Evers’ privacy law double standard

Empower Wisconsin | Nov. 12, 2020

By M.D. Kittle 

MADISON — Last month, a Waukesha Court slapped the Evers administration with a restraining order, stopping it from releasing the names of Wisconsin businesses with two or more cases of COVID-19. 

A lawsuit by Wisconsin Manufacturers & Commerce (WMC) and two Waukesha County chambers of commerce asserts releasing the names of businesses would violate state privacy laws. The identities of employees who have tested positive for the virus, particularly at smaller firms, could be compromised, according to the lawsuit. 

Oral arguments are scheduled for Nov. 30. The judge in his ruling said WMC and the chambers have shown good cause in their petition for relief. 

“This type of release has the potential to spread false and misleading information that will damage the brands of Wisconsin employers,” said WMC President & CEO Kurt Bauer. “Not only could this cause significant financial and reputational harm to businesses, it would reduce the effectiveness of contact tracing, reduce the confidence level workers have in their employers and actually increase the likelihood of spreading the virus.”

Team Evers insists it has no choice. The Milwaukee Journal Sentinel has sought the information under Wisconsin’s open record law and the administration must follow the law. Never mind its failure to fulfill the simplest records request. 

Interesting that Evers’ state Department of Administration now claims privacy restrictions in denying Empower Wisconsin’s request for information on state employees. 

Sources told Empower Wisconsin in September that a custodian at the Wisconsin State Capitol had succumbed to COVID-19. We asked the agency for information about the names of all current state employees who have died from COVID-19-related causes. “Also, and more specifically, the names of current State Capitol custodial staff members who have died from COVID-19 or COVID-19-related causes.”

Alexandra G. Arkin, legal council for DOA, said the agency has been unable to locate any responsive records to Empower Wisconsin’s request, because the agency does not centrally track cause of death for state employees. 

Even if records of an employee’s illness or cause of death were contained in the personnel files, “we would be required to redact all information about medical conditions and treatments, pursuant to” state law, the state lawyer said. 

“The public interest in protecting the privacy and safety of such employees would outweigh the interest in access to the information,” she wrote. 

Hmm. Protecting the privacy of public employees is paramount, but not the privacy of private sector employees. It appears to be a double standard from an administration that is steeped in double standards. 

WMC declined to comment while the litigation is pending. Ryan Walsh, the organization’s attorney, previously warned the administration that it would be trampling on the privacy rights. 

“Because these disclosures would permit third parties to uncover the identity of individuals who have tested positive for COVID-19, they would violate several state and federal laws, all of which protect Wisconsinites’ right to privacy in their health records. The disclosures would also likely inflict emotional distress on vulnerable workers and wreak reputational damage on both the patients and the employers,” Walsh wrote in a letter. 

As Empower Wisconsin first reported in September, the governor seemed to get that fact, and backed down on the plan. 

“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,” he said during a news conference. “So there’s some privacy things going on there.”

Evers flip-flopped, and now the administration finds itself in court, defending its plan to release private information. 

Read the DOA response letter here. 

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  1. Harold Wilkes Avatar
    Harold Wilkes

    Evers has no standards, double or otherwise – to have a standard requires acknowledgement that principles of conduct informed by notions of honor and decency exist and there is no place in his agenda for either. That’s not even mentioning legal standards which are the backbone of our Constitution.

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