Trial tests privacy of bar
applicant data
By Laura Ernde
Staff Writer
Access to State Bar
applicants’ personal information – including race, law school grade-point
average, LSAT and bar exam scores – was the subject of a week-long trial last
month in San Francisco Superior Court.
The lawsuit was brought by
UCLA law professor Richard Sander and others who seek 36 years of detailed
information about bar applicants to conduct research on law school admissions
practices.
The requesters want the data to
be released in a “de-identified” form. The State Bar opposes the release of the
data, arguing it violates promises it made to law students regarding privacy
and limited use of their records and personal information. In addition, the bar
argues that the requesters’ proposal does not render the data truly anonymous
and exposes individuals to a high risk of re-identification. No other state bar
has released this kind of data.
“The privacy rights of bar
members and people of color in the legal profession and law students who may be
unfairly singled out are of paramount importance to the State Bar,” State Bar
Executive Director Elizabeth Rindskopf Parker said.
The State Bar declined to
release the data in 2007, citing privacy concerns, and Sander filed suit. The
trial court initially determined that the State Bar’s admissions records were
not public records.
In December 2013, the
California Supreme Court held 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.”
In January 2016, the State
Bar became subject to the California Public Records Act. Also, a new provision
was added to the State Bar Act providing that State Bar admissions records are
confidential and shall not be released. The trial court has determined that
provision applies where the record “may identify an individual applicant.”
The case went trial last
month before Judge Mary E. Wiss, with the parties focused on two issues. One is
whether the data, if released, may identify an individual applicant. The other
is whether the modifications of the data suggested by the requesters require
the creation of a new document beyond the scope of the Public Records Act.
The requesters have offered alternative
protocols they say will allow the data to be released without identifying
individuals. Their expert, data scientist Luk Arbuckle, testified that the various
protocols provided a reasonable level of protection against identification. But
he admitted that no de-identification of the data could wholly eliminate the
risk of re-identification.
Latanya Sweeney, a Harvard
professor who invented the anonymization method at issue, testified for the
State Bar that it would still be possible for applicants to be identified with
bar exam scores, race and other information under the proposed protocols.
Sweeney demonstrated two unique re-identifications of individuals during the
trial.
Sweeney also testified that merging
and linking various data sets to re-identify records has become a big business,
and these companies would likely attempt to mine this data for facts about
individual lawyers. Sweeney also explained that the proposed protocols required
substantial modification of the existing data and creation of new data.
A number of individuals and
groups, including the Black Women Lawyers Association of Los Angeles and the
John M. Langston Bar Association of Los Angeles, argue that releasing the data
could stigmatize them, and the usefulness of the data is not worth the harm it
would cause.
Judge Wiss will receive closing
briefs in September. There is no timetable for a decision. The case is Sander
v. State Bar of California, CPF 08-508880.