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Bar seeks rehearing of decision on applicant data

The State Bar asked an appellate court to revisit its decision last month that bar exam data may be subject to public disclosure rather than enjoying protections that guard confidentiality. If the First District Court of Appeal declines to rehear the matter, the bar faces a July 20 deadline to appeal to the Supreme Court.  

In a unanimous decision, a three-justice appellate panel reversed a San Francisco Superior Court judge’s finding that the bar has no legal duty to provide access to its bar exam data. Its records, said Judge Curtis Karnow, are not subject to disclosure under the common law presumption of access to public records.

But the appellate panel disagreed and sent the case back to the Superior Court to decide whether the bar should release the data. Wrote Justice Peter Siggins, “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.”

Richard Sander

UCLA economist and law professor Richard Sander sued the bar, seeking bar exam records for use in evaluating law school admission policies. Joined by the First Amendment Coalition and former State Bar governor Joe Hicks, Sander is asking for applicants’ race, law schools attended, year graduated from law school, bar pass rate, law school grades and LSAT scores. The Committee of Bar Examiners and the Board of Governors rejected Sander’s request in 2007, asserting that the release of such data would violate their promises to law students of privacy and limited use of the records.

Sander wants to use the data to test his “mismatch theory,” which concludes that affirmative action actually hurts minority students. He believes students of color who are admitted to top schools because of race-based standards have trouble competing with non-affirmative action students. They would do better, he believes, at less competitive schools.

Sander said he and his team were “pleasantly surprised” that the appellate justices reached a unanimous decision and added that they are prepared to fully litigate the case. State Bar data on applicants offer the opportunity to measure “what’s happening in learning itself,” Sander said. “For the first time, we can estimate how much of the bar passage gap is due to mismatch versus other causes.”

The appellate panel found that the common law right of access to public documents is broader than the First Amendment right of access to adjudicatory court documents. The lower court erred, the justices found, in deciding bar records “were not subject to disclosure under the common law presumption of access to public documents.”

In remanding the case, it suggested that the superior court can determine whether the bar should produce the data by balancing the “interest in confidentiality and the burden this request imposes on the bar against the strong public policy favoring disclosure.”

The bar argued that its records are judicial records and as such are not subject to public access. “In other words,” the justices wrote, “the bar claims that because it is part of the judicial branch its records are immune from the common law presumption of access unless they are ‘adjudicatory’ documents.” But the panel gave short shrift to that argument: “The bar is not a court. It is a public corporation.”

That assertion misses the point, said bar attorney Michael Von Loenwenfeldt. In his petition for rehearing, he says the question was whether the bar is acting “as part of a court in connection with the admissions and license to practice law. It clearly is.” Von Loewenfeldt argued that in a case such as Sander’s, that deals with public access to admissions records, “the State Bar is as much part of a ‘court’ for the purpose of selecting the correct disclosure rule as the clerk’s office or the Office of the Jury Commissioner.” Therefore, the same rule that applies to juror questionnaires should apply to bar admission records, i.e., they are not public.

The petition for rehearing also notes that the appellate panel offered no guidance for determining whether particular bar documents are part of a public record subject to disclosure. “Yet that was the key question in this appeal,” Von Loewenfeldt said. The justices provided “no definition or test whatsoever for determining whether a document in the possession of the State Bar is a public record, but instead only the test for when public records must be disclosed.”

The appellate panel said Sander is not asking for judicial records that pertain to the bar’s “adjudicatory functions” related to bar admissions. Instead, he’s asking for data provided by bar applicants. “We perceive no basis for holding the bar’s raw admission data immune from public scrutiny,” the justices said.

They further concluded that the bar’s own rule governing the confidentiality of applicant records “is not absolute.”

Sander said the common law basis for the decision could have widespread ramifications since virtually every government agency collects data and uses it to make policy decisions. “There has been a lot of public discussion about how disclosure is going to work in the new age of computer databases,” he said. Where an agency collects data and makes public findings, “this is really saying it doesn’t matter if you’re covered by a public records act or not. That has a pretty wide impact.”