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Court of Appeals hears arguments in lawsuit to keep COVID records secret

By: Michaela Paukner, [email protected]//March 24, 2021//

Court of Appeals hears arguments in lawsuit to keep COVID records secret

By: Michaela Paukner, [email protected]//March 24, 2021//

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The Court of Appeals heard oral arguments on Wednesday in a lawsuit attempting to stop Gov. Tony Evers’ administration from releasing the names of businesses with employees who have tested positive for COVID-19.

Wisconsin Manufacturers and Commerce, along with the Muskego and New Berlin chambers of commerce, filed the lawsuit in Waukesha County in October. WMC argued that releasing the requested information would essentially blacklist the more than 1,000 companies that have had positive cases in Wisconsin and violate the privacy of employees’ medical records.

The District IV Court of Appeals took jurisdiction after the circuit court imposed a temporary injunction barring the release of the records. Judges Brian Blanchard, Michael R. Fitzpatrick and JoAnne F. Kloppenburg heard oral arguments for nearly two hours on Wednesday on Zoom.

Clay Kawski, assistant attorney general, said the plaintiffs lack standing because the information they are trying to keep private isn’t protected under patient health-care laws. He also noted that the plaintiffs aren’t patients themselves.

“That’s really the summary of the whole issue,” Kiawski said.

The information being sought, he added, doesn’t meet the statutory definition of a health-care record. It instead consists of the names of businesses, their addresses and the number of cases associated with each of them. Kawski said you can’t identify a patient from that.

Blanchard, though, wondered about the assumptions that might be made about people working at companies where, say, 20 out of a total of 26 employees had tested positive for COVID.

Kawski noted that the plaintiffs in the case hadn’t argued that any of the exceptions listed in Wis. Stat. 19.356 apply to them. The statute has no requirement that an authority provide notice to the subject of a record request before the information being sought is released.

The plaintiffs argued in their brief that Wisconsin’s Declaratory Judgments Act allows any group or individual with standing to seek a declaration of rights before a threatened harm, including a release of records, is accomplished.

“They’re trying to fill the empty vessel of the Declaratory Judgments Act with something that doesn’t work at all,” Kawski said.

Attorney Tom Kamenick, appearing on behalf of the Milwaukee Journal Sentinel, argued the open-records aspect of the case, saying that only individuals can bring a claim under 19.356.

He acknowledged that an individual who could be identified by the release of records has the right to stop that release. But that in no way means the same person has the right to challenge the release of someone else’s information.

“It’s not the illegality or legality that decides whether or not the plaintiffs will be harmed — it’s the release of the records,” Kamenick said. “While for the patients, they are closely tied. It creates a disconnect between the harm and the illegality.”

He accused WMC of using the Declaratory Judgments Act to prevent the government from releasing the sought-after COVID-19 records.

“It puts people like the plaintiff in a better position than the people requesting the records,” Kamenick said.

The judges questioned Attorney Ryan Walsh, representing the plaintiffs, at length about whom WMC represents and what that representation means for this particular case. Walsh said WMC was speaking not only for its business members but also employees, sole proprietors and individuals.

The judges thought it seemed that WMC was speaking for all businesses in the state and their employees, asking them to assume that at least one of its member is on the list because it is such a large organization. Blanchard said it seemed as if Walsh was using vagueness as a basis for standing.

Walsh said he had made broad claims because WMC and the chambers didn’t know exactly what was going to be included in the records release.

“We’re litigating this case behind the veil of ignorance, so how can I tell the court in a sworn document that I have members on this list?” Walsh said. “We’re alleging that we have members implicated who are on this list.”

Walsh argued that people could be identified by the release of employers’ names. He also said the requested data release would violate health-care laws because the information being sought would come from medical records.

As for the status of who can file a claim, Walsh said people were added to the second amended complaint in response to the state’s claim that only an individual could make such a claim. As for WMC, Walsh said it has suffered harm regardless.

“We’re harmed by the release of confidential information and then we’re also harmed as taxpayers because money has been spent in the form of employee time,” Walsh said.

Kawski asked the judges to reverse and remand the case. Walsh said that if the judges agreed with the state, then remanding would be the right action. But if the court dissolved the injunction, Walsh said, the court should stay the ruling to allow WMC to seek a review of the decision.

“We don’t want the case to be mooted before exhausting appellate rights,” Walsh said.


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