Appeals court orders COVID-19 data to be made public, but case will likely go to state Supreme Court

An appeals court ruled against the state’s largest business lobby on Monday and ordered the release of data on businesses linked to coronavirus outbreaks — records first requested by the Milwaukee Journal Sentinel nearly 10 months ago.

Wisconsin Manufacturers & Commerce sued in October to stop the release of the records, arguing that disclosing the names of businesses could “irreparably harm” their reputations.   

But in its written decision, the Madison-based District IV Court of Appeals ordered the lower court to dismiss the lawsuit and cancel the temporary restraining order blocking the release of records. 

The three-person panel consisting of judges Brian Blanchard, Michael Fitzpatrick and JoAnne Kloppenburg said the WMC did not have the right to challenge the release of public records as defined by the state Legislature.

According to the court’s written decision, patient privacy laws apply to individuals, not to businesses. 

“The rights of the Associations’ member businesses, on one hand, and the rights of the employee patients as specific individuals, on the other hand, are several distinct levels removed from each other.”

“There is an obvious disconnect between any purported rights of the Associations’ member businesses and the protected rights of individual employees,” the court wrote. 

The records in question contain the names of roughly 1,000 businesses that employ at least 25 people or are public-facing who employed at least two people who tested positive or were close contacts. 

Attorneys for the business lobby have argued that the data, although anonymized, is derived from individual medical records, and that the release of the businesses’ names would violate employees’ right to privacy. 

But in its written decision, the appeals court called that contention “sheer speculation.”

“The list by itself, considered in isolation, does not permit anybody to reasonably identify any of the employees or ‘patients,'” the court wrote. 

The temporary restraining order blocking the release of the data will remain in place while the case makes its way to the state Supreme Court, which typically takes several months to decide whether to hear a case.

In a statement released Monday, WMC executive vice president of government relations Scott Manley said the association plans to appeal. 

“We are disappointed with the court’s decision, but thankfully the lower court’s injunction still remains in place and will for the foreseeable future,” Manley said. “In other words, the lists will continue to remain confidential while we pursue relief in the Supreme Court.”

Wisconsin Transparency Project attorney Tom Kamenick, representing the Journal Sentinel, said the state Supreme Court may choose to expedite the case, as the appeals court did. 

“In the face of such a strong opinion from the court of appeals pointing out everything wrong with their argument, I would hope the WMC would give up on their hopeless quest and let the case drop,” Kamenick said. 

Contact Daphne Chen at dchen@gannett.com. Follow her on Twitter at @daphnechen_.