Wis. Mfrs. & Commerce v. Evers

• Decision Date: 07 June 2022
• Docket Number: 2020AP2081-AC & 2020AP2103-AC
• Citation: 977 N.W.2d 374,2022 WI 38
• Parties: WISCONSIN MANUFACTURERS AND COMMERCE, Muskego Area Chamber of Commerce and New Berlin Chamber of Commerce and Visitors Bureau, Plaintiffs-Respondents-Petitioners, v. Tony EVERS, in his official capacity as Governor of Wisconsin, Karen Timberlake, in her official capacity as Interim Secretary of the Wisconsin Department of Health Services and Joel Brennan, in his official capacity as Secretary of the Wisconsin Department of Administration, Defendants, Milwaukee Journal Sentinel, Intervenor-Appellant.
• Court: Wisconsin Supreme Court

977 N.W.2d 374
2022 WI 38

WISCONSIN MANUFACTURERS AND COMMERCE, Muskego Area Chamber of Commerce and New Berlin Chamber of Commerce and Visitors Bureau, Plaintiffs-Respondents-Petitioners,
v.
Tony EVERS, in his official capacity as Governor of Wisconsin, Karen Timberlake, in her official capacity as Interim Secretary of the Wisconsin Department of Health Services and Joel Brennan, in his official capacity as Secretary of the Wisconsin Department of Administration, Defendants,

Milwaukee Journal Sentinel, Intervenor-Appellant.

No. 2020AP2081-AC & 2020AP2103-AC

Supreme Court of Wisconsin.

Oral Argument: February 14, 2022
Opinion Filed: June 7, 2022

For the plaintiffs-respondents-petitioners there were briefs filed by Ryan J. Walsh, Amy C. Miller, Scott E. Rosenow and Eimer Stahl LLP, Madison and WMC Litigation Center, Madison. There was an oral argument by Scott E. Rosenow.

For the intervenor-appellant there was a brief by Thomas C. Kamenick and the Wisconsin Transparency Project, Port Washington and Kamenick Law Office, LLC, Port Washington. There was an oral argument by Thomas C. Kamenick.

For the defendants there was a brief filed by Clayton P. Kawski and Anthony D. Russomanno, assistant attorneys general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Clayton P. Kawski, assistant attorney general.

An amicus curiae brief was filed by Matthew M. Fernholz and Cramer, Multhauf Hammes, LLP, Racine, for Waukesha Business Alliance, Oshkosh Chamber of Commerce, Racine Area Manufacturers

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and Commerce, Wisconsin Grocers Association, Venture Cooperative, and Wisconsin Dairy Alliance.

An amicus curiae brief was filed by Robert I. Fassbender and Great Lakes Legal Foundation, Madison, for National Federation of Independent Business, Wisconsin Restaurant Association, and Restaurant Law Center.

An amicus curiae brief was filed by Natalie A. Harris and Baron Harris Healey, Chicago, for Reporters Committee for Freedom of the Press and 13 Media Organizations.

An amicus curiae brief was filed by Lane E.B. Ruhland and Ruhland Law and Strategy, LLC, Waunakee, for National Federation of Independent Business Small Business Legal Center, Wisconsin Restaurant Association, Restaurant Law Center, Oshkosh Chamber of Commerce, Racine Area Manufacturers and Commerce, Wisconsin Dairy Alliance, Wisconsin Builders Association, Greater Wausau Chamber of Commerce, Waukesha County Business Alliance, Associated Builders and Contractors of Wisconsin, Eau Claire Area Chamber of Commerce, Wisconsin Grocers Association, and Wisconsin Paper Council.

An amicus curiae brief was filed by Christa O. Westerberg, Aaron G. Dumas, and Pines Bach LLP, Madison, for Wisconsin Freedom of Information Council, Wisconsin Broadcasters Association, Wisconsin State Journal and the Capital Times.

DALLET, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ., joined.

REBECCA FRANK DALLET, J.

¶1 The Milwaukee Journal Sentinel made public records requests to the Department of Health Services (DHS) for certain documents related to the COVID-19 pandemic. After learning that DHS planned to respond by releasing a list of "all Wisconsin businesses with over 25 employees that have had at least two employees test positive for COVID-19 or that have had close case contacts that were investigated by contact tracers" and the number of such tests or contacts at each business, Wisconsin Manufacturers and Commerce and two other trade associations (WMC)¹ brought an action seeking declaratory and injunctive relief to stop the release. The issue is whether the public records law's general prohibition on pre-release judicial review of decisions to provide access to public records bars WMC's claims.² See Wis. Stat. § 19.356(1) (2019-20).³ We conclude that it does, and therefore affirm the court of appeals’ decision.

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I

¶2 As part of its response to the COVID-19 pandemic, DHS collected data and compiled a list of Wisconsin businesses with more than 25 employees that had two or more employees test positive for COVID-19 or that had close contacts investigated by contact tracers.⁴ The list includes the number of positive tests or contacts at those businesses. Before releasing the list in response to the Journal Sentinel's public-records requests, DHS notified WMC of its plans. This was a courtesy, as the parties agree that DHS was not statutorily required to notify WMC before releasing the records.

¶3 The day before the planned release, WMC filed suit in circuit court,⁵ naming DHS and a number of state officials as defendants.⁶ WMC alleged that releasing the list would violate the patient health care records statutes, Wis. Stat. §§ 146.81 and 146.82, in two ways: (1) it would allow for the identification of its member businesses’ employees; and (2) the list is derived "from diagnostic test results and the records of contact tracers investigating COVID-19" and therefore must be kept confidential as a patient health care record. Additionally, WMC asserted that the public records law's common-law balancing test weighs against disclosure, because releasing the list would injure the reputations of its member businesses and violate employees’ privacy rights. Nevertheless, WMC did not bring its case directly under either the patient health care records statutes or the public records law. Instead, it brought its claims pursuant to the Declaratory Judgments Act, Wis. Stat. § 806.04, requesting a declaration that DHS's planned release would be unlawful under either the patient health care records statutes or the public records law. See Wis. Stat. § 806.04(2) (authorizing a party to "obtain a declaration of rights, status or other legal relations" under a statute). WMC also sought an injunction barring the records’ release.

¶4 The circuit court granted a temporary restraining order halting the planned release of the list. The State then moved to dismiss, as did the Journal Sentinel (which the circuit court had allowed to intervene). They argued that WMC lacked standing and that its action was barred by Wis. Stat. § 19.356(1), which generally prohibits pre-release judicial review of a decision to provide a requester with access to public records unless "otherwise provided by statute." The circuit court denied the motions, concluding that § 19.356(1) did not apply to WMC's claims. The circuit court

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also held that WMC had standing to challenge the release of the records under the Declaratory Judgments Act because it fell within the "zone of interests" protected by the patient health care records statutes. Additionally, the circuit court granted WMC's motion for a temporary injunction preventing DHS from releasing the records.

¶5 The court of appeals granted the State's and the Journal Sentinel's petitions for leave to appeal the order denying their motions to dismiss⁷ and reversed the circuit court's decision. Wis. Mfrs. & Com. v. Evers, 2021 WI App 35, 398 Wis. 2d 164, 960 N.W.2d 442. The court of appeals held that WMC failed to state a claim upon which relief could be granted because "the statutes on which [WMC] rel[ies] to support [its] declaratory judgment action ‘do not give legal recognition to the interest’ [it] assert[s]." Id., ¶8 (alteration omitted) (quoting Moustakis v. DOJ, 2016 WI 42, ¶3 n.2, 368 Wis. 2d 677, 880 N.W.2d 142 ). Relatedly, the court of appeals rejected the argument that WMC had such a legally protected interest under various standing doctrines. See id., ¶27. The court of appeals also analyzed the patient health records statutes, noting WMC's concession that Wis. Stat. § 146.84(1)(c) provides a cause of action only to "an individual," not to WMC or its member businesses. Id., ¶¶18-19.

¶6 WMC petitioned for review, challenging the merits of the court of appeals’ decision. It did not seek review of the court of appeals’ decision granting the State's and Journal Sentinel's petitions for leave to file an interlocutory appeal. We granted WMC's petition.

II

¶7 We review de novo a lower court's decision to grant or deny a motion to dismiss. State ex rel. City of Waukesha v. City of Waukesha Bd. of Rev., 2021 WI 89, ¶11, 399 Wis. 2d 696, 967 N.W.2d 460. In doing so, we take as true all well-pleaded factual allegations, but do not accept legal conclusions as true. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693. Our analysis also requires us to interpret statutes. Statutory interpretation is a question of law we review de novo. City of Waukesha, 399 Wis. 2d 696, ¶12, 967 N.W.2d 460.

III

A

¶8 We begin with some background principles about the public records law. The public records law provides a requester with the right "to inspect any record," "[e]xcept as otherwise provided by law." Wis. Stat. § 19.35(1)(a). Public records are thus presumptively open for inspection unless there are statutory or common law exceptions to disclosure, and public access may be withheld "only in an exceptional case." Wis. Stat. § 19.31 ; Linzmeyer v. Forcey, 2002 WI 84, ¶¶10-11, 254 Wis. 2d 306, 646 N.W.2d 811. Once a request is made, it must be responded to or denied "as soon as practicable and without delay." § 19.35(4)(a). The decision of whether to permit public access to a record in response to a request lies with the custodian of the record, not its subject. See

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State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 558, 334 N.W.2d 252 (1983).

¶9 Related to that premise is the general rule under Wis. Stat. § 19.356(1) that "no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record." See Wis. Stat. § 19.356(1) ; see also Moustakis, 368 Wis. 2d 677, ¶24, 880 N.W.2d 142. That rule was adopted by the legislature in response to our decisions in Woznicki v. Erickson, 202 Wis....