Judge Blocks Wis. Governor From Outing Businesses With COVID-19 Cases

Judge Blocks Wis. Governor From Outing Businesses With COVID-19 Cases

If Gov. Tony Evers was still entertaining ideas of outing more than 1,000 businesses that have reported two or more COVID-19 cases, a southeast Wisconsin judge has put those plans on hold.
Matt Kittle
By

MADISON, Wis. — If Gov. Tony Evers was still entertaining ideas of outing more than 1,000 businesses that have reported two or more COVID-19 cases, a southeast Wisconsin judge has put those plans on hold.

Waukesha County Circuit Court Judge Lloyd V. Carter late Thursday issued a temporary injunction barring the release of business names with employees who have tested positive for the coronavirus.

The groups bringing the lawsuit — Wisconsin Manufacturers and Commerce, the state’s largest business advocate, and the Muskego and New Berlin chambers of commerce — alleged that in response to media requests, Evers had planned to release the list of businesses on Friday. The plaintiffs said his actions would have blacklisted those establishments and noted the information comes from personal medical records, which are private under Wisconsin law.

Evers, however, appealed to freedom of information under open-records law. Carter said the groups had shown good cause in their petition for relief, filed earlier in the day. The judge temporarily restrained Evers, his Department of Health Services Secretary-designee Andrea Palm, and Department of Administration Secretary Joel Brennan from releasing the information.

“This Order shall remain in effect for 5 days unless extended after notice and hearing,” Carter wrote.

The lawsuit seeks what Evers has failed to provide in all his flip-flopping on the issue: a definitive declaration that making the names of the businesses public would break the law. The governor has been repeatedly warned of that fact over the past couple of months, yet the Democrat will cost taxpayers more legal fees over his failure to follow the law and his vindictiveness for Republicans and business.

Wisconsin Manufacturers and Commerce found out last week that Evers’s administration would name names, regardless of where the employees contracted the virus. Additionally, the trade association learned that business information could be released even if companies had no employees test positive but had two or more contact-tracing investigations.

“This type of release has the potential to spread false and misleading information that will damage the brands of Wisconsin employers,” said Wisconsin Manufacturers and Commerce President and CEO Kurt Bauer. “Not only could this cause significant financial and reputational harm to businesses, but it would also reduce the effectiveness of contact tracing, reduce the confidence level workers have in their employers, and actually increase the likelihood of spreading the virus.”

In part, the court filing argues:

  • The records that defendants plan to disclose are protected by patient-confidentiality laws.
  • Even if the information the defendants planned to release was not explicitly protected by health-privacy statutes, the open-records statute would not authorize disclosure.
  • Disclosure would cause plaintiffs’ members irreparable harm.
  • An injunction is necessary to preserve the status quo and is in the public interest.

Sources told Empower Wisconsin the governor had decided by Thursday morning not to go ahead with the plan to out the businesses, changing his mind once again, but he appeared to flop once more by late Thursday afternoon. Wisconsin Manufacturers and Commerce and their fellow plaintiffs weren’t taking any chances.

Evers has done more flipping on the issue than a Cirque du Soleil acrobat. As Empower Wisconsin first reported in July, the state Department of Health Services had planned to release the names of businesses with two or more coronavirus cases. When caught, DHS officials insisted they were receiving open-records requests from hundreds of media outlets seeking the information and had no other choice under the law. They had actually received requests from a handful of media outlets, but the collusion between the media and the state’s powerful Democrats resembled a gross Soviet name-and-shame campaign against Wisconsin’s vulnerable businesses.

After pressure from business groups, the agency paused its plan. The governor, however, refused to answer Wisconsin Manufacturers and Commerce’s letter asking whether he would definitively say he would not release the information. Just two weeks ago, he indicated as much.

“We believe that it’s information that is not public and it’s information that we need to keep in a way that not only protects the businesses but more importantly it helps us monitor and helps us answer the questions about outbreaks and how to deal with outbreaks and do it in a way that isn’t a problem for us,” he said during a press conference. “So there’s some privacy things going on there.”

He flopped again last week, with the release reportedly set for Friday. DHS has yet to return a request for comment sent Wednesday evening. Evers did tell reporters, however, that his attorneys had gone over the records requests and that the law demanded the release of the information.

“We have an obligation to the public to obey the law in that area,” said the governor, whose legal counsel has refused to release the governor’s emails to a reporter.

Matt Kittle, executive director of Empower Wisconsin, is an award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism.

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