June 28, 2022 – A lawsuit filed to block the release of a list of all Wisconsin businesses with over 25 employees that had at least two employees test positive for COVID-19 is barred by the state public records law, the Wisconsin Supreme Court has ruled.
In Wisconsin Manufacturers and Commerce v. Evers, 2022 WI 38 (June 7, 2022), the supreme court held 4-3 that a provision that generally prohibits the pre-release judicial review of decisions to release records applied to the lawsuit.
Justice Rebecca Dallet wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Brian Hagedorn, and Justice Jill Karofsky. Chief Justice Annette Ziegler dissented, joined by Justice Patience Roggensack and Justice Rebecca Grassl Bradley.
Request for COVID-19 Data
In the early days of the pandemic, the state Department of Health Services (DHS) compiled a list of Wisconsin businesses with more than 25 employees that had either: 1) two or more employees test positive for COVID-19; or 2) close contacts that were investigated by contact tracers.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
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Included on the list were the number of positive tests and/or close contacts reported at each business on the list.
The Milwaukee Journal Sentinel made a public records request to DHS for certain records related to the pandemic. DHS decided to release the list to the Journal Sentinel.
In October 2020, WMC, the Muskego Area Chamber of Commerce, and the New Berlin Chamber of Commerce and Visitors Bureau filed a lawsuit in Waukesha County Circuit Court to block the release of the list under the state’s declaratory judgment act.
‘Blacklist’ of Businesses
WMC claimed that the list’s release would violate the state’s patient health care records statutes (Wis. Stat. section 146.81 and 146.82) because: 1) it would allow the identification of business that belonged to WMC; and 2) the list was derived from medical test results and records of contact tracers, and should therefore be kept confidential because it qualified as a patient health care record.
WMC also claimed that applying the common law balancing test that applies to the release of certain records under the public records law militated against the release of the records.
In particular, in its complaint WMC alleged that “[i]f any of Plaintiff’s members are listed in Defendant’s release … such information will imply that the businesses are somehow at fault for COVID-19.”
WMC also claimed in its complaint that “it is highly likely that consumers will avoid businesses on the State’s blacklist, regardless of whether the business was in any way at fault for the positive cases or was ever actually exposed to COVID-19.”
Evers argued that the plaintiffs lacked standing because they were not persons whose patient health records were at issue; Evers also argued the section 19.356(1) barred the plaintiff’s declaratory judgment action.
Additionally, Evers argued that the list did not contain “patient health care records” under sections 146.81 and 146.82 because it was compiled by DHS and DHS is not a “health care provider” for purposes of those sections.
The records that made up the list did not memorialize care provided to individual patients by DHS, Evers argued; rather, they merely summarized “aspects of information” gathered by DHS as part of its investigation into the community spread of COVID-19.
The circuit court granted a temporary restraining order blocking release of the list. Evers moved to dismiss; the circuit court denied the motion.
The Wisconsin Court of Appeals granted Evers’ petition for leave to appeal the order denying the motion to dismiss, and reversed the circuit court.
Before the supreme court, WMC argued that if section 19.356(1) barred its claim under the declaratory judgment act, it would have no remedy for the wrongful disclosure of public records.
WMC argued that 19.356(1) provides an adequate remedy only for persons seeking pre-release judicial review of a decision to release the following types of records: public employee disciplinary records; records obtained by a subpoena or search warrant; or records prepared by a non-public employer but held by a public entity.
Writing for the majority, Justice Dallet explained that a party may bring a declaratory judgment action when a statute does not provide an equally “‘speedy, effective, and adequate remedy,’” and may not bring a declaratory judgment action when the applicable statutory remedy is “‘at least as well-suited to the plaintiff’s need as a declaratory relief.”
The two Wisconsin Supreme Court cases that established those principles were distinguishable from WMC’s case, Dallet explained. In each of those cases, the plaintiff sought to enforce a right by filing a declaratory judgment action despite the fact a statute provided an exclusive procedure for enforcing the right.
“Section 19.356(1) is different,” Justice Dallet wrote. “It states a general rule that no one has the right to a particular remedy—pre-release judicial review—and then enumerates exceptions to the rule … Because there is no underlying right to pre-release judicial review, the analysis in [the two Wisconsin Supreme Court cases] is inapposite.”
What About Common-law Rule?
WMC also argued that the enactment of section 19.356(1) did not abrogate the common law rule that allows pre-release judicial review of a decision to release a public record.
Justice Dallet pointed out that the supreme court had recognized such a right in two cases that spurred the enactment of section 19.356. WMC argued that section 19.356 applies only to the types of record at issue in those two cases, and thus shouldn’t apply to the records DHS had decided to release to the Journal Sentinel, which were different.
But, Dallet explained, section 19.356(1) “clearly and unambiguously abrogated the common law rights created in [the two cases].”
“Section 19.356 does not distinguish between different categories of individuals or records; it states a general rule that applies to all claims for pre-release judicial review and provides two types of exceptions,” Justice Dallet wrote.
“This statutory language—a general prohibition subject to a statutorily enumerated exceptions—cannot coexist with a common-law entitlement to pre-release notice or judicial review.”
WMC Argument Would Repeal Section 19.356(1)
WMC argued that 19.356(1) allowed pre-release judicial review “as otherwise provided by statute,” and that the declaratory judgments act was such a statute.
But, Justice Dallet wrote, statutes outside chapter 19 that allow actions to block the release of records narrowly describe certain type of records, while the declaratory judgment act, “is broadly applicable and looks nothing like the other statutes where the legislature has specifically authorized actions to block and impending release of records.”
Furthermore, Dallet wrote, the declaratory judgments act “says nothing at all about records … other statutes address the issue, strongly suggesting that the Act is not a statute that ‘otherwise provide[s]’ for pre-release judicial review.”
A contrary conclusion, Justice Dallet explained, would in effect repeal section 19.356(1).
Majority Ignored Motion to Amend Complaint
In her dissent, Chief Justice Ziegler criticized the majority for paying too little attention to the procedural posture of the case.
Ziegler pointed out that when the court of appeals granted the interlocutory appeal, a motion from WMC to amend its complaint was pending.
The supreme court should reverse the court of appeals and remand the case to give the circuit court the opportunity to rule on WMC’s motion to amend its complaint, Chief Justice Ziegler argued.
The second amended complaint, Ziegler pointed out, added claims from two unidentified persons who had tested positive for COVID-19 during the relevant time period and were employees of a business with more than 25 employees.
The majority’s failure to consider the procedural posture, Ziegler wrote, led to a “sweeping” ruling that ignored the plaintiffs’ claim that releasing the name of employers would allow patients to be identified “because the employer’s name is patient identifiable data.’”
“The court of appeals never should have granted interlocutory appeal,” Chief Justice Ziegler wrote. “It short-circuited the standard judicial process and deprived the [plaintiffs] the ability to present their full case on the merits.”
The majority’s decision could have a broad impact, Ziegler argued.
“To determine that the only actual records protected are the medical records themselves, and not the information contained therein, has the potential for sweeping negative consequences,” Chief Justice Ziegler wrote.