2022 WI 38

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP2081-AC & 2020AP2103-AC

COMPLETE TITLE: 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.

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 398 Wis. 2d 164,960 N.W.2d 442

PDC No:2021 WI App 35 - Published 

OPINION FILED: June 7, 2022 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: February 14, 2022 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Waukesha 

JUDGE: Lloyd V. Carter 

JUSTICES:

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.

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiffs-respondents-petitioners there were 

briefs filed by Ryan J. Walsh, Amy C. Miller, Scott E. Rosenow 
2

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. 
2022 WI 38

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP2081-AC & 2020AP2103-AC

(L.C. No. 2020CV1389)

STATE OF WISCONSIN : IN SUPREME COURT

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.

FILED

JUN 7, 2022

Sheila T. Reiff

Clerk of Supreme Court

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.

REVIEW of a decision of the Court of Appeals. Affirmed. 
No. 2020AP2081-AC & 2020AP2103-AC 

1

¶1 REBECCA FRANK DALLET, J. 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. 

 

1 The associations are the Muskego Area Chamber of Commerce 

and the New Berlin Chamber of Commerce and Visitors Bureau. For 

ease of reference, we refer to all three groups collectively as 

"WMC."

2 The parties' briefs also focused on the question of 

whether WMC has standing to assert its claims. Although

standing is relevant to whether a party may assert a declaratory 

judgment claim, see Fabick v. Evers, 2021 WI 28, ¶11, 396 

Wis. 2d 231, 956 N.W.2d 856, we resolve this case on other 

grounds and therefore assume without deciding that WMC has 

standing. See Voters with Facts v. City of Eau Claire, 2018 WI 

63, ¶26, 382 Wis. 2d 1, 913 N.W.2d 131 (assuming plaintiffs had 

standing to assert their declaratory judgment claims while 

concluding that the complaint failed to state a claim). 

3 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version.
No. 2020AP2081-AC & 2020AP2103-AC 

2

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 

 

4 The information contained in these records was apparently 

compiled based on data DHS obtained to investigate and report on 

public-health issues pursuant to its duties under Wis. Stat. 

chs. 250 and 252. Those duties include "establish[ing] and 

maintain[ing] surveillance activities sufficient to detect any 

occurrence of acute, communicable or chronic diseases," 

"analyz[ing] occurrences, trends and patterns of" disease, and 

"distribut[ing] information based on the analyses." Wis. Stat. 

§ 250.04(3)(a), (b)1. DHS may obtain data in a number of 

different ways, including from local health officers or health 

care providers. See Wis. Stat. § 252.05(1); Wis. Admin. Code 

DHS § 145.04(1)(a) (June 2018). Laboratories are also required 

to report "specimen results that indicate that an individual 

providing the specimen has a communicable disease." § 

252.05(2). WMC does not challenge DHS's data-collection 

methods. 

5 The Honorable Lloyd V. Carter of the Waukesha County 

Circuit Court presided.
No. 2020AP2081-AC & 2020AP2103-AC 

3

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 commonlaw balancing test weighs against disclosure, because releasing 

the list will 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. 

 

6 Specifically, the complaint named Governor Evers, Andrea 

Palm (then the Secretary-Designee of DHS), and Joel Brennan (the 

Secretary of the Department of Administration). While this case 

was on appeal, Karen Timberlake replaced Palm as the SecretaryDesignee of DHS, and, as a result, was substituted for Palm as a 

party. We refer to these defendants collectively (along with 

DHS) as the State. 
No. 2020AP2081-AC & 2020AP2103-AC 

4

¶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 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, 

 

7 Shortly after the circuit court denied the State and 

Journal Sentinel's motions to dismiss, WMC filed a motion for 

leave to file an amended complaint. Before the circuit court 

ruled on that motion, the State and Journal Sentinel filed their 

petitions for leave to file an interlocutory appeal. The court 

of appeals granted those petitions, and WMC has not challenged 

that decision. WMC's motion to amend remains pending in the 

circuit court and, on remand, that court must address whether to 

grant the motion. 
No. 2020AP2081-AC & 2020AP2103-AC 

5

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 
No. 2020AP2081-AC & 2020AP2103-AC 

6

requires us to interpret statutes. Statutory interpretation is 

a question of law we review de novo. City of Waukesha, 399 

Wis. 2d 696, ¶12. 

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 State ex rel. 

Bilder v. Township of Delevan, 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. That rule was adopted by the 

legislature in response to our decisions in Woznicki v. 
No. 2020AP2081-AC & 2020AP2103-AC 

7

Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996), and Milwaukee 

Teachers' Education Association v. Milwaukee Board of School 

Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999), which held 

that public employees had a common-law right to notice and prerelease judicial review before records concerning them could be 

released. See Moustakis, 368 Wis. 2d 677, ¶27. 

¶10 Although § 19.356(1) generally prohibits pre-release 

notice or judicial review of a response to a public records 

request, there are exceptions. Three are enumerated in 

§ 19.356(2)(a)1.-3., and apply to certain categories of records 

regarding public employees or records "obtained by the authority 

through a subpoena or search warrant." § 19.356(2)(a)2. These 

exceptions were enacted to "limit the rights afforded by 

[Woznicki and Milwaukee Teachers] 'only to a defined set of 

records pertaining to employees residing in Wisconsin.'" 

Moustakis, 368 Wis. 2d 677, ¶27 (quoting 2003 Wis. Act. 47, 

Joint Legis. Council Prefatory Note). In addition to the 

specific exceptions, Wis. Stat. § 19.356(1) also contains a 

catchall exception, providing that notice or pre-release 

judicial review may also be available when "otherwise provided 

by statute." Id.

B

¶11 Turning to this case, WMC offers two reasons why the 

general prohibition on pre-release judicial review of a response 

to a public records request does not apply to its claims at all. 

First, it argues that pre-release judicial review is almost 
No. 2020AP2081-AC & 2020AP2103-AC 

8

always available under the Declaratory Judgments Act. Second, 

it claims that § 19.356(1) did not eliminate the common-law 

right to pre-release judicial review.

1

¶12 WMC argues that the general prohibition against prerelease judicial review in § 19.356 does not apply to 

declaratory judgment claims because, if it does, WMC has no 

statutory remedy for improper disclosures of public records. 

Typically, a declaratory judgment claim is available when a 

statute does not provide for an equally "speedy, effective, and 

adequate" remedy. See Lister v. Bd. of Regents, 72 Wis. 2d 282, 

307–08, 240 N.W.2d 610 (1976); see also Lamar Cent. Outdoor, LLC 

v. DOT, 2008 WI App 187, ¶19, 315 Wis. 2d 190, 762 N.W.2d 745. 

Conversely, a party may not bring a declaratory judgment claim 

when the remedy provided by statute is "at least as well-suited 

to the plaintiff's needs as declaratory relief." See Lister, 72 

Wis. 2d at 307–08. In WMC's view, § 19.356 provides an adequate 

remedy only to the "three narrow categories" of individuals 

specified in § 19.356(2)(a)1.-3., since they are expressly 

entitled to pre-release judicial review. See Wis. Stat. 

§ 19.356(2)(a)1.-3. (providing for pre-release notice and 

judicial review when certain employment records or records

obtained via subpoena or search warrant are about to be 

released). WMC asserts that, by contrast, § 19.356 provides 

nothing for anyone——including WMC——who falls outside those three 
No. 2020AP2081-AC & 2020AP2103-AC 

9

narrow categories.8 Thus, relying on Lister and Lamar Central, 

WMC argues that a declaratory judgment claim must be available 

to everyone who falls outside of § 19.356(2)(a). Otherwise they 

would have no remedy, let alone an adequate one. 

¶13 Neither Lister nor Lamar Central support WMC's 

position, however. In both of those cases, the plaintiffs 

attempted to enforce an underlying right through a declaratory 

judgment action even though a statute provided an exclusive 

procedure for enforcing that right. See Lister, 72 Wis. 2d at 

307-09 (right to collect debts from state agencies); Lamar Cent. 

Outdoor, 315 Wis. 2d 190, ¶24 (right to challenge a DOT order to 

remove roadside signs). The question in both cases was thus 

whether the statute's exclusive enforcement procedure barred 

declaratory judgment claims premised on that underlying right. 

See Lister, 72 Wis. 2d at 307-09; Lamar Cent. Outdoor, 315 

Wis. 2d 190, ¶¶32–33. Section 19.356(1) is different. It 

states a general rule that no one has the right to a particular 

remedy——pre-release judicial review——and then enumerates 

exceptions to that rule. See Wis. Stat. § 19.356(1), (2)(a)1.-

3. Thus, § 19.356 makes clear that no one has a right to block 

the release of a public record unless otherwise specified.

 

8 There appears to be tension between this argument and 

WMC's alternative argument that the Declaratory Judgments Act is 

a statute that "otherwise provide[s]" for pre-release judicial 

review under § 19.356, and thus (if WMC is correct) provides 

them with a remedy. 
No. 2020AP2081-AC & 2020AP2103-AC 

10

Because there is no underlying right to pre-release judicial 

review, the analysis in Lister and Lamar Central is inapposite.9

2

¶14 WMC's second argument, that § 19.356(1) did not 

clearly abrogate the common law rules for pre-release notice and 

judicial review, also fails. This argument took several forms 

throughout this case, but we understand WMC to be arguing that 

§ 19.356 did not eliminate the common law rights to pre-release 

notice and judicial review that we recognized in Woznicki and 

Milwaukee Teachers. See Moustakis, 368 Wis. 2d 677, ¶27 

(explaining that Woznicki and Milwaukee Teachers "held that 

public employees were entitled to notice and to seek pre-release 

judicial review of the response to records requests pertaining 

to them"). WMC contends that § 19.356 applies only to the kinds 

of employment records that were at issue in those cases. 

 

9 This is also why we reject WMC's related argument that 

reading § 19.356(1) to bar its claims would mean that § 19.356 

"implicitly repeal[ed]" the Declaratory Judgments Act. See

Heaton v. Larsen, 97 Wis. 2d 379, 392-93, 294 N.W.2d 15 (1980) 

("Repeals by implication are not favored in the law." (quoting 

another source)). This argument is underdeveloped and 

confusing, but so far as we can tell, WMC argues that any time a 

statute precludes declaratory relief, that is the same as 

partially "repealing" the Declaratory Judgments Act. WMC cites 

no authority for this novel claim. And, in any event, § 19.356 

did not partially repeal the Declaratory Judgments Act——

implicitly or otherwise. As explained above, by adopting 

§ 19.356, the legislature expressly limited the right to prerelease judicial review. In doing so, it did not alter the 

Declaratory Judgments Act in any way.
No. 2020AP2081-AC & 2020AP2103-AC 

11

Because WMC's claims do not involve those kinds of records, it 

concludes that § 19.356 does not apply. 

¶15 Section 19.356(1), however, clearly and unambiguously 

abrogated the common law rights created in Woznicki and 

Milwaukee Teachers. See United Am., LLC v. DOT, 2021 WI 44, 

¶15, 397 Wis. 2d 42, 959 N.W.2d 317. The statute provides in no 

uncertain terms that "[e]xcept as authorized in this section or

as otherwise provided by statute . . . no person is entitled to 

judicial review of the decision of an authority to provide a 

requester with access to a record." Section 19.356 does not 

distinguish between different categories of individuals or 

records; it states a general rule that applies to all claims for 

pre-release judicial review and provides two types of 

exceptions. The first are those contained in § 19.356(2)-(9), 

and allow for pre-release notice and judicial review when the 

types of records at issue in Woznicki and Milwaukee Teachers are 

involved, subject to heightened rules and expedited procedures. 

The second exception is for all other instances in which a 

statute "otherwise provide[s]" for pre-release notice or 

judicial review. This statutory language——a general prohibition 

subject to statutorily enumerated exceptions——cannot coexist 

with a common-law entitlement to pre-release notice or judicial 

review. Therefore, we hold that § 19.356(1) clearly and 

unambiguously eliminated the common-law rights on which WMC 

relies. 
No. 2020AP2081-AC & 2020AP2103-AC 

12

C

¶16 Anticipating our conclusion that § 19.356(1) applies 

to the claims it asserts in this case, WMC argues that the 

Declaratory Judgments Act, Wis. Stat. § 806.04, falls within the 

exception to § 19.356(1) for statutes that "otherwise provide[]" 

for pre-release judicial review of records responses. We reject 

this claim because it is contrary to the text of both the Act 

itself and § 19.356. 

¶17 To begin with, the text of the Declaratory Judgments 

Act is broadly applicable and looks nothing like the other 

statutes where the legislature has specifically authorized 

actions to block an impending release of records. The 

Declaratory Judgments Act states generally that "[a]ny 

person . . . whose rights, status or other legal relations are 

affected by a statute . . . may have determined any question of 

construction or validity arising under 

the . . . statute . . . and obtain a declaration of rights, 

status, or other legal relations thereunder." Wis. Stat. 

§ 806.04(2). It provides a means "to settle and to afford 

relief from uncertainty and insecurity with respect to rights, 

status and other legal relations." Wis. Stat. § 806.04(12). In 

contrast, the legislature has adopted several statutes 

specifically creating a right to block the release of certain 

types of records. For example, the parties agree that Wis. 

Stat. § 146.84(1)(c) authorizes a patient to obtain pre-release 

judicial review when their confidential health records are in 

danger of being released. See Wis. Stat. § 146.84(1)(c) ("An 
No. 2020AP2081-AC & 2020AP2103-AC 

13

individual may bring an action to enjoin any violation" of 

certain confidentiality provisions).10 Similarly, Wis. Stat. 

§§ 51.30(9)(c), 46.90(9)(c), 55.043(9m)(c), and 196.135 also 

explicitly provide for injunctive relief barring the release of 

records. E.g., § 51.30(9)(c) (providing that "[a]n individual 

may bring an action to enjoin any violation of this section,"

which generally prohibits the disclosure of certain types of 

medical treatment records). Section 196.135 is even more 

direct, expressly referencing § 19.356 and authorizing both prerelease notice and an opportunity for judicial review of a 

planned records response. See § 196.135(4)(b). 

¶18 Unlike these statutes, the Declaratory Judgments Act 

does not explicitly authorize an action to enjoin the release of 

a record. Indeed, it says nothing at all about records. As 

explained above, however, other statutes address the issue, 

strongly suggesting that the Act is not a statute that 

"otherwise provide[s]" for pre-release judicial review. See

Rudolph v. Indian Hills Estates, Inc., 68 Wis. 2d 768, 775, 229 

N.W.2d 671 (1975) (concluding that the Declaratory Judgments Act 

did not provide a claim for the dissolution of a corporation 

 

10 Although WMC alleges that DHS's planned release of its 

list of employers would violate the patient health care records 

statutes, it concedes that it cannot rely on those statutes to 

obtain pre-release judicial review here because it is not an 

"individual" authorized to seek injunctive relief under § 

146.84(1)(c). See § 146.84(1)(c) (referring to violations of §§ 

142.82 and 142.83, both of which protect "patients"; in turn, 

"patient" is defined in § 146.81(3) as "a person who receives 

health care services from a health care provider").
No. 2020AP2081-AC & 2020AP2103-AC 

14

where such actions were already expressly provided for in other

statutes). 

¶19 Moreover, concluding that the Declaratory Judgments 

Act "otherwise provide[s]" for pre-release judicial review of a 

public records response would effectively repeal § 19.356(1). 

As discussed previously, the legislature enacted § 19.356 to 

limit the rights to pre-release notice and judicial review that 

this court created in Woznicki and Milwaukee Teachers.11 See

Moustakis, 368 Wis. 2d 677, ¶27. Although those rights may have 

been enforceable via a declaratory judgment action while they 

existed, the legislature abrogated them when it adopted 

§ 19.356. WMC cannot use the Act to circumvent either § 19.356 

or the other statutorily authorized routes for obtaining that 

review. 

¶20 Additionally, WMC's interpretation gives no effect to

other statutes, such as those cited above, that allow for 

injunctive relief against records releases. See State ex rel. 

Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶46, 271 

Wis. 2d 633, 681 N.W.2d 110 ("Statutory language is read where 

possible to give reasonable effect to every word, in order to 

avoid surplusage."). That is, if the Declaratory Judgments Act 

 

11 The Joint Legislative Council's prefatory note to 2003 

Wis. Act 47 confirms this conclusion, explaining that § 19.356 

"applies the rights afforded by Woznicki and Milwaukee Teachers'

only to a defined set of records pertaining to employees 

residing in Wisconsin." See also Moustakis, 368 Wis. 2d 677, 

¶27 n.17 ("Legislative history may be consulted to confirm a 

plain meaning interpretation."). 
No. 2020AP2081-AC & 2020AP2103-AC 

15

generally provides for pre-release judicial review, then there 

would be no reason for the legislature to have also specifically 

authorized such review in narrower contexts elsewhere in the 

statutes. Indeed, WMC's position would undo the legislature's 

choice to preclude pre-release judicial review in most 

circumstances. 

¶21 Accordingly, we hold that the Declaratory Judgments 

Act does not "otherwise provide[]" for pre-release judicial 

review of records responses. See § 19.356(1). 

IV

¶22 In conclusion, we affirm the court of appeals' 

decision and hold that WMC's complaint fails to state a claim 

upon which relief may be granted because its claim is barred by 

§ 19.356(1). 

By the Court.—The decision of the court of appeals is 

affirmed.
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

1

¶23 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). I 

dissent because the majority errs in affirming the court of 

appeals' decision dismissing this case. The court of appeals 

also erred in accepting the interlocutory appeal. In so doing, 

the court of appeals perpetuated the premature dismissal of this 

case. The court of appeals, and now this court, fails to 

consider the fact that a motion to amend the pleadings was 

pending before the circuit court. The majority errs by 

affirming the dismissal of this case and does so with little 

analysis of the serious implications of its decision. The State 

is prepared to release individuals' personal medical information 

to the public. The law allows for such a release to be 

challenged. The majority instead 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.

¶24 The majority, like the court of appeals, fails to 

properly consider the procedural posture of this case. 

Unfortunately, this error has great significance to the 

individuals whose personal and confidential medical information 

will be released. As a result of the majority's error, the 

names of businesses that have had employees who tested positive 

for COVID-19, and the number of employees who tested positive 

will be published. Significantly, private patient files that 

are confidential by law, may become public records subject to 

the public records law, and if the government has gathered 
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

2

personal medical information, the confidential status of that 

information is gone and cannot be challenged. The damage that 

will be done by public disclosure of private information is 

irreparable. 

¶25 This case was merely at the pleadings stage in the 

circuit court, with a motion to amend the pleadings pending, 

when the court of appeals took the unusual step of granting 

interlocutory appeal over these non-final pleadings and 

determining essentially that these private confidential patient 

files are indeed public records and their release cannot be 

challenged by anyone. The court of appeals' decision should be 

reversed and the cause remanded to the circuit court so that the 

circuit court can consider whether to allow the pleadings to be 

amended. To dismiss this case at this juncture is error and 

interlocutory intervention was error.

¶26 The majority's exceedingly short analysis in this case 

makes little to no reference to the procedural posture of the 

case and the pending motion to amend the pleadings below. The 

majority claims that it resolves the case on grounds other than 

standing and therefore assumes without deciding that 

petitioners, Wisconsin Manufacturers and Commerce, Muskego Area 

Chamber of Commerce, and New Berlin Chamber of Commerce and 

Visitors Bureau (collectively, "the Associations") have 

standing. See majority op., ¶1 n.2. The majority focuses on 

one public records statute in its analysis. The majority claims 

that the general prohibition against pre-release judicial review 

found in Wis. Stat. § 19.356 does not apply to declaratory 
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judgment claims because the Associations have no statutory 

remedy for violations of the public records law. The majority 

concludes that § 19.356's language is clear that no one has a 

right to block the release of a public record unless otherwise 

specified. The majority makes no mention of the individuals' 

confidential medical information that is at stake. The majority 

does not consider the amended pleadings below wherein 

individuals make this claim. The majority gives no 

consideration to the fact that a class action of those 

individuals could make a claim if allowed by amended pleading. 

¶27 To be clear, the implications of the majority's 

conclusions are sweeping. Shortly after the outbreak of 

COVID-19, on July 1, 2020, media outlets reported that Governor 

Evers and his then-Secretary of Health Palm planned to publish 

names of all Wisconsin businesses that had recorded at least two 

COVID-19 cases. M.D. Kittle, "Breaking: Evers' DHS Outing 

Businesses with COVID Cases," Empower Wisconsin (July 1, 2020), 

https://empowerwisconsin.org/breaking-evers-dhs-outingbusinesses-with-covid-cases/. A number of businesses and the 

Associations sent a letter to the State explaining that 

releasing such information, even in response to a public records 

request, would violate statutory and constitutional provisions. 

The State then determined it would not publish the information. 

¶28 Later that month the State changed its position and 

decided to release the names of over 1,000 employers across 

Wisconsin who had at least two employees test positive for 

COVID-19 or close contacts investigated by contact tracers. On 
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the heels of that announcement, the Associations filed an 

initial complaint with the circuit court and moved for a 

temporary restraining order and temporary injunction. The 

circuit court issued the temporary restraining order and set a 

motion hearing. At the hearing, the Journal Sentinel was 

granted status to intervene. Both the State and the Journal 

Sentinel moved to dismiss the complaint. On October 23, 2020, 

the Associations filed a first amended complaint and a combined 

brief opposing dismissal and supporting temporary injunction.

¶29 In the first amended complaint the Associations 

alleged that the State planned the release of this sensitive 

information and the business names and the number of known or 

suspected COVID-19 cases. The allegations were that there were 

more than 1,000 employers that met the State's criteria. The 

Associations alleged that the information the State planned to 

release was derived from diagnostic test results and the records 

of contract tracers investigating COVID-19. The Associations 

alleged that the information about whether an employee of a 

facility had tested positive for COVID-19 could come only from 

that individuals' medical records and that the State sought 

release of medical diagnostic tests conducted on numerous 

individuals. In addition, the Associations alleged that 

releasing a patient's employer's name would permit 

identification of the patient because the employer's name is 

patient identifiable data. The Associations alleged that given 

the relatively small number of employees in any facility, it 

would not be difficult for coworkers or community members to 
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discern the identity of the employee or employees who tested 

positive for COVID-19. The allegations were that the State

originally obtained the medical records for the purpose of 

communicable disease surveillance and that responding to a 

public records request is not communicable disease surveillance. 

The Associations alleged that the release of confidential 

medical information of these employees would violate their right 

to privacy and unfairly harm the reputation of the Associations' 

members. The first amended complaint alleged irreparable harm. 

The Associations further alleged that its members are Wisconsin 

taxpayers, and that the plan to collect, review, and release 

this confidential medical information is an unlawful expenditure 

of public funds thus exposing the State to liability to be paid 

out of the public fisc.

¶30 On December 4, 2020, the circuit court entered orders 

denying the pending motions to dismiss and granting the 

Associations' motion for a temporary injunction. Thus, the 

Associations succeeded at the circuit court level. The case 

proceeded under the course of normal litigation. 

¶31 Importantly, on December 12, 2020, the Associations 

filed the motion for leave to file a second amended complaint 

along with the proposed second amended complaint. The second 

amended complaint added claims from two anonymous individuals 

who tested positive for COVID-19 at the relevant time and who 

are and have been employees of a public-facing Wisconsin 

business with over 25 employees, which business had at least two 

individuals who tested positive for COVID-19. The individual 
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plaintiffs sought an injunction under Wis. Stat. § 146.84(1)(c). 

Section 146.84(1)(c) allows "individual[s]" to "enjoin any 

violation of s. 146.82 or 146.83 [regulating confidentiality of 

healthcare records] or to compel compliance with s. 146.82 or 

146.83 . . . ." As the majority correctly identifies, this 

language allows individuals to obtain injunctive relief prior to 

disclosure of health care information, notwithstanding any 

limitations in Wis. Stat. § 19.356 on pre-disclosure relief. 

See majority op., ¶¶16-17. If the individuals' claims were 

permitted to proceed at the circuit court, they could have 

represented all individuals affected statewide in a class 

action. See Wis. Stat. § 803.08(1) (describing the 

prerequisites for obtaining class certification); Mussallem v. 

Diners' Club, Inc., 69 Wis. 2d 437, 445, 230 N.W.2d 717 (1975) 

("[I]t [is] in the public interest as declared by the 

legislature to permit class actions in those cases which meet 

the [statutory] criteria . . . ."). 

¶32 There is no indication that the Associations' motion 

to amend was improper, untimely, or in any way outside the 

normal course of behavior in civil cases. It was filed at the 

very beginning of litigation, before the parties had engaged in 

any discovery and the defendants had developed any reliance on 

the nature of the complaint. The most significant amendment was 

adding new parties; the facts and the legal claim did not 

change. At the time the motion to amend was filed, the 

Associations were facing no court order mandating dismissal, nor 

a pending motion to dismiss. There are no signs of gamesmanship 
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on the part of the Associations and no indication of unfairness 

to the defendants. 

¶33 Under Wis. Stat. § 802.09, it is the established 

policy of this state that leave to amend pleadings must be 

"freely given at any stage of the action when justice so 

requires." § 802.09(1). Like most American courts, we rejected 

long ago highly formalistic and technical pleading procedures. 

We abandoned a prior system that punished unknowing plaintiffs 

for minor procedural errors with outright dismissal on the 

merits. Korkow v. General Cas. Co. of Wis., 117 Wis. 2d 187, 

193, 344 N.W.2d 108 (1984). Now, pleadings are intended to 

provide the defendant "reasonable notice . . . [of] the nature 

of the claim," not as a means to set legal minefields and 

dismiss valid lawsuits. CED Properties, LLC v. City of Oshkosh, 

2014 WI 10, ¶21, 352 Wis. 2d 613, 843 N.W.2d 382. The first and 

foremost goal of the pleading stage is to encourage resolution 

of the case on the merits. Foman v. Davis, 371 U.S. 178, 181-82 

(1962) ("It is too late in the day and entirely contrary to the 

spirit of the Federal Rules of Civil Procedure [on which 

Wisconsin rules of civil procedure are modeled] for decisions on 

the merits to be avoided on the basis of such mere 

technicalities."). There is a strong preference for permitting 

amendments to a complaint, and § 802.09 is "liberally construed 

to permit the amendment of the pleadings so as to present the 

entire controversy." Tri-State Home Improvement Co., Inc. v. 

Mansavage, 77 Wis. 2d 648, 658, 253 N.W.2d 474 (1977). 
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

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¶34 After the Associations had successfully defeated the 

motions to dismiss and had filed a valid motion to amend, the 

Journal Sentinel filed a petition for leave to appeal the 

circuit court's order denying its motion to dismiss. The State 

also filed a petition for leave to appeal the circuit court's 

orders denying its motion to dismiss and granting the temporary 

injunction. The Associations opposed the petitions for leave 

noting that given the pending motion to amend the complaint, an 

interlocutory appeal would not serve to dispose of the case. 

Given our liberal pleading standards, the Associations knew they 

had a right to have their claims heard on the merits; they 

complied with standard civil practice, and the defendants were 

not in any way prejudiced or deprived of adequate notice. TriState Home Improvement, 77 Wis. 2d at 658; Hess v. Fernandez, 

2005 WI 19, ¶23, 278 Wis. 2d 283, 692 N.W.2d 655 (explaining 

that a defendant can overcome the preference for amendments by 

demonstrating "undue delay, [dilatory] motive, and prejudice" 

(citing Foman, 371 U.S. at 182)). 

¶35 While decisions to grant or deny temporary injunctions 

are frequently reviewed on interlocutory appeal, e.g., Werner v. 

A.L. Grootemaat & Sons, Inc., 80 Wis. 2d 513, 259 N.W.2d 310

(1977), interlocutory appeal of denials of motions to dismiss, 

routine motions that proliferate common civil practice, are 

highly restricted. The court has recognized that granting 

interlocutory appeal for non-orders are permitted only in 

"special circumstances," given that they carry "considerable 

disadvantages." Heaton v. Larsen, 97 Wis. 2d 379, 395-96, 294 
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

9

N.W.2d 15 (1980); State v. Jendusa, 2021 WI 24, ¶20, 396 

Wis. 2d 34, 955 N.W.2d 777. Interlocutory appeals are "inimical 

to the effective and fair administration [of the judicial 

system]" and encourage "piecemeal litigation." State v. Jenich, 

94 Wis. 2d 74, 80, 288 N.W.2d 114 (1980); see also Firestone 

Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981) 

(explaining that requiring a final judgment prior to appeal 

"emphasizes the deference that appellate courts owe to the trial 

judge as the individual initially called upon to decide the many 

questions of law and fact that occur in the course of a trial," 

prevents "piecemeal appeals [which] would undermine the 

independence of the district judge," and avoids "the obstruction 

to just claims that would come from permitting the harassment 

and cost of a succession of separate appeals from the various 

rulings to which a litigation may give rise, from its initiation 

to entry of judgment"). 

¶36 Despite the Associations having a well-established 

right to have their motion to amend reviewed, and favorably 

considered, the court of appeals granted the petitions for leave 

to appeal, consolidated the appeals, and set the case for 

accelerated briefing. Thus, the court of appeals chose to opine 

on the sufficiency of a complaint that, in all likelihood, had 

no remaining importance in the dispute. Once a complaint is 

amended, the allegations and claims in the original complaint 

have no legal effect. See Holman v. Family Health Plan, 227 

Wis. 2d 478, 487, 596 N.W.2d 358 (1999) ("An amended complaint 

supplants the original complaint when the amended complaint 
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

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makes no reference to the original complaint and incorporates by 

reference no part of the original complaint."); see also

Crawford v. Tilley, 15 F.4th 752, 759 (6th Cir. 2021) ("The 

general rule is that filing an amended complaint moots pending 

motions to dismiss." (collecting cases)). And there was no 

convincing reason to deny the motion to amend. 

¶37 On April 5, 2021, the court of appeals issued its 

decision reversing the circuit court's orders denying the 

motions to dismiss and ordering the circuit court on remand to 

dismiss the complaint with prejudice and vacate the temporary 

injunction. The court of appeals recognized that the 

Associations had moved to amend their complaint before the 

defendants filed an interlocutory appeal, but it chose not to 

address the merits of that motion. The court of appeals 

speculated, without citation or legal analysis, that the circuit 

court could "consider . . . the propriety of such a second 

amended complaint" after the case had been dismissed. Wis. 

Mfrs. & Com. v. Evers, 2021 WI App 35, ¶46 n.11, 398 

Wis. 2d 164, 960 N.W.2d 442. 

¶38 The court of appeals' mandate left the future of the 

case in serious uncertainty. Nonetheless, what is clear is the 

court of appeals dissolved the circuit court's injunctive order 

that prevented disclosure of sensitive health care information. 

Even if the motion to amend before the circuit court is valid, 

and even if the second amended complaint would justify immediate 

injunctive relief, the orders directed at the State would be 

vacated by the court of appeals' decision. In a matter of 
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

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hours, the medical information of thousands of Wisconsites could 

be released. If a circuit court showed as much disregard for a 

motion to amend and the liberal pleading system as the court of 

appeals did in this case, there would be a very strong case for 

reversible error. See, e.g., Tri-State Home Improvement, 77 

Wis. 2d at 658-61 (concluding that a circuit court erroneously 

exercised its discretion when it denied a motion to amend the 

pleadings filed after trial in the case began, because newly 

added claims would not have surprised the defendants, the new 

claims could have been successful, and the amendments would not 

materially prejudice the defendants). When the court of appeals 

speaks in the future of Wisconsin's favorable posture toward 

motions to amend, it will certainly have less ground to stand 

on. 

¶39 Interlocutory appeal is an extraordinary action and 

ought not be granted lightly by the court of appeals. The court 

of appeals erred in failing to consider the status of the case 

below, with a pending motion to file a second amended complaint 

to include two individual plaintiffs. The court of appeals 

never should have granted interlocutory appeal. To conclude 

dismissal was appropriate, it undertook extraordinary measures 

to close judicial relief to individuals who have the right to 

contest the release of this medical information. It shortcircuited the standard judicial process and deprived the 

Associations the ability to present their full case on the 

merits. 
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

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¶40 While the majority, like the court of appeals, gives a 

minor gesture to the pending motion to amend, it leaves the 

remaining litigation in substantial uncertainty. Majority op., 

¶5 n.7. Should the motion to amend be considered as it would 

have been if the court of appeals had not seized jurisdiction? 

The Associations did nothing wrong here; they filed a motion to 

amend prior to any adverse court order. Or, given that this 

court is mandating dismissal with prejudice of the case, must 

the Associations meet the higher burden of amending the 

complaint after entry of a dismissal order? Tietsworth v. 

Harley-Davidson, Inc., 2007 WI 97, ¶26, 303 Wis. 2d 94, 735 

N.W.2d 418 ("The presumption in favor of amendment . . . applies 

logically only before judgment has been entered in the case."

(citing Mach v. Allison, 2003 WI App 11, ¶27, 259 Wis. 2d 686, 

656 N.W.2d 766)). Do the Associations, the named plaintiffs in 

this case, have standing to request the addition of third 

parties when the Associations themselves have no claim? 

¶41 These problems would not have come about if the court 

of appeals had reserved judgment and allowed the circuit court 

to do its job. Instead, it impatiently removed this case from 

the circuit court before a pending and facially valid motion to 

amend was resolved. The court of appeals' actions in this case 

are extraordinary and clearly erroneous. The individuals 

included in the second amended complaint can simply file another 

lawsuit after dismissal of this case. Thus, despite the 

hundreds of pages of briefing, hours of oral argument time, and 

months of attorney fees for the litigants and taxpayers, this 
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

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appellate process as a whole may not advance lower court 

proceedings in material way. Likely, the only significant 

result of this appeal is that, during the forthcoming period of 

uncertainty, between issuance of this decision and the 

resolution of the motion to amend (or the filing of a new 

lawsuit), the State has the green light to release massive 

amounts of healthcare information. For that period of time, 

irreparable and illegal harm can be done. 

¶42 The decisions of the court of appeals and today, the 

majority, focus solely on whether the Associations are the 

proper parties to challenge the State's release of information 

on positive COVID-19 tests. This entire appeal could have been 

avoided if the pending motion to amend were granted. While some 

may dislike the Associations or their claims, every jurist 

should be concerned by appellate courts engaging in divide-andconquer procedural tactics, carving up complaints and dismissing 

claims before a full merits review. Here, the Associations' 

claims are dismissed on largely procedural grounds, but no 

guidance is given to the litigants or the public as to whether 

the State's proposed disclosures are actually legal. The 

decisions by the court of appeals and majority in this case 

endorse substantial procedural barriers for the named plaintiffs 

and a reduced body of caselaw to guide decision making in 

Wisconsin. 

¶43 The majority refuses to address the pending motion to 

amend, but the analysis the majority does provide is equally 

concerning. In Wisconsin, standing is a low bar. McConkey v. 
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

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Van Hollen, 2010 WI 57, ¶15, 326 Wis. 2d 1, 783 N.W.2d 855. 

Standing is to be construed broadly in favor of those seeking 

access to the courts. Contrary to this court's precedent, the 

court of appeals concluded that a legally protectable interest 

for purposes of a Declaratory Judgments Act lawsuit and 

establishing standing are different things. Wis. Mfrs. & Com., 

398 Wis. 2d 164, ¶¶27-29. The court of appeals erred. There 

need not be a statutory or constitutional provision at issue in 

a Declaratory Judgments Act case. Of course, declaratory 

judgments can be brought under common law rights, such as those 

established in contract law. See, e.g., F. Rosenberg Elevator 

Co. v. Goll, 18 Wis. 2d 355, 118 N.W.2d 858 (1963). In fact, if 

establishing a legally protectable interest for purposes of the 

declaratory judgment is not the same as standing, then the 

Declaratory Judgments Act four-factor test would not require any 

showing of standing. See Foley-Ciccantelli v. Bishop's Grove 

Condominium Ass'n, Inc., 2011 WI 36, ¶47, 333 Wis. 2d 402, 797 

N.W.2d 789 ("[T]he concepts of standing and justiciability (a 

legally protectable interest) have been viewed as overlapping 

concepts in declaratory judgment cases."). 

¶44 Here, the Associations have adequately alleged 

standing. Moreover, the second amended complaint, if allowed, 

states more, not less, in terms of standing. The second amended 

complaint alleges a violation of a medical records statute. The 

second amended complaint alleges that the release of 

confidential medical information would violate Wis. Stat. 

§ 146.82 and its confidentiality requirement. The allegations 
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

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of the second amended complaint are that the planned release of 

these confidential documents does not fall under any exception 

in § 146.82. More needs to be known and the merits must be 

reviewed before this lawsuit can be dismissed. The public 

records statute alone does not dictate the answer. The majority 

does nothing to reconcile the conflict the public records 

statute has with the medical records provisions.

¶45 When the court of appeals concluded that the 

Associations lacked taxpayer standing, its reasoning erred with 

respect to the implausibility standard. The majority must 

recognize that at this stage of the proceedings, alleged facts 

must be accepted as true, and the pleadings must be construed 

liberally such that any reasonable inferences arising from those 

facts are construed in favor of the non-moving party. Data Key 

Partners v. Permira Advisers LLC, 2014 WI 86, ¶21 n.9, 356 

Wis. 2d 665, 849 N.W.2d 693 ("Factual assertions are evidenced 

by statements that describe: who, what, where, when, why, and 

how." (quotations omitted)).

¶46 In addition, for this procedural error regarding the 

proper standard to apply, this court errs: without analyzing or 

considering any developed facts or legal analysis, this court 

affirms the court of appeals' decision which held, for the first 

time in Wisconsin, as a matter of law, information within 

patient health care records is somehow not confidential so long 

as the government obtains the information. The court of appeals 

reasoned that Wisconsin's healthcare privacy statutes do not 

protect "information that is merely derived from a record." 
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

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Wis. Mfrs. & Com., 398 Wis. 2d 164, ¶24 n.9. Absent 

extraordinary circumstances where the information appears in a 

"functional[ly] equivalent" manner as the original record, under 

the court of appeals' reasoning, the State can publicly disclose 

private healthcare records if the information therein is simply

restated in a government record. Id. Notably, the court of 

appeals concluded the private COVID-19 testing information at 

issue in this case was not subject to confidentiality 

protections. Id. Under the plain text of Wis. Stat. § 146.82, 

"[a]ll patient health care records shall remain confidential." 

There is no exception for healthcare records that have been 

restated in government records. Absent informed consent of the 

patient or person authorized by the patient, healthcare records 

are indeed confidential. § 146.82(1); Johnson v. Rogers Mem'l 

Hosp., Inc., 2005 WI 114, ¶33, 283 Wis. 2d 384, 700 N.W.2d 27. 

The majority makes no effort to explain how this provision can 

be reconciled with the public records law or the court of 

appeals' decision.

¶47 Uncorrected, as the majority has now done, the court 

of appeals' interpretation of Wis. Stat. § 146.82 can have 

devastating statewide consequences for medical privacy. 

Consider whether this request were for patients with certain 

other diseases or private conditions. It could be someone who 

suffers a miscarriage, or has cancer. It could be a person who 

has a sexually transmitted disease, a sex crime victim, or an 

individual who suffers from mental illness. Under the 

majority's interpretation, all may have intimate healthcare 
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

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information disclosed to the public. All that would be required 

is that the government somehow garners the information, and 

there can be no objection to the release of that information. 

The second amended complaint specifically lists individuals who 

would be harmed by the release of this information, but the 

majority precludes them from potentially seeking any relief. If 

the medical information is released when the Associations are 

dismissed and the injunction in this case is lifted, the 

individuals will have no means to obtain meaningful relief. 

Once their information is made public, the individuals cannot 

later make the information private. 

¶48 In short, the majority affirms the court of appeals' 

decision, which is riddled with error. The majority opinion 

today goes further to profoundly impact the confidentiality of 

individual patient records. Pleadings are to be liberally 

construed and here, the majority does not even address the fact 

that any action by the court of appeals was premature because 

the pleadings below were not fully complete. At this stage in 

the proceedings, it is error to dismiss this case and close the 

courthouse doors to those seeking to protect private 

confidential information. To determine that the only actual 

records protected are the medical records themselves, and not 

the information contained therein, has the potential for 

sweeping negative consequences. Before today's decision by this 

court, the information contained in medical records was 

obviously confidential, as well as the record itself. An 

individual could object to release of confidential information. 
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

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¶49 However, by affirming the court of appeals, the 

majority has determined that because the government has gathered 

information from individuals' confidential records, that 

information loses confidentiality. The individual who is the 

subject of that information has no right to review or object to 

its release. This court has permitted the weaponization of 

private health information, so long as the government has 

gathered that information. It has also incentivized 

gamesmanship by dismissing a lawsuit on procedural grounds 

before the plaintiffs have had a full and complete opportunity 

to amend their complaint and provide arguments on the merits. 

This is a dangerous course for the citizens of the state of 

Wisconsin. It is also contrary to the law. At a minimum, this 

lawsuit should not be dismissed. Interlocutory relief was 

incorrectly granted by the court of appeals, and the circuit 

court below should be permitted to proceed with the case and 

determine whether the complaint should be amended.

¶50 For the foregoing reasons, I respectfully dissent. 

¶51 I am authorized to state that Justices PATIENCE DRAKE 

ROGGENSACK and REBECCA GRASSL BRADLEY join this dissent.
Nos. 2020AP2081-AC & 2020AP2103-AC.akz

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