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Wisconsin Spotlight | Dec.2, 2020

MADISON — The Evers administration has been restrained again. 

Waukesha County Judge Lloyd Carter this week extended his previous injunction, barring the administration from releasing names of businesses with two or more employees testing positive for COVID-19. 

Carter also rejected motions to dismiss from Team Evers and the Milwaukee Journal Sentinel, which is seeking the information through the state’s open records law. The judge is allowing the lawsuit to proceed. 

For now, the records remain out of the public domain. 

‘Laundry list of harm’ 

Wisconsin Manufacturers & Commerce joined two Waukesha County chambers of commerce in seeking the injunction, asserting the administration’s plan to publicly release the names of businesses with two or more coronavirus cases would violate privacy laws and do irreparable harm to employers already hurt by the pandemic. 

“Businesses around Wisconsin have already faced significant economic harm from COVID-19, and this type of release has the potential to spread false and misleading information that will just make matters worse,” said WMC President & CEO Kurt Bauer in a statement following the court’s ruling. 

The judge agreed. 

“There’s been a laundry list of harm that’s been identified to this court,” Carter said. “We’re talking about businesses … many teetering on the brink of failure” because of the virus and government-ordered restrictions. 

Carter extended an injunction that he first issued on an emergency basis two months ago. 

‘Trust us’ 

This week, the judge rejected the arguments of Assistant Attorney General Anne Bensky, representing Gov. Tony Evers, his Department of Health Services Secretary-designee Andrea Palm and the Department of Administration. 

Bensky asserts WMC and the chambers, as organizations representing businesses, don’t have legal standing to bring the lawsuit. She also contends that there’s “not one suggestion of evidence” that any business has been or will be harmed by the records release. 

Benksy said only businesses over 25 employees would be affected, which would insulate the identities of employees who have tested positive for COVID-19. She said the DHS “experts” know what they’re doing. 

“’Trust us’ is not good enough here,” said Ryan Walsh, attorney for WMC. As Walsh noted, the state cannot guarantee protecting employees from public identification, which would be a clear violation of health privacy laws. 

And the information would provide little context, like the very strong possibility that an employee may have contracted COVID-19 outside the workplace. The employee may have been properly quarantined, but a business “could still face financial or reputational harm if consumers falsely blame the employer due to the release,” Bauer said. 

The COVID cases could also be many months old. 

Right to know? 

No matter, said Tom Kamenick, attorney for the Milwaukee Journal Sentinel. The public has a right to the information, particularly during a health crisis. 

“We should not even be here. The plaintiffs have no right to stop the release of these records to the public,” said Kamenick, president and founder of the Wisconsin Transparency Project. “These records should have been released months ago.” 

But even Evers has said the information is not public, and that it was a privacy matter. He then did an about face in late September, effectively giving a 12-hour notice of his intentions to out the businesses before WMC sought the emergency restraining order.

Height of hypocrisy 

The assistant attorney general argued that WMC and the many businesses it represents are asking the court to “legislate from the bench because they don’t like” Wisconsin’s open records law. 

It’s a rich argument coming from the legal counsel of a governor who has been widely criticized for his failure to release public records. In fact, Kamenick recently won a lawsuit against Evers. The governor’s office fought Fox6’s request  for just one day of emails between Evers and his chief of staff. 

His administration also recently cited privacy laws in refusing Empower Wisconsin’s request for information about state employees who died from COVID-19. 

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