Metropolitan News-Enterprise

 

Monday, June 1, 2021

 

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Court of Appeal:

State Bar Must Bare Non-Confidential Parts Of Documents on Bar Exam Grading

 

By a MetNews Staff Writer

 

Statutory provisions which render the grading of State Bar exam answers confidential are not insuperable, the First District Court of Appeal has held, declaring that a judge erred in sustaining a demurrer without leave to amend to a complaint which sought portions of a document reviewed in closed session by a subcommittee of the Committee of Bar Examiners.

Some portions of that document, relating to the scoring of what a particular examinee turned in, might be disclosable, Justice Stuart R. Pollak of Div. Three said in an unpublished opinion, filed Thursday.

The agenda for the May 28, 2020 meeting of the subcommittee indicated that members would consider, in closed session, “Action on Partial Invalidation of Applicant’s Test Product Due to Printing Error.” The agenda indicated that members would look at a document designated “Attachment C-200.”

Two days before the meeting was to be held, Christine Tuma brought an action in the San Francisco Superior Court against the State Bar under the Bagley-Keene Open Meeting Act and California Public Records Act. She sought a restraining order to prevent the entirety of the meeting from being closed to the public and an order permitting her viewing of non-confidential portions of Attachment C-200.

Tuna is described in the complaint as “a member of the public and an interested person who wishes to attend the State Bar of California’s meetings where information, records, and decisions on the California Bar Examination are shared with the public.”

The complaint sets forth (with paragraph numbering omitted):

“Defendant State Bar of California is preventing the public from being informed about the facts surrounding the printing errors that occurred in the administration of the February 2020 California Bar Examination.

“Defendant State Bar of California is preventing the public from being informed about the extent to which attorney applicants’ scores on the February 2020 California Bar Examination were affected by printing errors.

“Defendant State Bar of California is preventing the public from being informed about whether Defendant State Bar of California has performed any due diligence investigating the extent to which attorney applicants’ scores on the February 2020 California Bar Examination were affected by printing errors.

“Defendant State Bar of California is preventing the public from being informed about the likelihood that printing errors will affect attorney applicants’ scores on the September 2020 California Bar Examination.”

On May 27, the State Bar filed opposition. Caroline W. Holmes of the Office of General Counsel wrote:

“As indicated in the May 28, 2020 Subcommittee meeting agenda, the Subcommittee will convene to decide a single issue: whether to partially invalidate an individual applicant’s test product due to an isolated printing error. Plaintiff admits that the Subcommittee is entitled to convene in closed session for this limited purpose. Her insistence that ‘nonconfidential’ portions of the meeting take place in open session is based entirely upon her mistaken belief that the meeting will also include discussions about ‘printing errors affecting the February 2020 California Bar Examination results’ or the ‘Validity of grading’ of the examination. It will not.”

TRO Denied

On the morning of May 28, Judge Ethan P. Schulman denied a temporary restraining order and order to show cause, and the noon meeting proceeded.

The judge explained that the Open Meeting Act contains exceptions and “the topic of the closed session—whether to invalidate an individual applicant’s test product due to a printing error—falls squarely within the scope of these exceptions from the open meeting requirements of the Act.”

He also denied a request that he order that the meeting be audio-recorded to permit later in camera review. The judge said that if the act vests discretion in him to make such and order, he would opt not to do so in light of the weakness of Tuma’s showing.

Action on Demurrer

On July 23, 2020, Schulman sustained a demurrer without leave to amend to both causes of action. He said the claim under the Open Meeting Law is barred by express provisions of the act, remarking:

“Plaintiff’s opposition verges on the frivolous.”

He went on to say:

“The demurrer to the second cause of action for violation of the California Public Records Act is also sustained without leave to amend. Plaintiff has not filed a verified petition, as expressly required by that Act. (Gov. Code § 6259(a).) In any event, the attachment prepared for the Subcommittee’s use at the closed meeting is exempt from disclosure under several statutory exemptions, including Government Code section 6254(c) [where disclosure would constitute ‘an unwarranted invasion of personal privacy’], section 6265(g) [licensing examination data], and Business & Professions Code section 6060.25(a) [confidential applicant data].) Plaintiff fails to respond to any of these arguments.”

Pollak’s Opinion

Pollak noted that the issue of whether any portion of the subcommittee’s meeting should have been ordered open to the public is moot but, in any event, the Open Meeting Act was not violated.

Addressing the cause of action under the Public Records Act, he said:

“Plaintiff does not dispute that portions of Attachment C-200 are exempt from disclosure. She argues, however, that her complaint sufficiently alleges that the State Bar violated the Public Records Act by failing to disclose those portions of the attachment ‘which did not contain confidential information.’ We agree.

“The State Bar was entitled to redact all exempt material, but any ‘reasonably segregable portion’ of the document was subject to disclosure. While the State Bar may ultimately prevail by proving that the document contains no information subject to disclosure, or that the nonconfidential portion is not ‘reasonably segregable’ from the confidential portion, plaintiffs allegations are sufficient for purposes of demurrer.”

Comment in Footnote

The jurist said in a footnote:

“At oral argument, counsel for the State Bar argued that the information regarding the printing error, even if otherwise segregable from the applicant’s confidential information, would remain exempt from disclosure under section 6255, subdivision (a) which permits the State Bar to ‘justify withholding any record by demonstrating...that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.’ It seems doubtful that an explanation of the nature of a ‘printing error’ would affect the security of the administration of the examination or otherwise affect the public interest, but in all events no such justification appears on the face of the complaint.”

The case is Tuma v. State Bar of California, A161037.

 

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