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Sander v. State Bar of California

Supreme Court of California

December 19, 2013

Richard SANDER et al., Plaintiffs and Appellants,
STATE BAR OF CALIFORNIA et al., Defendants and Respondents.

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[165 Cal.Rptr.3d 252] Sheppard, Mullin, Richter & Hampton, James M. Chadwick, Palo Alto, Evgenia N. Fkiaras, David E. Snyder, San Francisco, and Guylyn R. Cummins, San Diego, for Plaintiff and Appellant California First Amendment Coalition.

Jane Roberta Yakowitz; Bostwick & Jassy, Gary L. Bostwick, Jean-Paul Jassy and Kevin L. Vick, Los Angeles, for Plaintiffs and Appellants Richard Sander and Joe Hicks.

Davis Wright Tremaine, Mary Duffy Carolan and John Rory Eastburg for Brentwood Press and Publishing Co., California Newspapers Partnership, Calistoga Tribune, Calaveras Enterprise, Champion Newspapers, Dailey Republic, Embarcadero Media Inc., Feather Publishing Co., Inc., Freedom Communications, Inc., Los Angeles Times Communications LLC, Malibu Times Inc., Marinscope Community Newspapers, Mission Viejo News, Inc., Random Lengths News, Sacramento Valley Mirror, Santa Maria Times, The Ark Newspaper, The Bakersfield Californian, The McClatchy Company, The Mountain Enterprise, The North County Times, The Press-Enterprise, The Viking, Valleywide Newspapers, Ventura County Reporter, ALM Media, LLC, The Associated Press, Atlantic Media, Inc., Bloomberg News, Cox Media Group, Inc., Dailey News, L.P., E.W. Scripps Company, Forbes, Inc., Gannett Co., Inc., Hearst Corporation, NBC Universal Media, LLC, Reuters America LLC, Stephens Media LLC, The Newsweek/Dailey Beast Company LLC, The New York Times Company, The Washington Post, American Society of News Editors, Association of Alternative Newsmedia, Californians Aware, The California Newspaper Publishers Association, National Freedom of Information Coalition, The National Press Photographers Association, The Radio Television Digital New Association and The Reporters Committee for Freedom of the Press as Amici Curiae on behalf of Plaintiffs and Appellants.

Law Office of Judy Alexander and Judy Alexander, Capitola, for Vikram Amar, Jane Roberta Yakowitz and Mark Grady as Amici Curiae on behalf of Plaintiffs and Appellants.

Sharon L. Browne, Meriem L. Hubbard, Sacramento, and Joshua P. Thompson for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiffs and Appellants.

Center for Constitutional Jurisprudence, John Eastman, Anthony T. Caso, Sacramento, Karen J. Lugo and David Llewellyn, Citrus Heights, for Gerald Reynolds, Todd Gaziano, Gail Heriot, Peter Kirsanow and Ashley Taylor, Jr., as Amici Curiae on behalf of Plaintiffs and Appellants.

[165 Cal.Rptr.3d 253] Joshua Koltun, San Francisco, for Doug Williams as Amicus Curiae on behalf of Plaintiffs and Appellants.

Kerr & Wagstaffe, James M. Wagstaffe, Michael John Von Loewenfeldt; Starr Babcock, Lawrence C. Yee, San Francisco, and Rachel S. Grunberg, for Defendants and Respondents.

Snell & Wilmer, Mary-Christine Sungaila and Harsh P. Parikh, Costa Mesa, for Multicultural Bar Alliance as Amicus Curiae on behalf of Defendants and Respondents.

Reed Smith and Dennis Peter Maio, San Francisco, for The Bar Association of San Francisco as Amicus Curiae on behalf of Defendants and Respondents.

Eva Paterson, Allison S. Elgart and Fabián Rentería for Equal Justice Society as Amicus Curiae on behalf of Defendants and Respondents.

Perkins Coie, Vilma R. Palma-Solana, Los Angeles, Sunita Bali, San Francisco; Lim, Ruger & Kim, Bruce Iwasaki and Norma Nava, Los Angeles, for People of Color, Inc., as Amicus Curiae on behalf of Defendants and Respondents.

Bingham McCutchen, William F. Abrams, Redwood Shores, Patrick T. Weston and Audrey Lo, Palo Alto, for Dwight Aarons, George Acero, Daniel James Alexander II, Charlene Bellinger Honig, Nikki Brown, Peter L. Carr IV, Claudia J. Castillo, Eugene Clark-Herrera, Francisco Cortes, Kendra Fox Davis, Lisa Gilford, Marc-Tizoc Gonzalez, Rebecca Hall, Sara Jackson, Rasheda Kilpatrick, Parissh A. Knox, Andrea Luquetta, Xochitl Marquez, Letitia D. Moore, Shirin Soleman, Angela Crystelle Thomas-Taylor, Anthony J. Tolbert, Erika K. Woods and Doe 1 as Amici Curiae on behalf of Defendants and Respondents.


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[314 P.3d 491] Plaintiffs Richard Sander, Joe Hicks, and the California First Amendment Coalition requested that the State Bar of California (State Bar) provide them access to information contained in its bar admissions database, including applicants' bar exam scores, law school attended, grade point averages, Law School Admissions Exam scores, and race or ethnicity. Plaintiff Sander sought this information in order to conduct research on racial and ethnic disparities in bar passage rates and law school grades.

The question presented is whether any law requires disclosure of the State Bar's admissions database on bar applicants. We conclude that under the common law right of public access, there is a sufficient public interest in the information contained in the admissions database such that the State Bar is required to provide access to it if the information can be provided in a form that protects the privacy of applicants and if no countervailing interest outweighs the public's interest in disclosure. Because the trial court concluded that there was no legal basis for requiring disclosure of the admissions database, the parties did not litigate, and the trial court did not decide, whether and how the admissions database might be redacted or otherwise modified to protect applicants' privacy and whether any countervailing interests weigh in favor of nondisclosure. Consequently, the Court of Appeal will be directed to remand the case to the trial court.


The State Bar is a " public corporation" of which every person licensed to practice law in the state is a member. (Cal. Const., art. VI, § 9.) The State Bar

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serves " as an administrative arm of this court for the purpose of assisting in matters of admission [165 Cal.Rptr.3d 254] and discipline of attorneys." ( Emslie v. State Bar (1974) 11 Cal.3d 210, 224, 113 Cal.Rptr. 175, 520 P.2d 991.) The State Bar's Committee of Bar Examiners administers the requirements for admission to the bar, including the bar examination and the assessment of applicants' moral character, and certifies to this court those applicants who satisfy the requirements. [314 P.3d 492] ( In re Menna (1995) 11 cal.4th 975, 985, 47 Cal.Rptr.2d 2, 905 P.2d 944; Bus. & Prof.Code, §§ 6046, 6064.) This court has the sole authority to grant or deny admission to practice law, but it accords great deference to the recommendation of the State Bar. (See Preston v. State Bar (1946) 28 Cal.2d 643, 650, 171 P.2d 435; In re Petition of Lacey (1938) 11 Cal.2d 699, 701, 81 P.2d 935.)

The State Bar maintains an admissions database that includes information on approximately 246,000 applicants who applied to take the California bar examination from 1972 through 2007. The files in this database generally include information obtained from applicants through the admissions process— including race or ethnicity, law school attended and year of graduation, and Law School Admissions Test (LSAT) score— and information regarding the applicant's performance on the bar exam— including whether the applicant applied for, took, passed or failed the bar exam, and the applicant's scores on the bar exam. Some of the files also include the applicant's law school grade point average, but the bar stopped collecting that data about 10 years before the request at issue here was made. All information concerning a particular applicant is identified by a file number that has no relationship to the applicant's name or personal information.

Much of the information contained in the admissions database is obtained through the application process. Every applicant signs a form authorizing any educational or other institutions to release to the State Bar all records or transcripts related to the applicant that the State Bar seeks in connection with the application, including his or her law school transcripts. It also authorizes the State Bar to transmit the applicant's scores on the bar exam to his or her law school. Applicants additionally complete an " ethnic survey." The survey form states that the information regarding the applicant's ethnicity is sought " to assist in the continuing evaluation of the examination" and that it " will be treated in a confidential manner and will be used only for research purposes. It will not be retained by the Committee as part of your application."

The State Bar regularly publishes the names of those who pass the bar exam. Using the admissions database, it also prepares and publishes a number of reports regarding the California bar exam. After each bar exam, it prepares a statistical analysis of the bar exam that reports the passage rates for various categories of applicants, including type of law school attended (such as ABA

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accredited or unaccredited), particular law school attended, first-time takers and repeaters, ethnic group, and sex. The State Bar also has undertaken and reported numerous studies on particular topics related to the bar exam, including the discrepancy in passage rates among racial/ethnic groups and whether bar exam scores are affected by law school admissions practices related to race and ethnicity.[1] These reports are [165 Cal.Rptr.3d 255] available to the public. Except through its reports, the State Bar has not made the information in its database available to any other entity without the consent of applicants, with one exception. At the request of the Chief Justice, in 1990 and 1992, it provided information identifying individual applicants and their bar exam scores and law schools to the Law School Admissions Council [2] for a national study on the relationship between law school performance and performance on the bar exam.

In 2006, Professor Richard Sander, of the University of California, Los Angeles School of Law, proposed to collaborate with the State Bar on research regarding racial disparities in bar passage rates and law school grades. Sander's hypothesis is that these asserted disparities might be affected by racial preferences in law school admissions [314 P.3d 493] that, according to his theory, result in a " mismatch" between the minority student's qualifications and the level of instruction at the law school attended. The State Bar's Committee of Bar Examiners rejected Sander's proposal and the Board of Governors confirmed that decision. Subsequently, Sander submitted to the State Bar a request for the release of records in the database regarding applicants' race, ethnicity, law school, year of law school graduation, whether the applicant was a transfer student, bar examination scores, whether the applicant passed the exam, law school grade point average (GPA), LSAT score, and undergraduate GPA. Sander sought the information with any identifying information about individual applicants redacted. The California First Amendment Coalition submitted a request to the State Bar to inspect or receive copies of the same data requested by Sander. The request was reviewed by the State Bar's Committee of Bar Examiners, which rejected it, citing, among other things, privacy concerns.

Sander, joined by the First Amendment Coalition, submitted a revised formal request for public information, citing article I of the California Constitution, the common law right of access to public records, and the

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California Public Records Act (Gov.Code, § 6250 et seq.). This request sought the same information, but proposed additional means for addressing the State Bar's privacy concerns. It proposed, among other things, that certain types of data be " clustered" to make it more difficult to combine the information in the database with information available from public sources to deduce an individual's identity. The proposal to " cluster" data addressed concerns that if there were a small number of individuals in a particular category or " cell" it would arguably be easy to identify them. " For example, suppose that a law school had only one Native American student in its 2001 graduating class. Disclosing an individual-level database that included information on law school, year of graduation, and detailed race (including ‘ Native American’ as a category) would make it possible for a diligent member of the public to deduce this student's identity, and thereby know that the other information in the database applied to him or her." The revised request would reduce the likelihood of such identification by requiring the State Bar to cluster data so that individuals are associated with a category of law school rather than with a particular law school and with a range of years of graduation rather than a particular year. Race would be reported in only four broad categories— White, Hispanic, Black, and other. Furthermore, if [165 Cal.Rptr.3d 256] any " cell" contained fewer than five individuals, data would be further clustered. Sander offered to pay any reasonable costs incurred by the State Bar in complying with the request. The request was denied.

Believing that this court might have exclusive jurisdiction in the matter, Sander and the First Amendment Coalition (hereafter, collectively, plaintiffs) initially filed a petition for writ of mandamus with this court. We denied the petition without prejudice to refiling in an appropriate court. Plaintiffs then filed a petition for writ of mandate in the superior court, seeking to compel the State Bar to provide the records.


By stipulation of the parties, proceedings in the superior court were divided into two phases. The first phase addressed whether the State Bar has any legal duty to produce the requested records. The second phase would address " whether provision of the requested records to [plaintiffs] would violate the privacy of any person and ... whether the cost or burden of manipulation, reproduction, or disclosure of the requested records that may be entailed by [plaintiffs'] request provide a basis for denying or limiting disclosure." After trial of the first phase based on declarations and stipulated facts, the trial court concluded that no law required the State Bar to disclose the records in the admissions database. It rejected plaintiffs' argument that disclosure was required under the state common law. The trial court concluded that the common law right of access to judicial branch records was limited to court

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records of adjudicatory proceedings, that is, to " judicial record[s]" as defined in Code of Civil Procedure, section 1904— " the record or official entry of the proceedings in [314 P.3d 494] a court of justice, or of the official act of a judicial officer, in an action or special proceeding."

The trial court also rejected plaintiffs' argument that disclosure was required under Proposition 59, a 2004 ballot measure that amended the state Constitution to include a right of public access to " the writings of public officials." (Cal. Const., art. I, § 3, subd. (b)(1).) It concluded that Proposition 59 did not create any new substantive rights, but simply constitutionalized existing rights of access.

In light of these conclusions, the trial court did not reach the question whether plaintiffs were seeking the production of a " new" record that was not required under public access laws. The trial court concluded it was unnecessary to resolve that issue, and in any event the record was insufficient. It recognized that " [i]n the context of digital data, it does not make much sense to consider simply whether a document demand requires the creation of a ‘ new’ document since every production of electronically stored data literally creates a ‘ new’ document on screen, on paper, or in a ‘ new’ digital file." To determine what constitutes the creation of a new file would require consideration of the complexity of the tasks required to produce the data requested, a matter that could not be determined without expert declarations. The trial court denied the petition without reaching the privacy issues that had been reserved for the second phase.

The Court of Appeal reversed, holding that the common law right of access to public records created a presumption that the records in the State Bar's admissions database must be disclosed, subject to a determination concerning whether the public's interest in disclosure is outweighed by the privacy interests implicated by disclosure or other countervailing public policy concerns. The Court of Appeal concluded that the common law right [165 Cal.Rptr.3d 257] of public access, as applicable to the judicial branch, is not limited to court adjudicatory records. It recognized a " parallel, but distinct" right of access based on the First Amendment right to open trials, which is limited to records of adjudicatory proceedings. (See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1198-1209 & fn. 25, 86 Cal.Rptr.2d 778, 980 P.2d 337( NBC Subsidiary ).) It concluded, however, that California had long recognized a broader common law right of access that applies to all three branches of government and is not limited to adjudicatory records. Under the common law, the Court of ...

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