U.S. Postal Service workers are continuing to process and deliver the mail amid the coronavirus (COVID-19) pandemic. The Postal Service faces an uncertain future with revenues down an estimated 50 percent this year due to the coronavirus crisis. (Photo by Justin Sullivan/Getty Images)

A U.S. Postal Worker moves packages in Oakland, California. in April 2020, early in the COVID-19 pandemic. The Wisconsin Supreme Court has cleared the way for state health officials to release a list that shows the number of workplace cases of COVID-19 by employer. (Justin Sullivan | Getty Images)

State health officials are free to release data that would identify which employers have experienced COVID-19 outbreaks, the Wisconsin Supreme Court ruled Tuesday.

In an opinion issued Tuesday morning, the state’s highest court stated that three business lobbying groups had no basis to block release of the data, which was prompted by a news media open records request. 

The justices, in a 4-3 opinion written by Justice Rebecca Dallet, concluded that a 2003 revision to the state open records law “makes clear that no one has a right to block the release of a public record unless otherwise specified” under very narrow circumstances. Justices Ann Walsh Bradley, Brian Hagedorn and Jill Karofsky joined in the majority. 

The case was brought by Wisconsin Manufacturers & Commerce (WMC) and two local community chambers to prevent the Wisconsin Department of Health Services (DHS) from releasing statistical data on COVID-19 cases at employers. WMC argued that releasing the data would violate patient health care records.

Tuesday’s opinion was a reaffirmation of Wisconsin’s robust open records law, and was hailed by advocates for worker safety and for open government. 

“All workers have the right to a safe workplace,” Wisconsin AFL-CIO President Stephanie Bloomingdale said in statement. “The COVID pandemic spotlighted just how unprepared employers where to protect workers from deadly and infectious pathogens in the workplace. Whether WMC likes it or not, the people of Wisconsin deserve to have access to the public data and information regarding COVID-19 outbreaks at work so we can best protect workers now and in the future.”

Bill Lueders
Bill Lueders

Bill Lueders, president of the Wisconsin Freedom of Information Council, also applauded the ruling.

“This decision properly recognizes that the public has a right to know pandemic-related information gathered by public health authorities, whether the state’s largest business group likes it or not,” Lueders said in a statement. “It establishes that outside parties cannot swoop in to block the release of information that has been determined to be releasable under Wisconsin’s open records law.”

In a dissent that was longer than the 15-page majority opinion, Chief Justice Annette Ziegler castigated the decision for allowing the release of what she described as “individuals’ personal medical information” — a characterization that was disputed when the case was argued in February. Justices Patience Roggensack and Rebecca Bradley joined in the dissent.

“The decision does not open the door to the release of detailed medical information on individuals, as the dissenting opinion alleges,” Lueders stated. “It merely affirms that statistical information gathered by the state about outbreaks at businesses is public information.”

The records won’t be immediately available, however. The Supreme Court ruling remanded the case to circuit court in Waukesha County, and DHS “remains temporarily enjoined” from releasing the data, a department spokeswoman said Tuesday afternoon.

Workplace COVID-19 outbreaks

Early in the COVID-19 pandemic the Milwaukee Journal Sentinel filed an open records request asking DHS for the names of all Wisconsin businesses with more than 25 employees and where at least two people had tested positive for COVID-19 or were identified through contact tracing as “close case contacts” of COVID-19 patients.

The request was made at a time when workplace outbreaks of COVID-19, particularly in industries such as meatpacking where large numbers of people work in close quarters, had raised concerns about worker safety in the pandemic.

The newspaper’s request did not seek information identifying individual patients. At the rest of DHS, the request excluded employers with 25 or fewer employees, because in smaller work groups it would be easy to narrow down the data to individuals.

After assembling the data, DHS informed WMC of its plans to release the list on Oct. 2, 2020. The business group 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.

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

Affirming the appeals court, the Supreme Court majority ruled Tuesday that, with very limited exceptions already defined in state law, Wisconsin’s public records law doesn’t allow outside parties to go to court to block the release of a government record once the government has decided to release it. That barred WMC from pursuing its case, the opinion states.

State Supreme Court Justice Rebecca Dallet

“The decision of whether to permit public access to a record in response to a request lies with the custodian of the record, not its subject,” Dallet wrote in the majority opinion. She quoted Wisconsin law, which states that “no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record.”

While the WMC lawsuit had referred to Wisconsin’s medical privacy law, the group “did not bring its case directly under either the patient health care records statutes or the public records law,” the majority opinion states. Instead, it sued under the state law that enables citizens to seek declaratory judgments in court and the courts to issue them.

But a declaratory judgment can’t override the state open records law’s blanket prohibition on using the courts to block records from being released, the opinion states.

Elizabeth Goodsitt, a communications specialist for DHS, said Tuesday that the department must await further action by the circuit court before releasing any records.

“DHS remains temporarily enjoined from releasing any information relating to businesses whose employees have tested positive for COVID-19 or who contract tracing has shown close connections,” Goodsitt told the Wisconsin Examiner. “The Supreme Court did not order the release of records and instead remanded the case to circuit court. Procedurally, the case is not concluded until the circuit court so orders. DHS welcomes today’s decision, and it will continue its work to provide the public with timely, accurate information about COVID-19.”

Data vs. ‘personal health care information’

In oral argument in the case in February, lawyers for WMC, the Journal Sentinel and Evers, who was the named defendant in the lawsuit, touched on the question of whether releasing DHS data on employers’ COVID-19 case numbers was the equivalent of releasing personal health care information of patients.

Tuesday’s majority opinion doesn’t address that question, although Dallet made the distinction when she questioned WMC’s lawyer at the time. 

State Supreme Court Chief Justice Annette Zieger

Ziegler’s dissent repeatedly conflates general data involved in the release with personal patient information. “Significantly, private patient files that are confidential by law, may become public records subject to the public records law, and if the government has gathered personal medical information, the confidential status of that information is gone and cannot be challenged,” she writes. 

She also argues that the appeals court, and the Supreme Court with it, acted too swiftly in rejecting the lawsuit rather than considering the addition of two anonymous individual plaintiffs who joined the suit to block the release of information on their own behalf.

In a statement posted on WMC’s website Tuesday, the business lobby’s president and CEO, Kurt Bauer, claimed that the ruling “has opened the door to massive public intrusion into private medical records possessed by state agencies.”

Personal health care information was never at stake in the matter, however, Lueders emphasized. 

Ziegler’s dissent “seems designed to stir up unfounded fears about the disclosure of personal medical information,” Lueders said. “In fact, all that is being released [are] 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.”

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Erik Gunn
Erik Gunn

Deputy Editor Erik Gunn reports and writes on work and the economy, health policy and related subjects, for the Wisconsin Examiner. He spent 24 years as a freelance writer for Milwaukee Magazine, Isthmus, The Progressive, BNA Inc., and other publications, winning awards for investigative reporting, feature writing, beat coverage, business writing, and commentary. An East Coast native, he previously covered labor for The Milwaukee Journal after reporting for newspapers in upstate New York and northern Illinois. He's a graduate of Beloit College (English Comp.) and the Columbia School of Journalism. Off hours he is the Examiner's resident Springsteen and Jackson Browne fanboy and model railroad nerd.

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