Wisconsin's health agency shelves plans to name businesses tied to coronavirus cases after pushback from industry lobbyists, GOP

Molly Beck
Milwaukee Journal Sentinel

MADISON - The state health agency has shelved plans to post names of businesses and other places connected to at least two cases of the coronavirus after business groups and Republican lawmakers pushed back against the idea.     

The Department of Health Services decided not to post information online about active investigations as early as this week after receiving feedback during and after a call with local health departments during which they conveyed their intention to do so. 

But the agency also said requests for public records could push the agency to release the details anyway, sparking a debate between groups fearful such a list will erroneously label businesses as unsafe and public health officials' desire to help the public protect themselves from the virus. 

The highest number of coronavirus-related investigations in Wisconsin are in facilities unrelated to health care, according to DHS data. As of Monday, DHS is conducting 361 investigations into workplaces and "other settings." 

During the call with local health departments, DHS announced it would post names of businesses with outbreaks starting this week, according to an excerpt of an email from Bonnie Koenig, environmental health services provider at Public Health Madison & Dane County, obtained by the Milwaukee Journal Sentinel.

A spokeswoman for the Dane County health department also confirmed DHS discussed the plan on the call. 

"We received feedback during that call (and throughout the week) about this proposal. We took all of that input into account and decided that we have no immediate plans to post the information on the website," Elizabeth Goodsitt, spokeswoman for DHS, said in an email to the Journal Sentinel. 

"That said, we informed local health departments that DHS has outstanding records requests from journalists and others where our records custodians and Office of Legal Counsel are making determinations regarding releasing records for specific facility investigations," she said.

Goodsitt also said in an email to the Green Bay Press-Gazette that the agency may release the information "to give Wisconsinites and their communities the information they need to protect themselves from COVID-19."

The idea of a public list worries groups representing business owners like Wisconsin Manufacturers & Commerce, whose leader said the release of such information could "spread false information that will damage the consumer brands of Wisconsin employers, causing them to incur a significant amount of financial losses and reputational damage." 

WMC CEO Kurt Bauer wrote in a July 1 letter to Gov. Tony Evers that the potential release could implicitly cast blame on the businesses even if the cases were not contracted at the establishment. 

"Bad data will undoubtedly lead to bad decision-making, and will further damage Wisconsin’s business community without protecting the public’s health," Bauer wrote. 

But open government advocate Bill Lueders said the release of the information could help the public and businesses make decisions. 

"The idea that businesses will suffer unfair consequences by virtue of being named as places where two or more coronavirus cases have been traced is entirely speculative, especially during a time when large segments of the population don't care enough about the risks of infection to practice social distancing and wear facial masks," he said.

Lueders, who is the president of the Wisconsin Freedom of Information Council, said making the information public would likely encourage businesses to take better precautions to protect customers and staff. 

"My guess is that this would not lead to mass hysteria and may in fact help people and businesses get a better sense of the kinds of businesses that have seen outbreaks," he said. "This is information that people can use to get a better sense of how the virus is spreading and make better decisions."

Brandon Scholz, president of the Wisconsin Grocers Association, said in a letter to Evers the release of such information could risk employees' privacy. 

"As essential businesses, our employees are face-to-face with the public, and therefore are at a higher risk for contracting the disease," Scholz wrote in a July 1 letter. "This is the same situation as in hospitals, and the decision was made to not share the names of hospitals with employees that contracted the disease for this reason. So, why are businesses in similar circumstances going to be outed by the State for being an essential business and serving the public?"

There is no state law requiring businesses to notify the public when an employee tests positive for the virus, a result employers may not be aware of, Scholz wrote. 

The public health department for Ozaukee and Washington counties already releases such information in a public dashboard — a policy department officials created in April. 

Health Officer Kirsten Johnson said the intention was to help the county "return to normal life as quickly as possible."

"The Washington Ozaukee Public Health Department believes people have a right to know where outbreaks are concentrated in order to protect themselves and their loved ones from exposure to the virus," the department wrote in a news release at the time.

Johnson said making the information publicly available helps health department officials when cases increase, making it more difficult to conduct investigations quickly.

RELATED:Public health employees are being harassed by coronavirus skeptics in Ozaukee and Washington counties

Republican lawmakers oppose the idea based on the risk to small businesses, many of which have already been clobbered by the pandemic.

"This could be the final nail in the coffin for many small businesses struggling to stay afloat," GOP Sen. Chris Kapenga of Delafield said in a statement. 

Assembly Majority Leader Jim Steineke, R-Kaukauna, said Evers should "name any state agency that has an employee test positive and the location they work" if the data is released.

Goodsitt said a release of virus investigations in non-health care facilities was, in part, determined after receiving "hundreds of requests for records, including emails, relating to businesses that our records custodians and legal team are currently working through to determine what we legally must withhold."

The USA TODAY NETWORK-Wisconsin received under the public records law a list of records requests DHS received between February through early June, which included 16 requests seeking such information.

Goodsitt said she meant to say "hundreds of records." 

The Journal Sentinel also has filed multiple requests with DHS for public records and information related to virus outbreaks, including the names of food processing plants with outbreaks and the number of workers at each plant who have been infected or died. The requests have not been fulfilled as of Monday.

The Green Bay Press-Gazette on Thursday sued Brown County, claiming county officials violated Wisconsin’s Open Records Law when they blacked out names and locations from public records listing 93 workplaces that are, or have been, subject to health investigations because multiple employees tested positive for coronavirus.

The records list businesses ranging from residential-living facilities and manufacturing plants to food-production establishments and two restaurants. Records show the businesses are linked to between two and 14 cases. Nine businesses are linked to fatalities.

One is linked to five deaths; another is linked to four.

The lawsuit asks a circuit judge to order the county to release the records without redactions. The lawsuit alleges the county’s decision to release incomplete records relies on “discredited alleged public policy rationales” that fail to prove the information in the records is “exceptional” so that it justifies not disclosing specifics.

David Hemery, Brown County’s corporation counsel, contends in a written decision there is a greater public interest in not revealing information specific to businesses, including what communities they’re located in, writing “it was determined that the public interest in releasing the names of businesses/entities that simply employ an individual or individuals that tested positive for COVID-19, and may have contracted it elsewhere, was outweighed by harm to the public interest that releasing such information could do."

He also wrote that a business “could find its operations negatively affected by such a release, through no fault of its own, to the point of closure, loss of jobs and associated negative effects on the local community/public.”

Reporters Patrick Marley and Maria Perez of the Journal Sentinel and Doug Schneider of the Green Bay Press-Gazette contributed to this report.

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.