Sunday, December 4th, 2022
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MADISON — The Evers administration is free to disclose private medical information from businesses thanks to Supreme Court Justice Brian Hagedorn, the conservative in name only who once again sided with Big Government liberals on the court.

In a 4-3 ruling, the majority agreed with the liberal District IV Court of Appeals, the administration and the Milwaukee Journal Sentinel that releasing the names of businesses — small and large — with at least two or more employees who tested positive for COVID is allowable under the state’s open records law.

Wisconsin Manufacturers and Commerce and two Waukesha County chambers of commerce filed a lawsuit in 2020 seeking to block the release of the records. Doing so, WMC argued, would be a clear violation of medical privacy rights. Gov. Tony Evers previously agreed that outing businesses with COVID cases would be legally problematic.

“We believe that it’s information that is not public and it’s information that we need to keep in a way that not only protects the businesses, but more importantly it helps us monitor and helps us answer the questions about outbreaks and how to deal with outbreaks and do it in a way that isn’t a problem for us,” Evers said at the time. “So there’s some privacy things going on there.”

A Waukesha County judge sided with the businesses. The administration appealed.

Scott Manley, WMC’s Executive Vice President of Government Relations, said the state’s open records law ensures open and transparent government, but the law has its limits.

“The government cannot and should not be releasing information that includes people’s private medical records, including contact tracing information, communicable disease testing results and the individual’s employer. All of those under the Wisconsin law are considered part of an individual’s private medical record,” Manley said, adding the ruling “opens the door to some very significant and grave privacy concerns.”

The administration has argued the names of the businesses released would not include the identities of individual employees. But that information, WMC asserts, could be easily discovered, particularly at smaller employers.

In a dissenting opinion written on behalf of the three actual conservatives on the bench, Chief Justice Annette Ziegler called the majority opinion is filled with errors.

“It closes the courthouse doors to anyone who may wish to challenge the release of personal medical information,” Ziegler wrote. “This is (an) egregious error.”

The Supreme Court ruling arrived before the district court had the opportunity to weigh in on a motion seeking to add to the case two employees who fear their personal medical information could be released.

“We hope that the Department of Health Services will wait until the circuit court answers that important question because it could completely change the complexion of this litigation,” Manley said, adding that he’s not confident in the Evers administration’s constraint.

“Every indication we’ve had so far, unfortunately, is that they’re interested in shaming businesses and trying to embarrass them for no fault of their own,” Manley said. “All these businesses were trying to do was to try to stay afloat after Gov. Evers violated the constitution and shut them down.”

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