Amici urge state Supreme Court to review State Bar data case

First Amendment organizations have filed amicus briefs arguing the California Supreme Court should hear a case on whether the State Bar is obligated to release information on bar applicants, such as race and LSAT scores, under the California Public Records Act.

The Electronic Frontier Foundation and the Reporters Committee for Freedom of the Press filed briefs in support of the petitioners and expressed concern over a ruling they say limits public access to government agencies' electronic records.

In August, the 1st District Court of Appeal unanimously upheld a lower court decision that the data requested by Richard H. Sander, a UCLA School of Law professor, is not subject to disclosure under the CPRA due to privacy concerns. Sander and the First Amendment Coalition, which joined the case as a plaintiff, filed a petition for review on Oct. 2 as well as a depublication request. The Supreme Court has at least 60 days to decide on the petition. Sander v. State Bar of California, S251671 (Cal., filed Oct. 2, 2018).

Sander requested the information on bar applicants 11 years ago to test his "mismatch hypothesis" that admitting students based on preferences, such as for race, results in poorer performance on the bar exam.

"There is a real public issue of great importance here, and the bar seems dedicated to obscuring that," Sander said.

In a statement, the State Bar said it has a duty to protect the privacy of bar applicants and their personal information.

"The State Bar of California is not required to make the data at issue public because the release of the data would pose a significant privacy risk to the applicants," the bar said in the statement.

The Supreme Court ruled in 2013 the bar is required to disclose the requested information if it could be provided in a way that protected applicants' privacy.

In a subsequent 2016 trial in San Francisco County Superior Court, Judge Mary E. Wiss ruled in favor of the State Bar on five independent grounds. The court of appeal affirmed the judgment, noting the disclosure would necessitate creating a new record to recode the information and preserve the applicants' privacy. The CPRA "does not require [public agencies] to create new records to satisfy a request," the opinion stated. Sander v. State Bar of California, A150061 and A150625 (Cal. App. 1st Dist. Aug. 23, 2018).

"The court of appeal's decision in our view would allow or could allow agencies to exclude public access far, far too easily, and more easily than I think is supportable under the CPRA," said David Snyder, executive director of the First Amendment Coalition, co-petitioner in the case.

In its amicus brief, Electronic Frontier Foundation is asking the Supreme Court to settle the question of whether the anonymization of public data amounts to a creation of new records under the CPRA.

Camille Fisher, Frank Stanton fellow at Electronic Frontier Foundation, said the redaction process for electronic records is analogous to that of paper records, which is required under the CPRA.

"The superior court's ruling almost seemed to say that if there were privacy interests at stake, then the state didn't need to release the records," she said. "We wholeheartedly disagree."

Caitlin Vogus, a Reporters Committee staff attorney, said the association filed an amicus brief because it was concerned about the broader implications for journalists seeking electronic data.

"So many government records are now being held in an electronic format that the case could have a real impact down the road for reporters," she said.

The League of California Cities and the California State Association of Counties have both filed briefs opposing petitioners' request for depublication of the appellate ruling. In its brief, the League of California Cities argued "the holding in this case provides the guidance that is needed to ensure a balance between privacy rights and transparency while maintaining consistency across public agencies."

"Petitioners and amici are asking the Supreme Court to change fundamentally California public records law," the bar said in its statement. "Public agencies receive thousands of records requests each year. Those agencies would be unable to function if, in addition to producing existing records, they were required to conduct data analysis and create new 'anonymous' records for release. The Court of Appeal's conclusion that existing law does not require such record creation is entirely correct."

Sander said the arguments for studying the correlation of race to bar passage rates are "stronger now than ever." Though most parties are primarily concerned with the freedom of information issues at play in the case, the Pacific Legal Foundation is also interested in the substance of Sander's research. The organization submitted an amicus brief in the court of appeal supporting the appellants but, due to timing, does not currently plan to weigh in on the Supreme Court case.

"I think we have a very great need in California society and in society writ large for a new crop of constantly excited attorneys to come in the profession," said PLF attorney Timothy R. Snowball. "Unfortunately, as Professor Sander has highlighted in his research, there seems to be a mismatch ... in regard to race policy and the ultimate results in bar passage."

Snyder said he is optimistic the Supreme Court will take up the case, citing the court's 2013 ruling as an indication it understands the relevant public interests.

"The records of the California State Bar are of paramount public importance," he said. "They regulate the legal profession; their records therefore should be accessible to the public."