Metropolitan News-Enterprise


Friday, August 24, 2018


Page 3


C.A. Denies UCLA Law Professor’s Bid for Bar Information


By a MetNews Staff Writer


UCLA School of Law professor Richard H. Sander’s decade-long mission to obtain State Bar admission information—including applicants’ races, grades and bar examination passage history—was rebuffed yesterday by the First District Court of Appeal, which held that the request would require the creation of new records.

Sander, whose vocal opposition to affirmative action has drawn wide attention, sought the information in order to support his so-called “mismatch theory,” which holds that race-based admissions policies ultimately hurt the law school applicants they are meant to help by putting students into schools that are beyond their academic abilities.

Presiding Justice Peter J. Siggins of Div. Three wrote the opinion affirming San Francisco Superior Court Judge Mary E. Wiss’s order denying separate petitions under the California Public Records Act (“CPRA”) by Sander and the nonprofit First Amendment Foundation.

Siggins’ opinion is the latest decision in a case which in 2013 resulted in the state Supreme Court holding that the State Bar’s admissions database is subject to the common law right of public access and they must disclose such information as can be released without violating the privacy of the applicants.

Identifiably Information

Sander asked the State Bar to produce records from applicants from 1972-2008 showing each applicant’s race/ethnicity, law school, transfer status, year of law school graduation, law school and undergraduate grade point averages, Law School Admissions Test scores, and bar examination performance.

The State Bar relied on the testimony of Latanya Sweeney, an expert on data privacy and anonymization. According to Sweeney, even the requested information without names or other identifiers could be used for “re-identification,” which allows someone looking at the data to deduce the person it belongs to.

To counter Sweeney’s testimony, Sander’s experts offered four protocols whereby the requested information would be anonymized to a point that re-identification would be difficult or impossible.

New Records Required

Siggins noted that it is well settled law in cases interpreting both the CPRA and the federal analogue, the Freedom of Information Act, that a public agency is not required to create new records in response to a request for disclosure. He credited Wiss’s finding that such an undertaking was inherent in any of the four suggested anonymity protocols.

Wiss said:

“Protocol One would also require the State Bar to create a physical data enclave which would provide restricted access to the State Bar’s Admissions Database. Petitioners, however, failed to present any authority in support of their position that the CPRA allows this Court to order the State Bar to create this type of data enclave. The type of data enclave proposed under Protocol One is simply not a valid remedy under the CPRA.

“Protocols Two, Three, and Four require the creation of even more new data...”

Sander’s Contentions Rejected

Sander and the Free Speech Foundation contended that even if the State Bar were required to write a new computer program, such a task is required by the CPRA.

Siggins rejected this argument. He noted that Government Code §6253(c)(4) and §6253.9(b), which mention computer programming in response to a request for information, are requirements that an agency do what is necessary to identify, redact and produce electronic records as they exist.

He said:

“But segregating and extracting data is a far cry from requiring public agencies to undertake the extensive ‘manipulation or restructuring of the substantive content of a record’…such as Petitioners propose here. Certainly, they have not identified any instances in which courts have compelled a public agency to undertake programming that would assign new or different values to existing data, replace groups of data with median figures or variables, and collapse and band data into newly defined categories.”

The case is Sander v. State Bar of California, A150061 and A150625.


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