S.C. to Consider Disclosure of State Bar Admission Records

Friday, August 26, 2011

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S.C. to Consider Disclosure of State Bar Admission Records

By a MetNews Staff Writer

The California Supreme Court yesterday agreed to decide whether a UCLA researcher seeking personal and academic information about bar examination applicants may be entitled to receive this data.

The justices, who held their weekly conference in San Francisco on Wednesday, issued an order yesterday granting review in Sander v. State Bar, 196 Cal.App.4th 614, decided by the First District Court of Appeal’s Div. Three on June 10.

The lower panel ruled the State Bar’s records are potentially subject to disclosure under the common law presumption of access to public documents. It directed that the lawsuit by economist and law professor Richard Sander be remanded for the trial court to craft an order for production.

Sander had requested access to applicants’ undergraduate and law school records, standardized test scores, ethnic background, and gender to use in conducting research on the large and persistent gap in bar exam passage rates among racial and ethnic groups.

He has advanced a theory that placing unqualified minority students in elite law schools results in lower bar pass rates than if they attended schools where their admissions credentials match those of their classmates. Calling the outcome the “mismatch effect,” he suggests preferential admissions policies may actually harm, rather than help, students of color.

After the State Bar rejected his request, based, in part on concerns about applicants’ interests in the confidentiality of their personal information, Sander, joined by the California First Amendment Coalition and civil rights activist Joe Hicks, petitioned the San Francisco Superior Court for a writ of mandate.

Judge Curtis E.A. Karnow subsequently found the State Bar could not be compelled to disclose the requested records pursuant to the common law right of access to public records or the First Amendment.

Writing for the appellate court, Justice Peter J. Siggins disagreed. He said the issue State Bar had provided “no compelling reason” why the presumptive right of access to public information would not extend to its records.

“The Bar is a public corporation and the records sought relate to its official function of administering the bar exam, a matter of legitimate public interest,” Siggins said. “Although it has been described as an administrative arm of the Supreme Court for purposes of assisting in matters of admission and discipline,” the justice emphasized the State Bar itself “is not a court and does not function as a court for all purposes.”

In light of this, Siggins reasoned that disclosure of the State Bar’s admissions data would “not necessarily raise the concerns peculiar to the courts that have driven the development of the rule shielding many preliminary, unofficial court documents from public access” so Karnow erred in applying the test “devised to distinguish between the official work product of the courts and their preliminary, nonadjudicative records” at trial.

Siggins explained that a public access determination required balancing the applicants’ privacy concerns, the burden disclosure would place on the State Bar, and public policy in favor of transparency.

In unanimously granting review, the high court framed the issues for briefing and argument as follows:

“(1) What ground, if any, exists for finding that the information sought by plaintiffs is information that is subject to public disclosure? (2) What is the effect, if any, of the representation of confidentiality made by the State Bar to the individuals from whom the information was collected? (3) Does the form in which the requested information is regularly maintained affect whether the State Bar must provide the requested information?”