¶1 Three trade associations whose members are businesses in Wisconsin—Wisconsin Manufacturers and Commerce (WMC), Muskego Area Chamber of Commerce, and New Berlin Chamber of Commerce and Visitors Bureau (collectively, the Associations) —commenced this declaratory judgment action seeking to enjoin the planned release of certain records by the Wisconsin Department of Health Services in response to public records requests, including some by the Milwaukee Journal Sentinel.
¶2 This court granted separate petitions that were filed by the State and the Journal Sentinel for leave to appeal the circuit court's non-final order denying their motions to dismiss and consolidated the two appeals.
¶3 The following background summary consists entirely of allegations and legal conclusions made by the Associations in the complaint. On September 30, 2020, WMC was informed by Secretary Brennan that on October 2, 2020, in response to public records requests, the State planned to release a list of "the names 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 numbers of such employees at each business.
¶4 The Associations allege as follows: some information in the list that the State plans to release comes from "medical diagnostic tests" in individual employees' medical records, which the Associations assert "is protected, confidential health care information that cannot be released without the informed consent of each individual" employee patient under WIS. STAT. § 142.82; releasing the list would permit identification of the employee patients; release of the list of the businesses' names would violate their member businesses' employees' right to privacy, harm their member businesses' reputations, and cause their member businesses and WMC pecuniary losses as taxpayers; the Associations are asserting the claims in the complaint "on behalf" of their member businesses.
¶5 The circuit court issued a temporary restraining order enjoining the planned release as to all businesses named on the list regardless of whether a named business is a member of any of the Associations. The Associations moved for a temporary injunction, and the State and the Journal Sentinel each moved to dismiss the complaint. After briefing and oral argument, the court in an oral ruling denied the motions to dismiss and granted the Associations' motion for a temporary injunction, again as to all businesses regardless of whether they are members of the Associations. The court entered orders consistent with its ruling on December 4, 2020.
¶6 On December 23, 2020, and December 28, 2020, the Journal Sentinel and the State respectively filed petitions for leave to appeal the circuit court's order denying their motions to dismiss. By order dated January 20, 2021, this court granted the petitions, consolidated the appeals, and set an expedited schedule for briefing and oral argument. The parties completed briefing on March 12, 2021 and this court convened an oral argument on March 24, 2021.
¶7 The State and the Journal Sentinel appeal the denial of their motions to dismiss the Associations' complaint. The complaint seeks to enjoin the planned release, in response to public records requests, of a list of the names of businesses in Wisconsin
¶8 As we explain further below, we follow the same analytical approach used by our supreme court in Moustakis v. DOJ, 2016 WI 42, ¶3 n.2, ¶5, 368 Wis.2d 677, 880 N.W.2d 142, and Voters with Facts v. City of Eau Claire, 2018 WI 63, ¶4, 382 Wis.2d 1, 913 N.W.2d 131. Following that approach here, we interpret the applicable statutes and first conclude that the Associations' complaint fails to state a claim upon which relief can be granted because the statutes on which the Associations rely to support their declaratory judgment action "`[do] not give legal recognition to the interest'" they assert. Moustakis, 368 Wis.2d 677, ¶3 n.2, 880 N.W.2d 142 (quoting Wisconsin's Envt'l Decade, Inc. v. Pub. Serv. Comm'n of Wisconsin, 69 Wis.2d 1, 11, 230 N.W.2d 243 (1975), and explaining that, "the question whether [an] interest is legally protected for standing purposes is the same as the question whether plaintiff (assuming his or her factual allegations are true) has a claim on the merits." (internal quotation marks and quoted source omitted)); see also Voters with Facts, 382 Wis.2d 1, ¶¶4, 26, 913 N.W.2d 131 (not addressing standing and instead analyzing complaint to determine whether it states a claim upon which relief may be granted). Second, we conclude that the Associations fail to show that their member businesses, on behalf of whom the Associations assert their claims, have a legally protectable interest as required to support this declaratory judgment action because it is implausible that, based on the complaint's allegations, the planned release will cause harm to a purported legally protected interest. Third, and relatedly, we conclude that the Associations point to no applicable statutory exception to the prohibition in WIS. STAT. § 19.356(1) against their pre-release challenge to the disclosure of these records in response to public records requests. For each of these reasons, the complaint fails to state a claim upon which relief can be granted and must, therefore, be dismissed.
¶9 We first summarize the standard of review and then proceed with our analysis.
I. Standard of Review
¶10 "Upon a motion to dismiss, we accept as true all facts well-pleaded in the complaint and the reasonable inferences therefrom." Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356 Wis.2d 665, 849 N.W.2d 693 (citing Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, ¶11, 283 Wis.2d 555, 699 N.W.2d 205). We do not add facts when analyzing the sufficiency of the complaint, nor do we accept as true any legal conclusions it states. Id. The complaint's sufficiency depends on the substantive law that underlies the claim, and the alleged facts related to that substantive law must "plausibly suggest [that the plaintiff is] entitled to relief." Id., ¶31. Whether a complaint adequately pleads a cause of action presents us with a question of law that we resolve independently of the determination by the circuit court. Hermann v. Town of Delavan, 215 Wis.2d 370, 378, 572 N.W.2d 855 (1998).
II. Declaratory Judgments Act
¶12 The Associations bring their claims pursuant to the Declaratory Judgments Act, WIS. STAT. § 806.04. Declaratory judgments are available to "[a]ny person... whose rights, status or other legal relations are affected by a statute." Sec. 806.04(2). Under a plain language interpretation, the statute requires that the person must have a "right" or "legal relation" that is affected by "a statute." See Olson v. Town of Cottage Grove, 2008 WI 51, ¶¶28, 42, 309 Wis.2d 365, 749 N.W.2d 211 (declaratory relief appropriate when it will serve useful purpose in clarifying rights). We first explain why we conclude that the Associations fail to identify a legally protectable interest to support this declaratory judgment action, and we then explain why we conclude that, even under the statutes that they cite, their allegations of a statutory violation that would purportedly result in harm to their member businesses are not plausible.
A. Legally Protectable Interest for Declaratory Relief
¶13 It is well established that a declaratory judgment action "is fitting when a controversy is justiciable." Olson, 309 Wis.2d 365, ¶29, 749 N.W.2d 211 (citing Loy v. Bunderson, 107 Wis.2d 400, 410, 320 N.W.2d 175 (1982)). A controversy is justiciable when: (1) a "right is asserted
¶14 Thus, the Associations must assert at least one "right" satisfying the first factor and at least one "legally protectable interest" satisfying the third factor in order to maintain this declaratory judgment action.
¶15 We turn to the statute that the Associations have argued, both in the circuit court and in their appellate briefing, provides the requisite "right" and "legally protectable interest"—the patient health care records confidentiality law, WIS. STAT. §§ 146.82 and 146.84.
¶16 WISCONSIN STAT. § 146.82(1) provides that "[a]ll patient health care records shall remain confidential [and] ... may be released only to the persons designated in this section or to other persons with the informed consent of a patient or of a person authorized by the patient...." Subsections (2) and (3) describe those situations in which patient health care records may be released without informed consent, and the State and the Journal Sentinel do not argue that there has been any pertinent informed consent here. Under WIS. STAT. § 146.84(1)(c), an "individual may bring an action to enjoin any violation of s. 146.82 or 146.83 or to compel compliance with s. 146.82 or 146.83 and may, in the same action, seek damages as provided in this subsection."
¶17 The Associations argue that their member businesses have an interest protected by the patient health care records confidentiality law because WIS. STAT.
¶18 WISCONSIN STAT. § 146.84 is titled, "Violations related to patient health care records." As noted, § 146.84(1)(c) states, "An individual may bring an action to enjoin any violation of s. 146.82 or 146.83 or to compel compliance with s. 146.82 or 146.83 and may, in the same action, seek damages as provided in this subsection." Pertinent to this appeal, WIS. STAT. §§ 146.82 and 146.83 protect the confidentiality of patient health care records and restrict their release. Subsections 146.84(1)(b) and (bm) specify the damages available to "any person" injured by a violation of §§ 146.82 or 146.83.
¶19 Notably, the above-quoted language in WIS. STAT. § 146.84(1)(c) specifies that only "an individual" may sue to enjoin a violation of WIS. STAT. §§ 146.82 or 146.83. The Associations concede that the Associations' member businesses have neither a legally protectable interest nor a method to obtain relief under § 146.84(1)(c) because none of them is "an individual."
¶20 Instead, the Associations argue that the Associations themselves may bring this action on behalf of their member businesses because the member businesses have their own shared legally protectable interest. The Associations contend that the legally protectable interest shared by their member businesses is that the member businesses are "persons" that can sue for damages under WIS. STAT. § 146.84(1)(b) and (bm). But the Associations do not argue that their member businesses have the right to sue for damages under those two statutory subparts because the member businesses have their own rights to confidentiality of health care records under WIS. STAT. §§ 146.82 or 146.83. Rather, the Associations argue that their member businesses have this right based on purported violations of the rights of the employees of the member businesses to the
¶21 With that as background regarding the Associations' argument, we are not persuaded that the alleged harm to the reputations of the Associations' member businesses could constitute an injury contemplated by these statutes, because the statutes are focused on individual patients and their health care records (defined in WIS. STAT. § 146.81(3) as "a person who receives health care services from a health care provider"). There is an obvious disconnect between any purported rights of the Associations' member businesses and the protected rights of individual employees of member businesses. We observe that the Associations' argument on this point is not tenable given the fact that the rights of the Associations' member businesses, on the one hand, and the rights of the employee patients as specific individuals, on the other hand, are several distinct levels removed from each other.
¶22 Explaining further, WIS. STAT. §§ 146.82 and 146.83 protect the rights of health care patients, as individual patients. The Associations fail to explain how the Associations, as particular entities, could pursue a declaratory judgment on behalf of their member businesses in these circumstances without effectively nullifying all of the limiting language referenced in these statutes. See, e.g., § 146.82(1) (declaring that all "patient" health care records are confidential); WIS. STAT. § 146.81(3) (defining "patient" to mean the "person who receives health care"); §§ 146.82(5) and 146.83 (restricting, with limited exceptions, redisclosure of and access to patient health care records based on the consent of or authorization by the "patient."). As we have stated in an analogous situation with respect to WIS. STAT. § 51.30, which involves treatment records, the rights covered by the substantive provisions in §§ 146.82 and 146.83 are those of patients as individuals and concern "the release of [their] confidential information." See Milwaukee Deputy Sheriff's Ass'n v. City of Wauwatosa, 2010 WI App 95, 327 Wis.2d 206, ¶32, 787 N.W.2d 438. Indeed, the Associations' approach would effectively nullify the "legally protectable right" requirement itself. This would be an unreasonable and absurd result, allowing parties to delineate, with no discernable beginning or end point, "legally protectable rights" that diverge from the specific rights that are provided by our legislature and applicable case law. See Kalal, 271 Wis.2d 633, ¶46, 681 N.W.2d 110 (we interpret statutory language in the context in which it is used and "reasonably, to avoid absurd or unreasonable results").
¶23 There is yet another defect in the Associations' reliance on the patient health care records confidentiality law: only "an individual" can sue for injunctive relief. The Associations' argument that their member businesses have a legally protectable interest based on the provisions for damages to injured persons in WIS. STAT. § 146.82(1)(b) and (bm) disregards the provision in § 146.82(1)(c) that only "an individual" can seek the pre-release injunctive relief that the Associations seek here. This excludes the Associations' member businesses.
¶24 The provisions in WIS. STAT. §§ 146.82-146.84 set forth in detail the legal actions that they authorize. Not only do the provisions not create a right to enjoin the planned release of the records for entities such as the Associations' member businesses, they expressly exclude them from that right by categorically identifying who may be a potential plaintiff. The Associations do not explain how the law protects an interest that the law does not permit them to sue to protect. Rather, they seek to rewrite the statute to expand
¶25 Perhaps recognizing this impediment, the Associations argue in their appellate brief that, even if their member businesses do not have an interest protected by the patient health care records confidentiality law or any other source, they have an interest protected by the Declaratory Judgments Act itself. This argument is counter to the Associations' own concession, elsewhere in their appellate brief and their position at oral argument, that a plaintiff may only "seek a declaratory judgment based on an alleged violation of a statutory or constitutional provision." When the Associations have made it, this concession has been well advised and consistent with authorities we have cited above that require that a party seeking declaratory relief have a legally protectable interest. The contrary position would be such an expansive interpretation of WIS. STAT. § 806.04 that it would effectively read out of existence statutes that limit who can seek pre-release relief regarding records, such as WIS. STAT. § 146.84 discussed above and WIS. STAT. § 19.356(1) discussed below. We may not interpret a statute to render other statutory language surplusage or to reach such absurd results. See Kalal, 271 Wis.2d 633, ¶46, 681 N.W.2d 110 ("[s]tatutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage" and to avoid unreasonable or absurd results).
¶26 To repeat, a justiciable controversy requires a legally protectable interest. Olson, 309 Wis.2d 365, ¶29, 749 N.W.2d 211. We reject the Associations' inconsistent attempt to use the Declaratory Judgments Act to create an interest that, as explained above, their member businesses do not possess.
¶27 Finally, we address a position that the Associations indistinctly suggested in their appellate brief but stated clearly at oral argument to this court. The argument emphasized at oral argument started from a premise that the Associations have consistently conceded, namely, that to make a
¶28 The Associations' concession is consistent with case law. See Krier v. Vilione, 2009 WI 45, ¶20, 317 Wis.2d 288, 766 N.W.2d 517 (in order to have standing to assert a claim, "plaintiffs must show that they suffered or were threatened with an injury to an interest that is legally protectable"); Moustakis, 368 Wis.2d 677, ¶3 n.2, 880 N.W.2d 142 ("`When a plaintiff seeks standing on the basis that an interest is protected by statute, the question whether that interest is legally protected for standing purposes is the same as the question whether plaintiff (assuming his or her factual allegations are true) has a claim on the merits.'") (quoted source omitted). Standing refers to a party's role that enables it to enforce a substantive right, not to a substantive right in itself. While the Associations asserted at oral argument that doctrines of standing do constitute substantive rights, they failed to support that proposition.
¶29 After oral argument, the Associations filed a letter with this court citing to an additional authority regarding standing, namely, the supreme court's newly issued decision in Fabick v. Evers, 2021 WI 28, 396 Wis.2d 231, 956 N.W.2d 856. We now explain why the Associations' reliance on any of the three standing doctrines—taxpayer standing, zone of interest standing, or judicial policy—as entitling them to seek relief under the Declaratory Judgments Act would fail on its merits.
¶30 Taxpayer Standing. The Associations argue that "taxpayer standing alone is sufficient to constitute a legally protectable interest under the [Declaratory Judgments Act]" and, therefore, they are entitled to file a declaratory judgment action simply because they, or at least WMC and some or all of the three Associations' member businesses, are taxpayers.
¶31 Zone of Interest Standing. The Associations argue that they are entitled to
¶32 Judicial Policy. The Associations argue that they have standing because of "judicial economy" or "judicial policy" under McConkey v. Van Hollen, 2010 WI 57, 326 Wis.2d 1, 783 N.W.2d 855. In McConkey, a question arose about whether the plaintiff had standing to bring the lawsuit. However, our supreme court decided based on judicial economy to address the plaintiff's challenge to a constitutional amendment, a challenge that the court characterized as an "important issue of constitutional law," without regard for whether the plaintiff actually established standing. Id., ¶18. The Associations do not persuade us that judicial economy or judicial policy require that courts adjudicate the issue they raise here, which, as explained above, implicates no constitutional or other statutory provision at all. Moreover, if we were to adopt the limitless version of judicial economy standing argued by the Associations, the concept of standing as a meaningful requirement that must be satisfied would be effectively eliminated.
¶33 In sum, we conclude that the Associations' complaint fails to state a justiciable claim upon which declaratory relief can be granted.
B. Plausibility of Allegations for Declaratory Relief
¶34 As stated above, on a motion to dismiss we review the factual allegations in the complaint and inferences from those allegations, so long as the inferences are reasonable. Data Key, 356 Wis.2d 665, ¶19, 849 N.W.2d 693. In addition, our supreme court has told us that the allegations must "plausibly suggest [the plaintiff is] entitled to relief." Id., ¶31. That is, the allegations must cross "the line between possibility and plausibility of entitle[ment] to relief." Id., ¶26 (internal quotation marks and quoted source omitted).
¶35 The Associations request a declaration that the release of the list would be "unlawful." According to the complaint, the release would be unlawful because it would permit the identification of patients (employees). But, as we now explain, the Associations do not allege plausible facts supporting a reasonable inference to that effect; this is a basis to dismiss the complaint quite apart from the analysis above.
¶36 Based on the allegations in ¶¶24 and 25 of the complaint, the State is not planning to include on the list the names of any of the employees of any businesses. Instead, to repeat, the State has informed the Associations that it plans to release only a list of the names of businesses that have known or suspected cases of COVID-19 at those businesses if the businesses have over twenty-five employees and then at least two employees who tested positive for COVID or had close case contacts that were investigated by contact tracers and the numbers of such employees at each business. Any reasonable view of the complaint shows that release of the list could not violate any law cited by the Associations because the list by itself, considered in isolation, does not permit anyone to reasonably identify any of the employees or "patients."
¶37 As a result, the Associations recognize the need to allege different or additional
¶38 Based on the allegations in the complaint, there are only two data points regarding a business that appears on the list: there are over twenty-five employees at the business and there are at least two positive COVID cases or investigations by contact tracers among the employees. Those two data points fail to reveal the actual size of each business or, more importantly, the chance (expressed as a percentage or otherwise) that someone could figure out from the list who was the "patient" who allegedly had his or her rights under Ch. 146 violated. Such a contention is sheer speculation.
¶39 In sum, it is far from "plausible" that the release of the list could "permit the identification of the patient" under the circumstances alleged in the complaint so as to render the release a violation of a legally protectable interest. Accordingly, we conclude that the Associations' allegations do not "plausibly suggest a violation of applicable law." Data Key, 356 Wis.2d 665, ¶21, 849 N.W.2d 693. Because the harms alleged in the complaint—to the Associations' members businesses reputations, to the privacy interests of the member businesses' employees, and to WMC and the member businesses as taxpayers— would all allegedly arise from the unlawful release of the list, in light of our conclusion that the complaint does not plausibly allege that the release of the list would be unlawful, the complaint fails to state a claim upon which relief can be granted.
III. Public Records Law
¶40 The State and the Journal Sentinel assert that, in the alternative, the Associations' complaint fails to state a claim under the public records law. We agree, based in large part on related analysis set forth above.
¶41 The Associations do not dispute that the requested records that they ask the circuit court to enjoin from planned release are maintained by the Department of Health Services. The release of records maintained by a governmental authority is governed by WIS. STAT. §§ 19.32-37. See § 19.32(2) (defining "record" as "any material... which has been created or is being
¶42 Under WIS. STAT. § 19.356(1):
¶43 The legislature has provided that the public policy underlying the public records law is as follows: "[I]t is ... the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them." WIS. STAT. § 19.31. As our supreme court has explained:
Moustakis, 368 Wis.2d 677, ¶¶23, 28, 880 N.W.2d 142; cf., Democratic Party of Wisconsin v. DOJ, 2016 WI 100, ¶11, 372 Wis.2d 460, 888 N.W.2d 584 ("If a statutory or common law exception applies, the analysis ends and the records will not be disclosed.").
¶44 The Associations concede that the exceptions in WIS. STAT. § 19.356(2)(a) do not apply to them or their claim. In addition, for the reasons explained in the preceding section, neither does the prefatory "except as otherwise provided by statute" language apply to their claim: the Association has failed to identify a statute that could apply here. This defeats the only developed arguments presented by the Associations on this issue, aside from what amounts to a policy position that we now address.
¶45 The Associations express disbelief that they could have no remedy under the statutes to prevent the release of records that they allege might contain the names of some number of their member businesses with over twenty-five employees whose employees have tested positive for COVID-19 or been subject to contract tracing related to the illness. Yet, the legislature has also prohibited the possibility of the type of relief from a public records release that is sought here for other categories of persons who submit that they will be harmed by a records release. See Moustakis, 368 Wis.2d 677, ¶5, 880 N.W.2d 142 (ruling that a district attorney as an elected official is not entitled under the public records law to challenge the release of records pertaining to the district attorney prior to the release). And, as the Journal Sentinel points out in its reply, the legislature has explicitly prohibited the possibility of any remedy, regardless of the merits or degrees of injury, for other categories of claims by enacting statutes of limitation, statutes providing for official and recreational immunity, and the like. See, e.g., WIS. STAT. §§ 893.80, 893.82, 895.52. The
¶46 For all of these reasons, we reverse the decision of the circuit court denying the motions of the State and the Journal Sentinel to dismiss the first amended complaint based on a failure to state a claim upon which relief can be granted, and we remand to the circuit court with directions to dismiss the first amended complaint with prejudice and to vacate the temporary injunction order.
By the Court.—Orders reversed and causes remanded with directions.
The Associations designated Waukesha County as the circuit court venue under WIS. STAT. § 801.50(3)(a) (2019-20). The State and the Journal Sentinel each selected this district as the appellate venue under WIS. STAT. § 752.21(2) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
We also acknowledge the informative amicus curiae briefs submitted by nonparties with interests in the issues raised in this appeal.
But, in briefing in this court, the Associations do not rely on or cite to ch. 153 or ch. 943. Thus, as to those two chapters, whatever arguments the Associations may have intended to make have been abandoned. See State v. Ledger, 175 Wis.2d 116, 135, 499 N.W.2d 198 (Ct. App. 1993) ("On appeal, issues raised but not briefed or argued are deemed abandoned.").
As to the HIPAA reference, the Associations make a cursory assertion in their appellate brief that release of the list would violate HIPAA, but they make no developed argument regarding how HIPAA could apply to bar release of the requested list. Nor did they advance any developed HIPAA argument at oral argument to this court. We do not consider their citation to federal law further.
The Associations allege in their complaint and assert in their appellate brief that the State's release of the list is unlawful because the release "is not for the purpose of communicable disease surveillance" and therefore it is prohibited under WIS. STAT. § 146.82(5)(c), "regardless of whether the release of records would permit patient identification." Citing the same statute, the Associations allege in their complaint and assert in their appellate brief that "redisclosure of medical records" that the State has received is not allowed. But they make no discernible argument beyond these conclusory assertions and did not develop them at oral argument. Accordingly, we do not consider these undeveloped arguments further. See Wisconsin Conf. Bd. of Trs. of the United Methodist Church, Inc. v. Culver, 2001 WI 55, ¶38, 243 Wis.2d 394, 627 N.W.2d 469 (we do not address arguments that are conclusory and insufficiently developed).
In addition, as we explain below, the Associations argue that their member businesses can sue for damages under WIS. STAT. § 146.84(1)(b) and (bm). However, we are not persuaded that the Associations can prosecute damages claims for harm to others (here, their member businesses), particularly since the Associations do not allege which of their members may be on the list or how damages would be established in these circumstances.