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Wisconsin Spotlight | Oct. 6, 2020

MADISON — Wisconsin’s largest business advocate will seek a broader injunction on the Evers administration to stop it from releasing the names of Wisconsin businesses that have recorded two or more incidents of employees testing positive for COVID-19.

Wisconsin Manufacturers & Commerce CEO Kurt Bauer joined WMC attorney Ryan Walsh Monday for a member update on the latest legal battle with Gov. Tony Evers and his overreaching administration.

Here’s what’s new:

+ Walsh said the state Department of Justice is representing Evers and his health Department of Administration secretaries in the lawsuit. They are expected to file a brief in the case on Tuesday, one day before Waukesha County Circuit Court Judge Lloyd V. Carter holds a hearing on the legal arguments. The Evers administration has not returned two emails seeking comment.

+ Walsh, representing WMC and the Muskego and New Berlin chambers of commerce, will seek an extended restraining order barring the administration from releasing the information while the judge deliberates.

+ The Milwaukee Journal Sentinel has insinuated itself in the lawsuit. As a media outlet that sought the names of businesses with COVID-19 cases through an open records request, the Journal Sentinel insists it and the public’s interest would be harmed if the information is not released.

Walsh said the administration’s argument that it is releasing business names to the media under the state’s open records law is like arguing the Pentagon Papers  weren’t released to the public but to the press. The public still receives the information. It’s a distinction without a difference. In this case, the public is privy to information that, according to the attorney, is illegal to release.

It’s interesting to note that the same governor who is now leaning on the state’s open records law last year refused to turn over even one day of his emails to a news organization.

The Waukesha County judge late Thursday issued a temporary injunction barring the release of business names with two or more employees who have tested positive for the coronavirus.

The judge said the Wisconsin Manufacturers & Commerce and its fellow plaintiffs have shown good cause in their petition for relief. So 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.

The order is in effect until Thursday.

“Obtaining a temporary restraining order is a heavy lift. It is a good sign for our case,” Walsh said during Monday’s conference call.

WMC argues outing the businesses is a violation of individual privacy laws. And Bauer said it would do nothing to slow the spread of the disease, while it would “compound the harm already done to business” from COVID-19 and government lockdowns.

Evers and his team have waffled, going back and forth on whether the administration would — or legally could — release the information. At a Milwaukee Press Club event in early September, the governor said the information was not public, and that it was a privacy matter. He then did an about face last week, effectively giving a 12-hour notice of his intentions to out the businesses before WMC sought the emergency restraining order.

Despite the sovereign immunity of public officials, Walsh said the administration could be legally liable if it breaks the law.

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