In a 4-3 decision by Justice Rebecca Frank Dallet, the Wisconsin Supreme Court held that Wisconsin’s public records law prohibits pre-release judicial review of the state’s decision to provide 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,” as well as “the number of such tests or contacts at each business.”[1]

The state’s Department of Health Services had decided to release the list in response to a public records request by the Milwaukee Sentinel Journal.[2] Before releasing the list, though, the DHS notified Wisconsin Manufacturers and Commerce, the state’s largest business association.[3] WMC, joined by several other organizations as plaintiffs, sued the DHS and several state officials to block the release of the list.[4] They sought declaratory and injunctive relief and alleged that the release would violate Wisconsin’s patient health care records statutes.[5] But WMC brought its case under neither the patient health care records statutes nor the public records statute. Instead, it brought its case under Wisconsin’s Declaratory Judgment Act, “requesting a declaration that DHS’s planned release would be unlawful under either the patient health care records statutes or the public records law.”[6] It also sought an injunction.

The trial court allowed the Milwaukee Sentinel Journal to intervene. It found that WMC had standing to challenge the release of the records under the Declaratory Judgment Act, and it granted WMC’s motion for a temporary injunction to prevent the release of the records, denying the state’s and the newspaper’s motions to dismiss.[7]

After the trial court denied the motions to dismiss, WMC filed a motion to amend its complaint. But before the trial court could rule on that motion, the state and the newspaper requested to file an interlocutory appeal with Wisconsin’s intermediate court of appeals, challenging the trial court’s denial of their motions to dismiss. The intermediate appellate court granted the motions for interlocutory appeals and reversed the trial court.[8] WMC then petitioned the Wisconsin Supreme Court for review. It challenged only the merits of the decision, not the intermediate court’s decision to grant the state’s and newspaper’s requests to file an interlocutory appeal.[9]

In affirming the intermediate appellate court’s decision, the Wisconsin Supreme Court started “with some background principles about the public records law.”[10] It said that the “public records law provides a requester with the right ‘to inspect any record,’ ‘[e]xcept as otherwise provided by law.’”[11] It noted that the statute said “that ‘no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record.’”[12] It also noted that the legislature had codified this rule in response to earlier decisions of the court, “which [had] held that public employees had a common-law right to notice and pre-release judicial review before records concerning them could be released.”[13] The court said that in enacting Wisconsin’s current public records law, the legislature had included three enumerated exceptions to the general rule of no pre-release notice or judicial review. In addition to those three enumerated exceptions, the court said that the law “also contains a catchall exception, providing that notice or pre-release judicial review may also be available when ‘otherwise provided by statute.’”[14]

While the court assumed without deciding that WMC had standing to challenge the release, the court rejected WMC’s arguments that it was entitled to pre-release review under the Declaratory Judgment Act. The court said that the Declaratory Judgment Act was not a qualifying statute for WMC’s claims under the catchall exception that “otherwise provided” for review since there is no right “to block the release of a public record unless otherwise specified” and WMC has no statute to base its claims on.[15] The court also rejected WMC’s arguments that a common-law right to pre-release judicial review, which the Wisconsin Supreme Court had recognized in earlier cases, had survived the enactment of Wisconsin’s public records law. In fact, the court said that Wisconsin’s public records law had “clearly and unambiguously eliminated the common-law rights on which WMC relies.”[16]

Justice Annette Ziegler, joined by Justice Patience Roggensack and Justice Rebecca Grassl Bradley, dissented. Justice Ziegler wrote that the “court of appeals, and now this court, fails to consider the fact that a motion to amend the pleadings was pending before the [trial] court.”[17] Given the pending motion, in her view, the court of appeals should not have accepted the interlocutory appeals requests. More importantly to her, though, was the fact that the majority failed to appreciate the implications of its decision. She said that the majority engages “in a monocular view of one statute and makes no mention of the perhaps unintended consequences of its action. It closes the courthouse doors to anyone who may wish to challenge the release of personal medical information. This is egregious error.”[18]

Going forward, this case makes clear that under current Wisconsin law, there is generally no right, with only narrow exceptions, to pre-release judicial review of a decision to release documents pursuant to a public records request.


[1] Wis. Mfrs. and Commerce v. Evers, 2022 WI 38, slip op. at 1 (Wis. Jun. 7, 2022).

[2]Wis. Mfrs. and Commerce, slip op at 1. See Wis. Stat. § 19.356 (2019-20) (Wisconsin’s public records law notice provision).

[3] Id at 2.

[4] Id at 2-3.

[5]Id. at 3. See Wis. Stat. § 806.04(2) (Wisconsin Declaratory Judgment Act); Wis. Stat. §§ 146.81, 146.82 (Wisconsin patient health care records statutes).

[6] Wis. Mfrs. and Commerce, slip op. at 3-4.

[7] Id. at 4.

[8] Id. at 5.

[9] Id.

[10] Id. at 6.

[11] Id. (citing Wis. Stat. § 19.35(1)(a)).

[12] Id. (citing Wis. Stat. § 19.356(1)).

[13] Id. at 6-7 (citing Woznicki v. Erickson, 202 Wis. 2d 178 (Wis. 1996) and Milwaukee Teachers’ Educ. Ass’n v. Milwaukee Bd. of Sch. Dirs., 227 Wis. 2d 779 (Wis. 1999)).

[14] Id. at 7 (citing Wis. Stat. § 19.356(1)).

[15] Id at 9.

[16] Id. at 11.

[17] Wis. Mfrs. and Commerce, dissenting slip op. at 1 (Ziegler, C.J. dissenting).

[18] Id.

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