Here is my full column that ran in the Washington County Daily News earlier this week.
Last year, Wisconsin Manufacturers & Commerce sued Governor Tony Evers to stop the wholesale release of the names of businesses where employees had COVID-19 or been exposed to someone who did. Last week, the Wisconsin Supreme Court agreed to take up the case.
At issue is the public disclosure of private information that the government has been collecting during the pandemic. In this case, the state government, through medical disclosures and contract tracing efforts, has kept a list of the businesses whose employees contracted COVID-19 or came into contact with someone who did.
After first saying that such information should not be made public, Governor Evers reversed himself and agreed to release the information to news outlets. WMC sued to stop the release, obtained an injunction to that effect, and now the case is headed to the state Supreme Court.
Wisconsin’s Open Records Laws are generally very strong and favor the release of all information held by government unless there is a compelling reason to not do so. In this case, there are several reasons to deny public release. The release of the information would unfairly damage Wisconsin’s small businesses and potentially damage the effort to combat this and future pandemics.
The public disclosure of businesses where employees have had COVID-19 or have been exposed to someone who did would cause undue harm to those businesses. The mere disclosure of the information gives the false impression that somehow the businesses were at fault, or at least complicit, for the spread of COVID-19, but no such connection can rationally be made. The employees might have contracted COVID-19 anywhere, but only their employers would be listed.
While not a fair conclusion, Wisconsin’s small businesses that show up on that list might lose potential patrons who think that the businesses are unclean, infection-spreading, hot spots. This lumps in businesses who followed every rule or advice issued from health agencies (however wrong they were) with those businesses that took little or no precautions. The fact that one employee contracted COVID-19 or encountered someone who did puts all of those businesses on the same unfair list.
Furthermore, employment is fluid. There is no guarantee that an employee with COVID-19 last May still works at the same employer. All the list would show is that an employee had COVID-19 sometime in the past. It is not current or actionable data. Wisconsin’s small businesses have suffered enough and do not deserve one more hit from Governor Evers by having their names thrown into the public space.
There is also the potential that the public disclosure of the list of businesses will impede future pandemic mitigation efforts. The collection of the data, at least in the early days of the pandemic before it became widespread, was a useful tool to identify hot spots and focus our efforts. If business owners or employees are fearful that sharing information with public health officials may one day be released to the public, they will be less likely to do so in the future. It is always good advice to tell your government as little about yourself as possible and the threat of public shaming only supports aggressive privacy.
Against these serious negative consequences from a public disclosure, Evers must balance any positive reasons to release the information. Evers has a strong history of only releasing public information when absolutely necessary or when it might damage a political opponent, so why is he so adamant to release this information? What compelling public interest does it serve that would outweigh the damage done to Wisconsin’s businesses and efforts to fight future pandemics? Why is Evers so intent on releasing the information despite his earlier attestations that the information should not be made public? What changed? Other than a deliberate attack on Wisconsin’s businesses to appease Evers’ radical supporters, there does not seem to be any rational reason.
Governor Evers should have the common sense to keep this information out of the public space, but since he does not, hopefully Wisconsin’s Supreme Court will right this attempted wrong.