A judge temporarily blocked the state health department from releasing the names of businesses linked to COVID-19 cases on Thursday, after the Wisconsin Manufacturers & Commerce sued to stop the release of the information to media outlets.

The state’s largest business lobbying group argued Thursday that the records are protected by patient confidentiality laws and that disclosure will “irreparably” harm businesses by “effectively blacklisting them.”

The order from Waukesha County Circuit Court Judge Lloyd V. Carter will remain in effect for five days. 

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The Milwaukee Journal Sentinel requested Wisconsin Department of Health Services data on facilities associated with COVID-19 cases on June 6.

The department announced in July that it would release the names of businesses with outbreaks, but backtracked after business groups and Republican lawmakers pushed back against the idea.

After a Journal Sentinel attorney contacted DHS on Sept. 16 on the status of its open records request, the agency told the newspaper it would provide a response by Friday.

A lack of information has helped keep workers, area residents and the public in the dark about the extent of the outbreaks and the risks they face. Many workers at food processing plants with outbreaks told the Journal Sentinel they learned about cases at their companies through coworkers.

As of Thursday, DHS is actively investigating 440 workplaces with positive cases, a tally that does not include health care facilities, schools or long-term care facilities. 

Journal Sentinel editor George Stanley pointed to the organization’s previous reporting on long-term care facilities, meatpacking plants and other businesses that failed to protect their employees or inform the public about COVID-19 outbreaks.

“All we aim to do is let people know where outbreaks are occurring — not identify anybody who is sick,” Stanley said. “These health records belong to the taxpayers and not to any business lobbying group.”

In a news conference Thursday, Gov. Tony Evers, who said he had not yet seen the WMC lawsuit, said lawyers had assessed the public records requests and determined “it is a legitimate release that we’re doing.”

“We have an obligation to the public to obey the law in that area, and we will be releasing to people in the media that have asked for that information in the very near future,” Evers said.

In an email Thursday, DHS spokesperson Elizabeth Goodsitt said the agency would not post the names of the businesses on their website “because we do not think that has public health value.”

In a statement, WMC President Kurt Bauer said the release “has the potential to spread false and misleading information that will damage the brands of Wisconsin employers.”

Bauer said the release could have a chilling effect on businesses by making them afraid to work with their local health departments for fear of having their names published. 

The release of the names of facilities “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,” Bauer said.

The Muskego Area Chamber of Commerce and New Berlin Chamber of Commerce & Visitor Bureau are also plaintiffs along with WMC in the lawsuit.

Three states — Oregon, Colorado and Kansas — currently publish names of businesses with outbreaks, using different thresholds, as do Ozaukee and Washington counties, which share a health department. 

Groups argue for transparency

Public health and open records experts have argued in favor of transparency.

In July, the American Public Health Association and the Johns Hopkins Center for Health Security issued a report recommending that states publish the names of group facilities such as nursing homes and essential workplaces with outbreaks.

Georges Benjamin, executive director of the American Public Health Association, said the information helps the public be more aware of whether they may be at risk of exposure.

For example, he said, someone who attended a barbecue with friends will be more likely to get tested if he or she learns there’s been an outbreak at his friends’ workplace. 

“Transparency enhances our ability to do effective disease containment,” Benjamin said. “The less transparent we are, the more difficult it is.”

Bill Lueders, president of the Wisconsin Freedom of Information Council, said the public has a right to the data to gauge how well public health officials and businesses are responding to outbreaks.

“The objections of the business community are predicated on the worst assumptions about the people of Wisconsin — that they are too stupid and too mean to be provided with this information without flipping out,” Lueders said.

In Washington and Ozaukee counties, the health department publishes the names of facilities with outbreaks but not the number of cases, partly in order to protect the privacy of employees at smaller facilities. Businesses that haven’t had additional cases in 14 days are removed from the dashboard.

Kirsten Johnson, the director of the Washington Ozaukee Health Department, said the local business community has been very cooperative about working with them. 

Johnson said the health department wants people to be aware of where the virus has been present so they they could be aware if they had been potentially exposed

“We are hopeful that giving the information to the community helps people make good decisions,” she said.

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