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Judge blocks Evers from outing businesses with COVID cases

Empower Wisconsin | Oct. 2, 2020

By M.D. Kittle 

MADISON — If Gov. Tony Evers was still entertaining ideas of outing more than 1,000 businesses that have reported two or more COVID-19 cases, a southeast Wisconsin judge has put those plans on hold. 

Waukesha County Circuit Court Judge Lloyd V. Carter late Thursday issued a temporary injunction barring the release of business names with employees who have tested positive for the coronavirus.  

Carter said the Wisconsin Manufacturers & Commerce, the state’s largest business advocate, and the Muskego and New Berlin chambers of commerce have shown good cause in their petition for relief, filed earlier in the day. 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. 

“This Order shall remain in effect for 5 days unless extended after notice and hearing,” Carter wrote. 

The lawsuit seeks what Evers has failed to provide in all of his flip-flopping on the issue: a definitive declaration that making the names of the businesses public would break the law. 

Of course, the governor has been repeatedly warned of that fact over the past couple of months. Yet, the Democrat will cost taxpayers more legal fees over his failure to follow the law and his vindictiveness for Republicans and business. 

WMC was made aware this week that the information would be released today. His administration would name names – regardless of where the employees contracted the virus. Additionally, WMC has learned that business information could be released even if the company had no employees test positive but had two or more contact tracing investigations.

“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.”

In part the court filing argues:

 — The records that defendants plan to disclose are protected by patient-confidentiality laws

 — Even if the information that defendants plan to release were not explicitly protected by the health-privacy statutes, the open-records statute would not authorize disclosure

 — Disclosure would cause plaintiffs’ members irreparable harm

 — An injunction is necessary to preserve the status quo and is in the public interest

Sources told Empower Wisconsin that the governor had decided by Thursday morning not to go ahead with the plan to out the businesses, changing his mind once again, but he appeared to flop once more by late Thursday afternoon. WMC and their fellow plaintiffs weren’t taking any more chances. 

The flip-flopper-in-chief has done more flipping on the issue than a Cirque du Soleil acrobat in recent weeks. 

As Empower Wisconsin first reported in July, the state Department of Health Services had planned to release the names of businesses with two or more coronavirus cases. When caught, DHS officials insisted they were receiving open records requests from hundreds of media outlets seeking the information, and that they had no other choice under the law. They had actually received requests from a handful of media outlets. 

After pressure from Wisconsin Manufacturers & Commerce and other business groups, the agency paused in its plan. But the governor refused to answer WMC’s letter asking whether he would definitively say that he would not release the information. 

Just two weeks ago, he indicated as much.  

“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 press conference. “So there’s some privacy things going on there.” 

He flopped again this week, with the release reportedly set for today. 

DHS has yet to return a request for comment sent Wednesday evening.

But Evers did tell reporters that his attorneys had gone over the records requests and that the law demanded the release of the information. 

“We have an obligation to the public to obey the law in that area,” said the governor whose legal counsel wouldn’t release one day of the governor’s emails to a reporter.  

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