Dec. 20 --The public has a common law right of access to information in the state bar's admissions database, subject to redactions that will protect individual applicants' privacy and so long as countervailing interests do not outweigh the interest in disclosure, the California Supreme Court concluded Dec. 19 (Sander v. State Bar of Cal., 2013 BL 351811, Cal., No. S194951, 12/19/13).
Chief Justice Tani G. Cantil-Sakauye said on behalf of the unanimous court that the public has a legitimate interest in the California State Bar's administration of the bar exam and admissions process. Neither the promise of confidentiality made to applicants nor their constitutional privacy rights preclude public access to the admissions database if the data can be disclosed without identifying individual applicants, the court decided.
The court said on remand the parties and trial court can determine whether and how the information can be arranged and redacted to shield applicants' privacy, as well as whether the public interest in access to the data is outweighed by any competing interests.
The ruling came in a lawsuit filed by Richard Sander, a UCLA law professor who hypothesizes that racial preferences in law school admissions result in a “mismatch” between minority students' qualifications and the level of instruction at the law schools they attend.
“The public does have a legitimate interest in the activities of the State Bar in administering the bar exam and the admissions process.”
California Supreme Court
To test his theory, Sander wants information in the state bar's admissions database--including applicants' bar exam scores, law school attended, grade point averages, Law School Admission Test scores, and race or ethnicity--to conduct research on racial and ethnic disparities in bar passage rates and law school grades.
Other plaintiffs are the California First Amendment Coalition, a nonprofit public interest organization dedicated to free speech and open government, and Joe Hicks, a former state bar governor and longtime civil rights activist.
The state bar refused to turn over the data. It won in the trial court but that decision was reversed on intermediate appeal and the supreme court agreed as well that there is generally a right of public access to the information. However, the high court's opinion leaves the door open for the bar to argue on remand that it isn't really feasible to disclose the requested data without identifying applicants and that “countervailing interests” weigh against disclosure.
The California Public Records Act does not apply to state bar records, the court found, because the California State Bar is part of the judicial branch, which is expressly excepted from the public records act.
Moreover, the court found that public access to the bar admissions database is neither demanded nor prohibited by any laws or rules that specifically apply to the state bar, including State Bar Rule 4.4, which addresses the confidentiality of applicants' records.
The most reasonable construction of that rule, the court found, is that it preserves the confidentiality of applicant records that connect particular information about an applicant with the applicant's name or other identifying information, but that it does not prevent access to those records in “de-identified” form.
A 2004 ballot measure that amended the state constitution to address “the right of access to information concerning the conduct of the people's business” requires rules to be narrowly construed if they limit the right of access, Cantil-Sakauye observed.
Regarding the common law right of access to public records, the court drew heavily on the analysis in Copley Press, Inc. v. Superior Court, 7 Cal. Rptr.2d 841 (Cal. Ct. App. 1992), which identified two categories of records typically used in courts: those that reflect the court's official work, which are presumptively accessible to the public, and informal, preliminary writings such as notes and rough drafts, which are not subject to the right of public access.
Copley Press also identified a third category of records that are “on the margin” of those two categories, such as a clerk's minute books that are a precursor to the formal minutes of the court. In deciding whether these atypical documents are subject to a right of access, Copley Press focused on the usefulness of the records and the public's interest in seeing them, the court observed. It endorsed that approach as consistent with common law principles regarding the right of public access.
The court made clear, however, that the common law does not recognize a presumptive right of public access to every government agency record that is related to the public's affairs.
Rather, the chief justice explained, to evaluate the common law right of access to information not readily categorized as public records, it must be determined whether the records at issue should be treated as public, taking into account the public's interest in disclosure as well as the competing interests involved.
Applying these principles, the court held that the state bar's admissions database falls into the marginal third category of judicial records identified in Copley Press. That database has not historically been treated as a public record, but there is no reason to believe the records in it are inaccurate or misleading, or that disclosure would interfere with the state bar's own use of the data, Cantil-Sakauye said.
The threshold consideration in determining whether these records are subject to public disclosure, the court said, is the public interest that would be served by this access. The particular motive of the party seeking the information is not the relevant interest, it made clear.
“The public does have a legitimate interest in the activities of the State Bar in administering the bar exam and the admissions process,” the court decided.
In particular, the court said, “it seems beyond dispute that the public has a legitimate interest in whether different groups of applicants, based on race, sex or ethnicity, perform differently on the bar examination and whether any disparities in performance are the result of the admissions process or of other factors.”
The public interest in access to the admissions database is sufficient to warrant further consideration on remand of whether any countervailing consideration weighs against public access, the court said.
The court ruled that disclosure of “de-identified” information in the state bar's database is not necessarily precluded by the state bar's promise of confidentiality to bar applicants or by applicants' constitutional privacy rights.
To protect applicants' privacy, the plaintiffs proposed not only that individual-identifying information would be redacted but also that categories of data would be “clustered” to prevent the identity of any bar applicant from being reconstructed after disclosure. The state bar complained, however, that this methodology would amount to creating a new record, which is not required, and that the task would be unduly burdensome and costly.
The court said these issues raise disputed factual questions to be addressed on remand. It pointed out that by stipulation of the parties the trial court proceedings were divided into two phases: whether the state bar has any legal duty to produce the requested records, and whether turning them over would violate applicants' privacy rights and be too burdensome for the bar.
The trial proceedings did not reach the second phase because the trial court concluded the state bar had no legal duty to produce the records. Thus, the supreme court noted, the parties have not yet litigated whether and how applicants' privacy interests could be protected if public access to the database is permitted, or whether disclosure would impose an undue burden on the state.
The court suggested that on remand the bar may choose to implement the plaintiffs' redaction and clustering suggestions, or it may propose other measures if they satisfy the public's right of access while protecting applicants' privacy.
Otherwise, the court instructed, the trial court will have to resolve whether and how the records the plaintiffs seek may be produced without identifying individual applicants or otherwise unduly burdening any legitimate competing interests.
Jean-Paul Jassy of Bostwick & Jassy, Los Angeles, argued for Richard Sander and Joe Hicks. James M. Chadwick of Sheppard, Mullin, Richter & Hampton, San Francisco, argued for the California First Amendment Coalition. James M. Wagstaffe of Kerr & Wagstaffe, San Francisco, argued for the state bar.
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