Open records suit costs county, court rules in its favor
By Heather Graves
BROWN COUNTY – Since July 2020, the Brown County Corporation Counsel’s office has dealt with an open records suit filed by the Green Bay Press-Gazette and reporter Doug Schneider.
“It’s difficult to estimate the number of hours that I and other county staff needed to put into responding to the Gannett public records request and defending the lawsuit, as we do not keep track of our time by fractions of hours as private attorneys do for billing purposes,” Corporation Counsel David Hemery said. “But, I can say the amount of time necessary was significant, and put a strain on my and other county offices, including the Brown County Public Health Department, which could have better served the community by devoting said time to COVID-19 prevention and remediation efforts.”
Hemery said through the end of August, the county has spent $54,266 defending the lawsuit.
He said he expects an additional bill for further fees and expenses for September to come in mid-October.
The lawsuit stems from an open records request Schneider and the Press-Gazette made in June 2020 for the names of businesses in Brown County being investigated for COVID-19 outbreaks.
Hemery provided Schneider the reports requested, but redacted the names of the businesses.
“I only redacted the name of the businesses, but I left the categories in,” Hemery said. “(They included) all different categories, such as retirement homes. And that would allow the requester, the Press-Gazette, to say ‘Retirement homes, here are the numbers at retirement homes,’ without saying this one home that only has five people, well two of them are positive. So I allowed broad categories. I am trying to give you what I can here, but I can’t report every business that has a COVID-positive person in it.”
According to Wisconsin’s Department of Health Services, an outbreak of COVID-19 is defined as two or more workplace-related COVID-19 cases in the same building, with onset dates within 14 days of each other.
If two or more laboratory-confirmed cases of COVID-19 are identified in the facility with onset dates within 14 days of each other, and the public health investigation identifies a link between the illnesses and the building, the outbreak is then a confirmed COVID-19 outbreak associated with the business.
Chad Weininger, director of administration for the county, said the way the state identifies outbreaks only takes partial facts into account.
“I could have gone in (a business) for 2 minutes and when the tracer called me I’d be like ‘Oh yeah, I was in there,’” Weininger said. “The data (the Press-Gazette) would have been using would really not have represented the truth or the facts of the matter.”
Hemery said he didn’t want to single out businesses for things which were possibly out of their control.
“A business that does everything right – engages in social distancing, utilizes personal protective equipment, sanitizes regularly, utilizes plexiglass barriers and follows other local, state and federal guidance and recommendations regarding preventing the spread of COVID-19 – 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 other associated negative effects on the local community/public,” Hemery said in response to Schneider’s request.
The plaintiffs (Schneider and the Press-Gazette) argued “neither state nor federal law prohibits disclosure of the redacted names of businesses in the document,” according to the Sept. 21 decision by Judge Timothy Hinkfuss denying their motion.
They further argue “the public policy balancing test favors disclosure of the name of the businesses.”
The county argued the opposite, saying “the public policy balancing test favors nondisclosure.”
The report also states “the county argues that Wisconsin State Statutes section 146.82 prohibits disclosure of the business names and that the federal Health Insurance Portability and Accountability Act prohibits disclosure of the business names.”
Hinkfuss agreed with the county.
In his decision, he said the county’s reasoning behind redacting business names was justified because of its possible effect on the economy.
“Because of linkages, the business in question may not have the outbreak,” Hinkfuss said. “Yes, the county could offer a disclaimer. But the word itself ‘investigation’ conjures up negative thoughts.”
The plaintiff’s attorney, April Barker of Schott, Bublitz, and Engel, a Waukesha law firm, released the following statement.
“The plaintiffs obviously disagree with the outcome, but appreciate the time and consideration that the court invested in the process,” Barker said. “My clients are considering an appeal, but have not yet made a decision.”
The Press-Gazette has 90 days to appeal the decision.
Press Times Editor Ben Rodgers contributed to this article.