California Court Issues Preliminary Ruling in Favor of Bar Applicants’ Private Data, Denying Prof. Sander’s Request

A California Superior Court judge on March 24 issued a preliminary ruling (download PDF) denying Professor Richard Sander’s request for access to bar applicants’ private data from the State Bar of California.

Prof. Sander’s lawsuit attempted to compel the State Bar to release information regarding applicants’ race, GPA, and bar exam scores in order to advance his research on what he terms the “mismatch hypothesis” – that affirmative action in law schools actually harms Black students by putting them in schools where they are unable to compete.

Sander’s findings to date have been readily contested, and his requests for confidential Bar data repeatedly denied – however, he has continued to pursue his claims in court, prompting attempted intervention by law students who claim that release of the confidential data would violate their right to privacy.

Judge Curtis Karnow ruled that Sander’s request should be denied because the data he requested is not a public record under California law (this order is currently pending, and will not be final until entered by the Court). Sander and his colleagues have stated that they intend to appeal this ruling.

While the final outcome of this case remains to be seen, this initial proposed ruling is a victory for the law students whose private records are at risk of being released without their permission.

Below is a more extensive summary of the March 24 preliminary decision in Sander v. State Bar of California by EJS law clerk Audrey Daniel.

Petitioner Richard Sander has filed suit seeking information from the State Bar of California. Specifically, he is attempting to compel the Bar to release information, including race, GPA, Bar exam scores, etc. for applicants for the Bar exam. Sander plans to utilize this data to argue that affirmative action hinders African Americans’ progress in becoming attorneys. EJS has joined the opposition to protect the privacy of Bar applicants against Sander gaining access to their personal information, and using it for such purposes.

The case will be heard in two stages. First, the judge will decide whether the particular data that Sander requests is considered public record. If so, and Sander prevails at the first stage, then the court will then hear the second phase. There, the judge will consider the privacy and burden issues implicated in the request.

The judge recently issued a Proposed Statement of Decision on phase one. Based on a variety of authorities that Sander claimed allowed him access to this information, the judge found that none of them mandated the Bar release this type of personal information of its applicants. This proposed decision is not yet final, but indicates that the court is heavily swayed towards denying Sander’s requests.

Sander first argued that he is entitled to this data based on the common law right of access to documents filed with the courts. However, the California Supreme Court has distinguished between documents related to adjudication and those that do not, when applying such a right of access. The Court there ruled that while there is a broad public right to documents related to judicial hearings and records, it does not include materials not related to a trial or adjudication. The judge in the case at hand found that the personal information that Sander seeks clearly does not relate to a trial or adjudication, and he therefore is not entitled to it based on this theory.

Sander also claims that he is entitled to the data as judicial records. He argues that there is a broad, general right to access of judicial records. While the definition of judicial records is in fact broad, even more so than the common law right to access, it still does not encompass the type of information that Sander seeks.

Another avenue for access asserted was Proposition 59, the California Public Records Act, which could be a potential basis on which Sander is entitled to the information. He argues that the voters’ intent was to include every writing of a public official, even if it was simply in the possession of an official and not actually written by an official. The court, though, did not find his evidence of that intent sufficient, and found that the plain language of the Proposition would not include Bar applicants’ personal information. While the Act expanded public access, it is limited to meetings of public bodies and writings of public officials. Information collected by officials regarding private individuals does not fall under either category. Thus, Sander cannot gain access to these records under Proposition 59.

The court could now rule that based on neither the common law right of access, the right of access to judicial records, nor Proposition 59, Sander did not have a right to this information. The countervailing policy that we support is the privacy rights of all applicants who gave this information with the understanding that it would not be released to the public in any form. While we expect Sander to appeal this decision, EJS commends the court on recognizing and honoring the privacy of California Bar exam applicants.

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