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MCLE Self-Assessment Test

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.