Sander v. State Bar of Cal.
58 Cal. 4th 300
Cal.2013Background
- Professor Richard Sander and California First Amendment Coalition requested the State Bar admissions database (1972–2007) containing applicants' race/ethnicity, law school, LSAT, GPAs, bar exam scores, and pass/fail data, proposing de‑identification and clustering to protect privacy.
- The State Bar denied the request citing applicant confidentiality and privacy; it already publishes aggregated statistical reports but had not released individual‑level data without consent (except limited prior studies).
- Plaintiffs sued by writ of mandate; trial court (phase 1) held no law required disclosure and treated common‑law access as limited to traditional judicial/adjudicatory records, so it did not reach privacy/redaction or whether producing clustered data would create a new record.
- Court of Appeal reversed, finding a presumptive common‑law right of access to the admissions database subject to balancing against privacy and other countervailing interests, and remanded for the reserved issues.
- California Supreme Court affirmed the Court of Appeal: statutes and Bar rules do not categorically prohibit release of de‑identified data; a common‑law qualified right of access exists for records in which the public has a legitimate interest, and disclosure must be balanced against privacy/confidentiality and practical burdens (including whether de‑identification is feasible and whether producing clustered data would require creation of a new record).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does common law require disclosure of State Bar admissions database? | Common law grants public access to government records of legitimate public interest; database is presumptively open. | Common‑law access should be limited to records that officially memorialize court action; not every judicial‑branch record is public. | Yes: common law recognizes a qualified right of access to records of public interest (the database falls into a marginal category) subject to balancing against privacy and other countervailing interests. |
| Does Prop 59 or other statutes/rules mandate or bar disclosure (including State Bar rule 4.4)? | Prop 59 and constitutional policy favor disclosure; rule 4.4 should be narrowly construed. | Rule 4.4 renders applicant records confidential. | Statutes/rules do not categorically bar disclosure of de‑identified data; rule 4.4 is read narrowly under art. I, §3(b)(2) and does not prohibit release of effectively de‑identified information. |
| Do promises of confidentiality or applicants’ privacy rights categorically preclude release of de‑identified data? | Promise/confidentiality and privacy weigh against disclosure. | Same—privacy interest is significant and re‑identification risk prevents safe release. | No categorical bar; confidentiality/privacy are countervailing interests to be balanced; de‑identification may dispel the confidentiality concern but feasibility is a factual question for remand. |
| Must the State Bar create a new, clustered record format (i.e., engage in data manipulation) to comply? | Plaintiffs: redaction or clustering acceptable; State Bar can produce de‑identified data. | State Bar: required clustering/manipulation would amount to creating a new record, which disclosure law does not compel. | Undecided on merits: whether producing clustered/new records is required depends on technical complexity and burden — factual issue reserved for remand. |
Key Cases Cited
- NBC Subsidiary (KNBC‑TV), Inc. v. Superior Court, 20 Cal.4th 1178 (discusses First Amendment right of access to judicial adjudicatory records)
- Chronicle Pub. Co. v. Superior Court, 54 Cal.2d 548 (State Bar is a public officer/entity; addresses access and confidentiality)
- Copley Press, Inc. v. Superior Court, 6 Cal.App.4th 106 (two‑tier approach to court records: judicial records presumptively public vs. preliminary/confidential writings)
- Coldwell v. Board of Public Works, 187 Cal. 510 (pre‑decisional/other matters in public office may be subject to access based on public interest)
- Pantos v. City & County of San Francisco, 151 Cal.App.3d 258 (application of access balancing to jury lists and questionnaires)
- Mushet v. Department of Public Service, 35 Cal.App. 630 (common‑law access applied beyond strict statutory definition where public funds/interest implicated)
- Nixon v. Warner Communications, Inc., 435 U.S. 589 (federal recognition of a general common‑law right to inspect public records, including judicial records)
- Washington Legal Foundation v. United States Sentencing Commission, 89 F.3d 897 (D.C. Cir.) (distinguishes memorializing/official documents from predecisional/advisory materials for access analysis)
- Craemer v. Superior Court, 265 Cal.App.2d 216 (historical statement of common‑law right to inspect public records in which the public has an interest)