State high court denies review in State Bar data fight

An 11-year battle over State Bar data concluded Wednesday when the California Supreme Court denied both a petition for review and a depublication request in the case.

UCLA School of Law professor Richard H. Sander had sought personal data on bar applicants, including race and LSAT scores, but his request had been repeatedly denied due to privacy concerns.

"We are very pleased that the Supreme Court denied review in Sander v. State Bar, upholding the ruling that 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," State Bar executive director Leah Wilson said in a statement. "The State Bar has a duty to protect the privacy and anonymity of Bar applicants and their personal information, including their race, ethnicity, law school, grade point average, LSAT scores, and bar exam scores."

David Snyder, director of the First Amendment Coalition, co-petitioner in the case, said he was disappointed by the outcome.

"We have maintained throughout the life of this case that the public has a right to see the records of the admissions database of the State Bar," he said.

The case's lengthy history included a 2013 trip to California's high court, in which the court ruled the bar should disclose the data if it could do so without violating applicants' privacy. The court, however, reserved judgment on how it should be done, and in a subsequent 2016 trial court ruling, San Francisco Superior Court Judge Mary E. Wiss determined it was not possible.

As a result, the 1st District Court of Appeal's August decision stands, potentially impacting future California Public Records Act requests of electronic documents. The appellate panel unanimously upheld the trial court's ruling, saying the data would need to be "recoded" to fulfill Sander's request and anonymized. Such data manipulation constituted the creation of a new record, which was not required under the California Public Records Act, the court found. Sander v. State Bar of California, A150061 and A150625 (Cal. App. 1st Dist. Aug. 23, 2018).

"While the CPRA requires public agencies to provide access to their existing records, it does not require them to create new records to satisfy a request," Presiding Justice Peter J. Siggins wrote.

The Electronic Frontier Foundation and the Reporters Committee for Freedom of the Press had supported the petition for review out of concern the published opinion could limit public access to electronic records.

"It remains to be seen what practical effects it might have on other records' requesters," said Reporters Committee staff attorney Caitlin Vogus of the published opinion.

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

"It boggles the mind that a State Bar which pays lip-service to the importance of a diverse legal profession has remained steadfast in its unwillingness to look at the data," Sander said in a statement. "A public records lawsuit, it is clear, cannot force them to do so. But we hope that other parties -- concerned state legislators, the Supreme Court, civil rights groups, or the rank-and-file of California attorneys -- will step forward and push the Bar to commission a fair and independent study with access to its data."

"That battle may have been lost, but I ultimately think the State Bar will be exposed to greater scrutiny," Snyder added. "It needs to be exposed to greater scrutiny."