Sander v. State Bar of Cal. , 58 Cal. 4th 300 ( 2013 )

Filed 12/19/13
IN THE SUPREME COURT OF CALIFORNIA
RICHARD SANDER et al., )
)
Plaintiffs and Appellants, )
) S194951
v. )
) Ct.App. 1/3 A128647
STATE BAR OF CALIFORNIA et al., )
) San Francisco City and County
Defendants and Respondents. ) Super. Ct. No. CPF-08-508880
____________________________________)
Plaintiffs Richard Sander, Joe Hicks, and the California First Amendment
Coalition requested that the State Bar of California (State Bar) provide them
access to information contained in its bar admissions database, including
applicants‟ bar exam scores, law school attended, grade point averages, Law
School Admissions Exam scores, and race or ethnicity. Plaintiff Sander sought
this information in order to conduct research on racial and ethnic disparities in bar
passage rates and law school grades.
The question presented is whether any law requires disclosure of the State
Bar‟s admissions database on bar applicants. We conclude 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. Because the trial court concluded that there was no legal basis for
requiring disclosure of the admissions database, the parties did not litigate, and the
1
trial court did not decide, whether and how the admissions database might be
redacted or otherwise modified to protect applicants‟ privacy and whether any
countervailing interests weigh in favor of nondisclosure. Consequently, the Court
of Appeal will be directed to remand the case to the trial court.
I. FACTS
The State Bar is a “public corporation” of which every person licensed to
practice law in the state is a member. (Cal. Const., art. VI, § 9.) The State Bar
serves “as an administrative arm of this court for the purpose of assisting in
matters of admission and discipline of attorneys.” (Emslie v. State Bar (1974) 11
Cal.3d 210, 224.) The State Bar‟s Committee of Bar Examiners administers the
requirements for admission to the bar, including the bar examination and the
assessment of applicants‟ moral character, and certifies to this court those
applicants who satisfy the requirements. (In re Menna (1995) 11 Cal.4th 975, 985;
Bus. & Prof. Code, §§ 6046, 6064.) This court has the sole authority to grant or
deny admission to practice law, but it accords great deference to the
recommendation of the State Bar. (See Preston v. State Bar (1946) 28 Cal.2d 643,
650; In re Petition of Lacey (1938) 11 Cal.2d 699, 701.)
The State Bar maintains an admissions database that includes information
on approximately 246,000 applicants who applied to take the California bar
examination from 1972 through 2007. The files in this database generally include
information obtained from applicants through the admissions process — including
race or ethnicity, law school attended and year of graduation, and Law School
Admissions Test (LSAT) score — and information regarding the applicant‟s
performance on the bar exam — including whether the applicant applied for, took,
passed or failed the bar exam, and the applicant‟s scores on the bar exam. Some
of the files also include the applicant‟s law school grade point average, but the bar
stopped collecting that data about 10 years before the request at issue here was
2
made. All information concerning a particular applicant is identified by a file
number that has no relationship to the applicant‟s name or personal information.
Much of the information contained in the admissions database is obtained
through the application process. Every applicant signs a form authorizing any
educational or other institutions to release to the State Bar all records or transcripts
related to the applicant that the State Bar seeks in connection with the application,
including his or her law school transcripts. It also authorizes the State Bar to
transmit the applicant‟s scores on the bar exam to his or her law school.
Applicants additionally complete an “ethnic survey.” The survey form states that
the information regarding the applicant‟s ethnicity is sought “to assist in the
continuing evaluation of the examination” and that it “will be treated in a
confidential manner and will be used only for research purposes. It will not be
retained by the Committee as part of your application.”
The State Bar regularly publishes the names of those who pass the bar
exam. Using the admissions database, it also prepares and publishes a number of
reports regarding the California bar exam. After each bar exam, it prepares a
statistical analysis of the bar exam that reports the passage rates for various
categories of applicants, including type of law school attended (such as ABA
accredited or unaccredited), particular law school attended, first-time takers and
repeaters, ethnic group, and sex. The State Bar also has undertaken and reported
numerous studies on particular topics related to the bar exam, including the
discrepancy in passage rates among racial/ethnic groups and whether bar exam
scores are affected by law school admissions practices related to race and
ethnicity.1 These reports are available to the public. Except through its reports,
1 Klein and Bolus, Are Bar Exam Scores Affected by Law School
Admissions Practices? (PR-88-2, Oct. 17, 1988); Klein and Bolus, Minority Group
(footnote continued on next page)
3
the State Bar has not made the information in its database available to any other
entity without the consent of applicants, with one exception. At the request of the
Chief Justice, in 1990 and 1992, it provided information identifying individual
applicants and their bar exam scores and law schools to the Law School
Admissions Council2 for a national study on the relationship between law school
performance and performance on the bar exam.
In 2006, Professor Richard Sander, of the University of California, Los
Angeles School of Law, proposed to collaborate with the State Bar on research
regarding racial disparities in bar passage rates and law school grades. Sander‟s
hypothesis is that these asserted disparities might be affected by racial preferences
in law school admissions that, according to his theory, result in a “mismatch”
between the minority student‟s qualifications and the level of instruction at the law
school attended. The State Bar‟s Committee of Bar Examiners rejected Sander‟s
proposal and the Board of Governors confirmed that decision. Subsequently,
Sander submitted to the State Bar a request for the release of records in the
database regarding applicants‟ race, ethnicity, law school, year of law school
graduation, whether the applicant was a transfer student, bar examination scores,
whether the applicant passed the exam, law school grade point average (GPA),
LSAT score, and undergraduate GPA. Sander sought the information with any
(footnote continued from previous page)
Performance on the California Bar Examination (PR-87-2, Dec. 3, 1987); Klein,
An Analysis of the Relationships Between Bar Examination Scores and an
Applicant‟s Law School, Admissions Test Scores, Grades, Sex, and Racial/Ethnic
Group (79-1P, Aug. 1979).
2 The Law School Admissions Council, a public nonprofit organization,
administers the LSAT. It also conducts numerous studies related to the LSAT and
to law school admissions policies.
4
identifying information about individual applicants redacted. The California First
Amendment Coalition submitted a request to the State Bar to inspect or receive
copies of the same data requested by Sander. The request was reviewed by the
State Bar‟s Committee of Bar Examiners, which rejected it, citing, among other
things, privacy concerns.
Sander, joined by the First Amendment Coalition, submitted a revised
formal request for public information, citing article I of the California
Constitution, the common law right of access to public records, and the California
Public Records Act (Gov. Code, § 6250 et seq.). This request sought the same
information, but proposed additional means for addressing the State Bar‟s privacy
concerns. It proposed, among other things, that certain types of data be
“clustered” to make it more difficult to combine the information in the database
with information available from public sources to deduce an individual‟s identity.
The proposal to “cluster” data addressed concerns that if there were a small
number of individuals in a particular category or “cell” it would arguably be easy
to identify them. “For example, suppose that a law school had only one Native
American student in its 2001 graduating class. Disclosing an individual-level
database that included information on law school, year of graduation, and detailed
race (including „Native American‟ as a category) would make it possible for a
diligent member of the public to deduce this student‟s identity, and thereby know
that the other information in the database applied to him or her.” The revised
request would reduce the likelihood of such identification by requiring the State
Bar to cluster data so that individuals are associated with a category of law school
rather than with a particular law school and with a range of years of graduation
rather than a particular year. Race would be reported in only four broad categories
— White, Hispanic, Black, and other. Furthermore, if any “cell” contained fewer
than five individuals, data would be further clustered. Sander offered to pay any
5
reasonable costs incurred by the State Bar in complying with the request. The
request was denied.
Believing that this court might have exclusive jurisdiction in the matter,
Sander and the First Amendment Coalition (hereafter, collectively, plaintiffs)
initially filed a petition for writ of mandamus with this court. We denied the
petition without prejudice to refiling in an appropriate court. Plaintiffs then filed a
petition for writ of mandate in the superior court, seeking to compel the State Bar
to provide the records.
II. PROCEEDINGS BELOW
By stipulation of the parties, proceedings in the superior court were divided
into two phases. The first phase addressed whether the State Bar has any legal
duty to produce the requested records. The second phase would address “whether
provision of the requested records to [plaintiffs] would violate the privacy of any
person and . . . whether the cost or burden of manipulation, reproduction, or
disclosure of the requested records that may be entailed by [plaintiffs‟] request
provide a basis for denying or limiting disclosure.” After trial of the first phase
based on declarations and stipulated facts, the trial court concluded that no law
required the State Bar to disclose the records in the admissions database. It
rejected plaintiffs‟ argument that disclosure was required under the state common
law. The trial court concluded that the common law right of access to judicial
branch records was limited to court records of adjudicatory proceedings, that is, to
“judicial record[s]” as defined in Code of Civil Procedure, section 1904 — “the
record or official entry of the proceedings in a court of justice, or of the official act
of a judicial officer, in an action or special proceeding.”
The trial court also rejected plaintiffs‟ argument that disclosure was
required under Proposition 59, a 2004 ballot measure that amended the state
Constitution to include a right of public access to “the writings of public officials.”
6
(Cal. Const., art. I, § 3, subd. (b)(1).) It concluded that Proposition 59 did not
create any new substantive rights, but simply constitutionalized existing rights of
access.
In light of these conclusions, the trial court did not reach the question
whether plaintiffs were seeking the production of a “new” record that was not
required under public access laws. The trial court concluded it was unnecessary to
resolve that issue, and in any event the record was insufficient. It recognized that
“[i]n the context of digital data, it does not make much sense to consider simply
whether a document demand requires the creation of a „new‟ document since
every production of electronically stored data literally creates a „new‟ document
on screen, on paper, or in a „new‟ digital file.” To determine what constitutes the
creation of a new file would require consideration of the complexity of the tasks
required to produce the data requested, a matter that could not be determined
without expert declarations. The trial court denied the petition without reaching
the privacy issues that had been reserved for the second phase.
The Court of Appeal reversed, holding that the common law right of access
to public records created a presumption that the records in the State Bar‟s
admissions database must be disclosed, subject to a determination concerning
whether the public‟s interest in disclosure is outweighed by the privacy interests
implicated by disclosure or other countervailing public policy concerns. The
Court of Appeal concluded that the common law right of public access, as
applicable to the judicial branch, is not limited to court adjudicatory records. It
recognized a “parallel, but distinct” right of access based on the First Amendment
right to open trials, which is limited to records of adjudicatory proceedings. (See
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1198-
1209 & fn. 25 (NBC Subsidiary).) It concluded, however, that California had long
recognized a broader common law right of access that applies to all three branches
7
of government and is not limited to adjudicatory records. Under the common law,
the Court of Appeal concluded, “ „where there is no contrary statute or
countervailing public policy, the right to inspect public records must be freely
allowed.‟ ” (Craemer v. Superior Court (1968) 265 Cal.App.2d 216, 222
(Craemer).) It held that because 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,” the database was presumptively open to public access,
“subject to balancing against the private interests implicated by disclosure.” In
accordance with the parties‟ stipulation that the case would be tried in two phases,
the Court of Appeal reversed and remanded for further proceedings in the trial
court to consider and weigh any countervailing policy considerations against the
presumption of public access. The Court of Appeal declined to decide whether
providing the requested information would involve the creation of a new record
because the trial court had concluded that the record was not adequate to resolve
that question. We granted review.
III. DISCUSSION
As explained below, no statute or rule resolves the question before us. We
conclude, nevertheless, that under common law principles there is a public interest
in access to the State Bar‟s admissions database that will require the State Bar to
disclose the requested information if it can be applied in a form that does not
violate the privacy of applicants and if other considerations do not warrant
nondisclosure.
A. Public Access Laws
The California Public Records Act (Gov. Code, § 6250 et. seq. (CPRA)),
governs requests for the records of most public agencies, but it does not apply to
the judicial branch. The definition of state agencies to which its provisions apply
8
excludes “those agencies provided for in . . . Article VI of the California
Constitution.” (Gov. Code, § 6252, subd. (f).) The CPRA requires those agencies
provided for in article VI to make available to the public only “an itemized
statement of the total expenditures and disbursement” of the agency. (Gov. Code,
§ 6261.) Article VI of the state Constitution establishes the courts and the State
Bar, as well as the Judicial Council, the Commission on Judicial Appointments,
and the Commission on Judicial Performance. (Cal. Const., art. VI, §§ 1-9.)
Thus, these entities are exempt from most provisions of the CPRA.
A variety of other authorities, however, address access to the records of
judicial branch entities, including the courts and the State Bar. Article I, section 3,
subdivision (b) of the state Constitution, adopted by initiative in 2004 (Prop. 59),
addresses “the right of access to information concerning the conduct of the
people‟s business.” (Cal. Const., art. I, § 3, subd. (b)(1).) More specifically,
access to court records is governed by long-standing common law principles as
well as constitutional principles derived from the First Amendment right of public
access to trials. (See NBC Subsidiary, supra, 20 Cal.4th at p. 1208, fn. 25; Copley
Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106 (Copley Press).) Recently
adopted rules of court govern access to the administrative records of the courts, the
Judicial Council, and the Administrative Office of the Courts. (See Cal. Rules of
Court, rule 10.500(c)(3).) The State Bar is subject to the State Bar Act, which
contains numerous statutes that make various of its activities and records public
and others confidential. (See Bus. & Prof. Code, § 6000 et seq.)3 It is also subject
3 Most general laws prescribing procedures for state agencies do not apply to
the State Bar. (Bus. & Prof. Code, § 6001 [“No law of this state restricting, or
prescribing a mode of procedure for the exercise of powers of state public bodies
or state agencies, . . . shall be applicable to the State Bar, unless the Legislature
expressly so declares.”].)
9
to rules adopted by its governing body, which was, at the time that plaintiffs made
their request, the Board of Governors and is now called the Board of Trustees
(hereafter, the Board).4 The Board was authorized to, among other things, adopt
rules “necessary or expedient” for the carrying out of the State Bar‟s
responsibilities. (Bus. & Prof. Code, § 6025.)
B. Statutes and Rules Applicable to the State Bar
As a preliminary matter, we conclude that the statutes and rules specifically
applicable to the State Bar neither demand nor prohibit the access to the State
Bar‟s admissions database that plaintiffs seek, although they do confirm that
members and applicants have some expectation of privacy in their records. Under
the State Bar Act, the State Bar must make available to the public, in addition to
the financial information specified in Government Code section 6261, part of the
CPRA, “the classification and total annual compensation paid to each of its
employees by name,” as well as its policies regarding employee benefits and
compensation. (Bus. & Prof. Code, § 6001.4.) The meetings of the Board are
open to the public, with specified exceptions. (Bus. & Prof. Code, § 6026.5.) The
bar must maintain official membership records. (Bus. & Prof. Code, § 6002.1,
subd. (a).) An unsuccessful applicant has the right to inspect his or her
examination papers, and the grading of those papers. (Bus. & Prof. Code, § 6065,
subd. (a).)
4 Legislation adopted in 2011 changed the name of the governing board to
the board of trustees and revised the size and makeup of the Board. (Bus. & Prof.
Code, § 6001.2, added by Stats. 2011, ch. 417, § 28, enacting Sen. Bill No. 163
(2011-2012 Reg. Sess.).) That legislation also required the Board to ensure that its
open meeting requirements are consistent with, and conform to, the Bagley-Keene
Open Meeting Act (Gov. Code, § 11120 et seq.), the legislative scheme that
applies to most other state agencies. (Bus. & Prof. Code, § 6026.7.)
10
Bar members have the right, however, to limit the disclosure of their
information “not reasonably related to regulatory purposes.” (Bus. & Prof. Code,
§ 6001.) The “investigations or proceedings conducted by the State Bar
concerning the moral character of an applicant shall be confidential unless the
applicant, in writing, waives the confidentiality.” (Bus. & Prof. Code, § 6060.2.)
Any “demographic data collected” by the State Bar about its members “shall be
used only for general purposes and shall not be identified to any individual
member or his or her State Bar record.” (Bus. & Prof. Code, § 6009.5.)
Rules adopted by the Board require public access to a number of State Bar
records. For example, each member‟s name, bar number, current address,
telephone number, e-mail address, date of admission in California and other
jurisdictions, membership status, and date of any discipline imposed, is available
to the public. (Rules of State Bar, tit. 2, rule 2.2.) The State Bar‟s Committee of
Bar Examiners is authorized to “publish statistics for each examination in
accordance with its policies.” (Rules of State Bar, tit. 4, rule 4.7.)
Only one State Bar rule is arguably relevant here. The State Bar suggests
that rule 4.4 prohibits public disclosure of its admissions database. Rule 4.4
makes the records of applicants for bar membership confidential “unless required
to be disclosed by law . . . or authorized by the applicant in writing for release to
others.” (Rules of State Bar, tit. 4, rule 4.4, fn. omitted (hereafter rule 4.4).)
This rule does not require that plaintiffs‟ request for access to the database
be denied. Rule 4.4 does not define “applicant records.” As noted above, the
admissions database at issue in this case is an electronic record of information
about each applicant‟s performance on the bar exam and data about each applicant
obtained by the State Bar in the application process. Although the admissions
database reasonably comes within the term “applicant records,” plaintiffs have
requested the information in a “de-identified” form, that is, without applicant
11
names or other information that could be used to identify an individual.
Assuming, for purposes of discussion, that the records in the admissions database
may effectively be de-identified, such de-identified records do not constitute
“applicant records” to which public access would be prohibited under the rule.
The apparent purposes of rule 4.4 are to protect applicants‟ privacy interests and
the State Bar‟s ability to collect the information it needs to evaluate applicants,
which it does under a promise of confidentiality. If the applicant cannot be
identified, disclosure of information does not impair his or her privacy interests
and the prospect of such disclosure is unlikely to affect the bar‟s ability to obtain
the information it needs. (Cf. Osborn v. Bd. of Regents (Wis. 2002) 647 N.W.2d
158, 168, fn. 11 [under federal Family Educational Rights and Privacy Act, “once
personally identifiable information is deleted, by definition, a record is no longer
an education record since it is no longer directly related to a student”].) Indeed, as
noted earlier, the State Bar itself regularly publishes statistical reports on bar exam
passage rates, broken down by race, gender, and law school attended, in a form
that does not identify individual applicants. Thus, in practice, the State Bar does
not interpret its rule as requiring that de-identified information from applicant
records be kept completely confidential. The most reasonable construction of rule
4.4 is that it preserves the confidentiality of applicant records that connect
particular information about an applicant with the applicant‟s name or other
identifying information.
This construction of rule 4.4 is consistent with the approach used in laws
governing information similar to that sought here — including LSAT scores and
academic records — in other contexts. A testing agency that administers tests
used for purposes of admission to postsecondary educational institutions —
including the Law School Admissions Counsel, which administers the LSAT —
may not disclose an individual‟s test score without the individual‟s authorization.
12
(Ed. Code, § 99161, subd. (a).) Such an agency, however, “may release test scores
and other information in a form which does not identify any individual test subject
for purposes of research, studies, and reports primarily concerning the test itself.”
(Ed. Code, § 99161, subd. (b).)
Similarly, the records of elementary and secondary school pupils are
confidential and may be released only in limited circumstances (Ed. Code,
§ 49076), but a school district is not prohibited “from providing, in its discretion,
statistical data from which no pupil may be identified to any public agency or
entity or private nonprofit college, university, or educational research and
development organization when such actions would be in the best educational
interests of pupils.” (Ed. Code, § 49074.)
Under the federal law applicable to educational institutions receiving
federal funds (20 U.S.C. § 1232g), student records generally may not be disclosed
without consent, but disclosure without consent is permitted “after the removal of
all personally identifiable information provided that the educational agency or
institution or other party has made a reasonable determination that a student‟s
identity is not personally identifiable, whether through single or multiple releases,
and taking into account other reasonably available information.” (34 C.F.R.
§ 99.31(b)(1) (2013).)
If there were some doubt about whether rule 4.4 prohibits public access to
the State Bar‟s database even in a de-identified form, we nevertheless must
interpret the rule in light of article I, section 3, subdivision (b) of the California
Constitution. That section provides: “(1) The people have the right of access to
information concerning the conduct of the people‟s business, and therefore . . . the
writings of public officials and agencies shall be open to public scrutiny. [¶] (2)
A statute, court rule, or other authority . . . shall be broadly construed if it furthers
the people‟s right of access, and narrowly construed if it limits the right of access.”
13
(Ibid.) Although the State Bar contends that section 3, subdivision (b)(1) does not
create any substantive rights of access and merely “constitutionalizes” existing
public access rights, it does not contend that the rule of interpretation contained in
subdivision (b)(2) is inapplicable to its rules. Consequently, we are required to
interpret rule 4.4 narrowly. Narrowly interpreted, rule 4.4 does not bar release of
the de-identified information that plaintiffs seek.
C. The Common Law Right of Access to Public Records
As demonstrated above, the statutes and rules applicable to the State Bar do
not bar plaintiffs‟ request, but neither do they specifically require disclosure. We
turn to the question of whether the common law, including cases interpreting
contemporary statutory language, recognizes a right of public access to the records
requested by plaintiffs. As discussed above, the Court of Appeal concluded that
the common law establishes a presumptive right of access to the State Bar‟s
admissions database “subject to balancing against the private interests implicated
by disclosure” because 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. The State Bar does not dispute that a common law right of access
to public records exists or that this right applies to the State Bar. (See Chronicle
Pub. Co. v. Superior Court (1960) 54 Cal.2d 548, 563 [State Bar and its officers
are “public officers”].) However, the State Bar argues that the common law
applicable to all public entities — upon which the Court of Appeal relied —
applies only to records that officially memorialize or record government action.
The State Bar contends that the Court of Appeal erred in concluding that under
common law principles, there is a presumption of public access to any record
maintained by a public entity that relates in some way to the public‟s business.
14
The State Bar interprets the common law right of public access too
narrowly. Historically “ „[a]t common law every person was entitled to the
inspection, either personally or by his agent, of public records, including
legislative, executive, and judicial records, provided he had an interest therein
such as to enable him to maintain or defend an action for which the documents or
records sought could furnish evidence or necessary information.‟ ” (Craemer,
supra, 265 Cal.App.2d at p. 220, fn. 3, quoting State v. McGrath (Mont. 1937) 67
P.2d 838, 841.) In California, the right of public access was codified in 1872 in
statutes that did not limit the right to those seeking access for the purpose of
litigation. (See Code Civ. Proc., former § 1888 [enacted 1872]; former Pol. Code,
§ 1032 [enacted 1872].)5
The State Bar is correct that under early California law, the term “public
records” was generally used to refer to the official records of public entities. Code
of Civil Procedure, former section 1892 provided: “Every citizen has a right to
inspect and take a copy of any public writing of this State, except as otherwise
expressly provided by statute.” (Enacted 1872, repealed by Stats. 1968, ch. 1473,
§ 25, p. 2945.) Public writings were defined in the 1872 Code of Civil Procedure
as “[t]he written acts or records of the acts of the sovereign authority, of official
bodies and tribunals, and of public officers, legislative, judicial, and executive”
and “[p]ublic records, kept in this State, of private writings.” (Code Civ. Proc.,
5 The Code of Civil Procedure and the Political Code (as well as the Civil
Code and Penal Code) were enacted in 1872. “The four codes were not published
as part of the Statutes of 1871-72 and were not given chapter numbers.” (Kleps,
The Revision & Codification of Cal. Statutes 1849-1953 (1954) 42 Cal. L.Rev.
766, 775.)
15
former § 1888, enacted 1872 and repealed by Stats. 1968, ch. 1473, § 24, p. 2945;
Craemer, supra, 265 Cal.App.2d at p. 220.)
The case law recognized, however, that the right of public access was not
limited to “public records” as so defined. First, relevant statutory language
contemplated disclosure of some “other matters.” (Former Pol. Code, § 1032.)
Prior to the passage of the CPRA in 1968, both former Political Code section 1032
and its successor statute, Government Code section 1227 also provided: “The
public records and other matters in the office of any officer are at all times, during
office hours, open to the inspection of any citizen of this State.” (Former Pol.
Code, § 1032, repealed by Stats. 1951, ch. 655, § 37, p. 1865; Gov. Code, former
§ 1227, enacted by Stats. 1951, ch. 655, § 23, p. 1851 and repealed by Stats. 1968,
ch. 1473, § 38, p. 2945, italics added; see ante, p. 18.) The term “public records,”
as used in these statutes, was interpreted to mean the same as “public writings,” as
defined in Code of Civil Procedure, former section 1888. (Craemer, supra, 265
Cal.App.2d at p. 220.) As the quoted language shows, however, these statutes also
permitted access to “other matters” in government offices.
Case law interpreted the term “other matters” based upon fundamental
public policy: “The „other matters‟ referred to . . . is matter which is „public,‟ and
in which the whole public may have an interest.” (Whelan v. Superior Court
(1896) 114 Cal. 548, 550 [holding that written instructions to a sheriff for carrying
out a writ of execution on behalf of a creditor, although possessed by a public
officer, were not subject to disclosure because the sheriff was acting as an agent of
the creditor and not in his official capacity].) The scope of disclosure was not
well-defined: “There is no precise formula by which it can be determined whether
a writing is such „other matter‟; it depends in each instance upon the facts of the
particular case. It is obvious that not every piece of correspondence or written
statement lodged in the office of a public officer partakes of such a public interest
16
as to be open to general inspection.” (City Council v. Superior Court (1962) 204
Cal.App.2d 68, 75.)
In Coldwell v. Board of Public Works (1921) 187 Cal. 510, 519-220, this
court concluded that preliminary plans and estimates related to a public works
project held in the office of the city engineer were not “public records” as defined
in Code of Civil Procedure, section 1888, because they had not yet been approved;
nevertheless, they were “other matters” to which the public had a right of access
under former Political Code section 1032. The public policy in favor of access to
matters of public interest informed our interpretation of this statute. These plans
represented steps in the completion of a large public project that was being
undertaken by public employees at public expense. “As such they are matters
which affect the public, and in which the public has an interest, if that interest is
only to see that the city engineer is taking steps toward the completion of [the
project].” (Coldwell, supra, at pp. 520-521.)
A number of Attorney General opinions addressing the right of public
access under these former statutes expressed the view that particular documents in
possession of government agencies were not subject to public disclosure because
they were neither the “written acts or records of the acts” of public officials or
bodies nor of sufficient public interest to qualify as “other matters” to which
access was granted under section 1227 or similarly worded predecessor statutes.
(See, e.g., 31 Ops.Cal.Atty.Gen. 103, 104 (1958) [applications to the Real Estate
Commissioner for various licenses are not public records because the information
on these applications “is not of sufficient interest to the public”]; 18
Ops.Cal.Atty.Gen. 231 (1951) [reports on county hospitals required to be made by
Department of Public Health are subject to right of access, but investigative
reports, data, and information upon which the report itself is based are not]; 11
Ops.Cal.Atty.Gen. 41, 45 (1948) [concluding that production reports submitted by
17
mine operators to the Division of Mines for the purpose of assembling statistical
data need not be disclosed because there is no public interest in the production
figures of an individual mine operator, but noting that statutory clarification would
be desirable because “the common law rule of inspection presents a nebulous and
unsatisfactory standard”].)
Courts applying these former statutes recognized exceptions to the policy in
favor of a right of access when other public policies favored nondisclosure. They
recognized that “public policy demands that certain communications and
documents shall be treated as confidential and therefore are not open to
indiscriminate inspection, notwithstanding that they are in the custody of a public
officer or board and are of a public nature.” (Runyon v. Board etc. of Cal. (1938)
26 Cal.App.2d 183, 184 [holding that letters and communications voluntarily
submitted to the parole board in connection with the determination of prisoners‟
applications for parole are confidential].) In Colnon v. Orr (1886) 71 Cal. 43, we
denied a citizen‟s petition to inspect a letter filed with a state insane asylum that
criticized its superintendent. “It is not every written charge made to a board of
supervisors, a board of directors, or trustees of a college or other state institution,
which, upon being filed in the office of their secretary or treasurer, or custodian of
their records, becomes thereby a public record to which any citizen may have
access at pleasure.” (Id. at p. 44.) We concluded that such a document was not
part of the public record. (Id. at pp. 44-45.)
Thus, prior to the adoption of the CPRA in 1968, case law applied the
relevant statutes in light of a fundamental policy favoring access to records in
which the public had a legitimate interest. Records maintained by a public entity
were subject to a qualified right of public access if they were records that
constituted the “written acts or records of acts” of the public entity, or if they
constituted “other matters” of sufficient public interest to justify requiring public
18
access, taking into account the facts of the particular case, unless other interests,
including a need for confidentiality, weighed in favor of nondisclosure.
The State Bar cites Mushet v. Department of Pub. Service (1917) 35
Cal.App. 630, 634 (Mushet), as support for its argument that only records that
officially memorialize or record government actions constitute public records
under California common law. As we explain, however, we find Mushet
consistent with the authorities discussed above, which recognize a qualified right
of public access to records of government agencies that are of public interest,
subject to countervailing public policy considerations.
To be sure, Mushet, supra, 35 Cal.App. at page 634 did recognize that
“public records,” as defined in the statutes of the time, included the official
records of government action. Mushet, however, did not limit the right of access
to documents that came within this definition, but applied a more expansive
common law rule to require disclosure. (Id. at pp. 636-639.) Mushet applied the
public access right to books, accounts, and other records possessed by the city
explaining items of expenditure, and anticipated expenditures, related to a project
to expand the infrastructure of power generation in Los Angeles. (Id. at p. 634.)
These documents were not technically “public records” within the meaning of
applicable statutes because, under the law in effect at the time, the city was acting
as a private utility corporation in conducting those activities and therefore the
records at issue were not “official.” Nevertheless, the records reflected the use of
public funds. The court concluded that voters and taxpayers had “a great interest
in the proper management of the business and matters pertaining to their county,
and therefore are entitled to know whether the public officials whom they have
selected to represent them have properly used, disbursed, and accounted for the
public funds which under the law have been confided to their custody and
administration.” (Id. at p. 637.) The court explained that “[t]he rules of the
19
common law will be applied to those cases which come within their reason and
equity, even when such cases seem to be outside the strict letter of such rules as
they are ordinarily stated. . . . (Id. at p. 638.)6
The state of the law of public access to the records of public entities prior to
the 1968 adoption of the CPRA was succinctly summarized in an opinion of the
California Attorney General as follows: “The phrase „public records‟ in Political
Code section 1032 was limited to those documents meeting the definitions of
„public writings‟ expressed in Code of Civil Procedure sections 1888 and 1894.
To balance this restricted definition, the law also permitted public inspection of
certain „other matters‟ in the office of a public officer if they were matters which
were „public‟ and in which the whole public might have an interest. This „other
matters‟ area was also subject to further enlargement by resort to common law
principles.” (53 Ops.Cal.Atty.Gen. 136, 142 (1970).) The right was not limited,
6 The federal courts have similarly recognized a common law right of public
access to government documents, although the parameters of the right have not
been clearly established. In Nixon v. Warner Communications, Inc. (1978) 435
U.S. 589, the court observed that “the courts of this country recognize a general
right to inspect and copy public records and documents, including judicial records
and documents.” (Id. at p. 597, fns. omitted.) “In contrast to the English practice,
[citation], American decisions generally do not condition enforcement of this right
on a proprietary interest in the document or upon a need for it as evidence in a
lawsuit. The interest necessary to support the issuance of a writ compelling access
has been found, for example, in the citizen‟s desire to keep a watchful eye on the
workings of public agencies, [citations], and in a newspaper publisher‟s intention
to publish information concerning the operation of government [citations].” (Id. at
pp. 597-598.) Admittedly, the sparse case law recognizing this common law right
made it “difficult to distill . . . a comprehensive definition” or “identify all the
factors to be weighed.” (Id. at pp. 598-599.) The high court concluded that this
process was best left to the “sound discretion of the trial court, a discretion to be
exercised in light of the relevant facts and circumstances of the particular case.”
(Id. at p. 599.)
20
as the State Bar contends it should be, to the official records of government
actions.
D. Common law principles as applied to court records
The State Bar contends that because it is a judicial branch entity, and
because it acts as an “administrative arm” of this court in connection with
admissions, these general common law principles should not govern it. Rather, it
argues, it should be subject to only the common law rules that are applicable
specifically to court records. Public access to court records, the State Bar
contends, is limited to those that “accurately and officially reflect[] the work of the
court.” (Copley Press, supra, 6 Cal.App.4th at p. 113 [defining a judicial record
as one that “accurately and officially reflects the work of the court, such as its
orders and judgments, its scheduling and administration of cases, its assignment of
judicial officers and administrators”].) Thus, it contends, public access to its
records under the common law should be limited to those that accurately and
officially reflect the work of the State Bar. As explained below, the general
principles regarding public access to the records of public entities established in
the statutes and case law discussed above continue to apply in the context of court
records. Consequently, the right is not limited in the manner proposed by the State
Bar.
When the CPRA was adopted in 1968, Code of Civil Procedure sections
1888 and 1892 and Government Code section 1227, discussed above, which had
codified the general right of access to public records, were repealed. (Stats. 1968,
ch. 1473, §§ 24-25, 38, p. 2945.) Nevertheless, both statute and case law
continued to recognize this right of access. The Legislature declared that “access
to information concerning the conduct of the people‟s business is a fundamental
and necessary right of every citizen of this state.” (Gov. Code, § 6250, enacted by
21
Stats. 1968, ch. 1473, § 39, p. 2946.) The courts were made exempt from most
provisions of the CPRA, but the Legislature explicitly preserved existing law
regarding “the status of judicial records as it existed immediately prior to the
effective date of this section.” (Gov. Code, § 6260, enacted by Stats. 1968,
ch. 1473, § 39, p. 2948.) The common law right of access continued to be applied
and to develop in cases addressing court records, which recognized that “[t]o
prevent secrecy in public affairs public policy makes public records and
documents available for public inspection by newsmen and members of the
general public alike.” (Estate of Hearst (1977) 67 Cal.App.3d 777, 782.) “Absent
strong countervailing reasons, the public has a legitimate interest and right of
general access to court records . . . .” (Id. at p. 784.)
The Court of Appeal in Copley Press, supra, 6 Cal.App.4th at pages 113-
115, aptly summarized the principles governing public access to court records. It
identified two categories of records typically used in the courts. The first included
“documentation which accurately and officially reflects the work of the court, such
as its orders and judgments, its scheduling and administration of cases, its
assignment of judicial officers and administrators[,] . . . the official court minutes,
all its written orders and dispositions, the official reports of oral proceedings, . . .
the master calendar[,] . . . [and] the various documents filed in or received by the
court . . . and the evidence admitted in court proceedings.” (Id. at p. 113.) These
documents are “ „judicial record[s]‟ ” that “represent and reflect the official work
of the court, in which the public and press have a justifiable interest.” (Ibid.)
They are presumptively accessible to the public.7
7 Copley Press recognized that both the First Amendment to the United
States Constitution and its state counterpart, article I, section 2, subdivision (a) of
the California Constitution, “provide broad access rights to judicial hearings and
(footnote continued on next page)
22
The second category of records identified in Copley Press includes
informal and preliminary writings used by the courts, such as rough drafts,
informal notes, memoranda, and other preliminary writings. (Copley Press, supra,
6 Cal.App.4th at p. 114.) Although such writings are used by judges in the course
of judicial work, they are not subject to the right of public access. (Ibid.; see also
NBC Subsidiary, supra, 20 Cal.4th at p. 1212, fn. 29.) The reason is that public
access to such documents is not generally in the public interest because they are
“tentative, often wrong, sometimes misleading . . . they do not speak for the court
and do not constitute court action.” (Copley Press, supra, at p. 114.)
Furthermore, access to such preliminary writings “would severely hamper the
users of the materials” because their purpose is to “extract raw and immature
thoughts from the brain to paper, so they can be refined and corrected.” (Ibid.)
Knowing that such materials could be exposed to the public eye would inhibit
their creation.
Copley Press recognized, however, that not every document used and
maintained by courts clearly falls into one of these two categories. It identified a
third category of records that “are on the margin” of these two categories. (Copley
(footnote continued from previous page)
records.” (Copley Press, supra, 6 Cal.App.4th at p. 111; accord, NBC Subsidiary,
supra, 20 Cal.4th at pp. 1208-1209 & fn. 25.) Under constitutional principles,
records of civil and criminal adjudicatory proceedings must be disclosed to the
public unless there is an overriding interest that supports sealing the record, there
is a substantial probability that the interest will be prejudiced by disclosure, the
sealing is narrowly tailored to serve the overriding interest, and there is no less
restrictive means of achieving the overriding interest. (NBC Subsidiary, supra, at
p. 1218; see Cal. Rules of Court, rule 2.550(d).) Because the State Bar‟s records
are not records of adjudicatory proceedings, neither the First Amendment nor the
counterpart state free speech provision is implicated in the present case.
23
Press, supra, 6 Cal.App.4th at p. 115.) In Copley Press, members of the press
sought access to the minute books of the clerks serving six superior court judges,
in order to investigate whether gifts judges reported from certain attorneys may
have influenced judicial conduct. The minute books are informal notes kept by the
clerks as a precursor to the creation of the formal minutes of the court. The
appellate court concluded that the clerk‟s rough minutes fall into this marginal
category. They are not official records of the court and do not constitute court
action, but “[o]n the other hand, they do not partake of the discretionary and
incomplete content that characterizes the judge‟s bench notes or the first drafts of
various court documents.” (Ibid.) The court concluded that the clerk‟s rough
minutes should be disclosed to the public. The court noted that they are kept
regularly by all clerks, they reflect ministerial actions by the clerk, and “the clerk‟s
minute book presumptively contains only accurate, descriptive and non-
discretionary information.” (Ibid.) Significantly, the court pointed out that the
minute book “is the one repository of easy access which provides a continuous
chronology of each court‟s daily activities.” Thus, in deciding whether documents
that do not clearly fall into the category of public court records are subject to a
right of access, Copley Press focused on the usefulness of the records and thereby
on the public‟s interest in access to those records.
Pantos v. City and County of San Francisco (1984) 151 Cal.App.3d 258(Pantos), applied a similar approach. First, Pantos held that a court‟s master jury
list of potential jurors qualified for service was a judicial record that must be
disclosed to the public. (Id. at pp. 262-263.) The master list constituted an official
list prepared by the jury commissioner that had historically been treated as a
public document, and the Court of Appeal found no compelling reason for
nondisclosure. (Id. at p. 263.) Second, Pantos held that questionnaires used by
the jury commissioner to determine whether citizens were qualified for jury
24
service did not have to be disclosed. Although the questionnaires were used and
maintained by the court, they had not historically been disclosed to the public.
The plaintiff in Pantos argued that access to the questionnaires would enhance the
selection of a fair jury, but the court concluded that voir dire questioning was
sufficient for that purpose. (Id. at pp. 263-265.) Furthermore, the questionnaire
stated that the prospective juror is compelled by law to provide the information
and that the questionnaire is confidential and will not be made public. (Id. at
p. 264.) “To disclose this information under these conditions may negatively
impact on the prospective juror‟s willingness to serve and thus interfere with
efficient court administration. . . . Public interest in withholding such
questionnaires outweighs the public‟s interest in disclosure.” (Id. at pp. 264-265.)
The approach to court records set forth in Copley Press and applied in
Pantos is consistent with the general statutory and common law principles
regarding the right of public access as applied in California before the adoption of
the CPRA. As discussed above, the right applied to the “ „ “written acts or records
of the acts” ‟ ” of government officials and entities and also to “other matters” that
were of sufficient interest to the public to warrant disclosure, subject to
countervailing public interests. (Coldwell v. Board of Public Works, supra, 187
Cal. at p. 518; accord, City Council v. Superior Court, supra, 204 Cal.App.2d at
p. 73; see also Mushet, supra, 35 Cal.App. at p. 638 [“The rules of the common
law will be applied to those cases which come within their reason and equity, even
when such cases seem to be outside the strict letter of such rules as they are
ordinarily stated.”].)
The State Bar claims support in Washington Legal Foundation v. United
States Sentencing Comm’n (D.C. Cir. 1996) 89 F.3d 897 (Washington Legal
Foundation) for its contention that the right of public access to judicial branch
records is limited to those that officially and accurately reflect the work of the
25
public agency. The court in Washington Legal Foundation applied the common
law right of access to a judicial branch entity other than a court — an advisory
committee to the United States Sentencing Commission. The petitioner in
Washington Legal Foundation, supra, 89 F.3d at page 899 sought “ „internal
documents and memoranda‟ ” relied upon by an advisory group in formulating its
final public recommendations to the United States Sentencing Commission. The
federal appellate court declared that under federal common law, a public record
was “a government document created and kept for the purpose of memorializing
or recording an official action, decision, statement, or other matter of legal
significance, broadly conceived.” (Id. at p. 905.) It concluded that the public has
a presumptive right of access to such records, subject to a balancing of public and
private interests. (Ibid.) The court viewed this definition as allowing adequate
public oversight of government agencies while avoiding “the necessity for judicial
application of the second-step balancing test to documents that are preliminary,
advisory, or . . . do not eventuate in any official action or decision being taken.”
(Ibid.)
The court clarified that this definition would include records of
governmental expenditures, records of real estate transactions, and a list of tax
abatements passed by a local government. (Washington Legal Foundation, supra,89 F.3d at p. 905.) In contrast, this definition “would not encompass the
preliminary materials upon which an official relied in making a decision or other
writings incidental to the decision itself — for example, the report of a blood test
provided in support of an application for a marriage license, the job application of
a would-be government employee, a government auditor‟s preliminary notes used
in the preparation of an official report, or a cover memorandum circulated with a
copy of an official report or study.” (Id. at pp. 905-906.) The court held that the
advisory committee records sought by the petitioner were not public records
26
because they were either “ „pre-decisional‟ ” or incidental to the official actions,
decisions, and statements of that commission. (Id. at p. 906.) Consequently, there
was no presumptive right of public access and the court was not required to
balance competing interests.
Washington Legal Foundation‟s categories of records that must be
disclosed and those that need not be disclosed are essentially the same two
categories recognized in Copley Press, and its holding is consistent with Copley
Press because the internal documents and memoranda of an advisory committee
would fall into the category of records that are not disclosable under Copley Press.
Unlike Copley Press, however, the court in Washington Legal Foundation did not
consider whether records might exist that did not clearly fall into either of these
categories — the “marginal” category discussed in Copley Press. It had no need
to do so, because the documents at issue clearly fell into the category that need not
be disclosed. To the extent Washington Legal implicitly rejected the existence of
such a category, and limited the right of public access to documents that
memorialize or record government actions, it is not consistent with the California
case law on the right of public access.
The State Bar suggests that if the common law right of access is not limited
in the manner it proposes, it would create a level of access to judicial branch
records that is equivalent to the level of access provided in the CPRA and thereby
effectively eliminate the CPRA‟s exemption for the judicial branch. The CPRA
applies to “any writing containing information relating to the conduct of the
public‟s business prepared, owned, used, or retained by any state or local agency
regardless of physical form or characteristics,” (Gov. Code, § 6252, subd. (e))
unless a specific statutory exemption applies (Gov. Code, § 6255, subd. (a); see
27
Gov. Code, §§ 6254 et seq., 6276 et seq.).8 “This definition is intended to cover
every conceivable kind of record that is involved in the governmental process . . . .
Only purely personal information unrelated to „the conduct of the public‟s
business‟ could be considered exempt from this definition . . . .” (Assem.
Statewide Information Policy Com., Final Rep. (Mar. 1970) 1 Assem. J. (1970
Reg. Sess.) appen. p. 9; accord, Commission on Peace Officer Standards &
Training v. Superior Court (2007) 42 Cal.4th 278, 288, fn. 3.)
The State Bar is correct that, unlike the CPRA, the common law does not
recognize a presumptive right of public access to every record in possession of a
government agency that is in any way related to the public‟s affairs. Copley Press,
supra, 6 Cal.App.4th at page 113, explicitly rejected the argument that “all
writings created within the court premises by court personnel in connection with
court business” were public records under California common law. It noted that if
that definition applied, “access to court documents would be virtually the same as
access to any other governmental documents,” as prescribed in the CPRA. (Ibid.;
see City Council v. Superior Court, supra, 204 Cal.App.2d at p. 73 [“the mere fact
that a writing is in the custody of a public agency does not make it a public
record”].)
We agree with the Copley Press court that the common law rule —
although not limited in the manner proposed by the State Bar — does differ from
8 The CPRA itself specifies many exceptions and cross-references other
statutes that exempt particular records from disclosure. (Gov. Code, §§ 6254-
6254.29, 6276.02-6276.48.) The CPRA also includes a catch-all exemption that
permits an agency to withhold a record if it can demonstrate that “on the facts of
the particular case the public interest served by not disclosing the record clearly
outweighs the public interest served by disclosure of the record.” (Gov. Code,
§ 6255, subd. (a).)
28
the CPRA. The CPRA establishes a presumptive right of access to any record
created or maintained by a public agency that relates in any way to the business of
the public agency, and the record must be disclosed unless a statutory exception is
shown. Under the common law, on the other hand, no such presumption exists.
Although the official records of government actions have historically been treated
as subject to public access and are readily categorized as “public records,” for
other matters or types of records a determination must be made concerning
whether the records at issue should be treated as public, taking into account the
public‟s interest in disclosure as well as the competing interests involved.
A report to a legislative committee considering a predecessor bill to the bill
that was later adopted as the CPRA identifies this difference between the way
public records previously were defined and the way they would be defined under
the proposed legislation. (Assem. Com. on Government Organization, Staff Rep.,
Cal.‟s Public Records Law and Proposed Revision, prepared for hearing Jan. 6 and
7, 1966 on Assem. Bill No. 3015 (1966 Reg. Sess.).) The pending bill, Assembly
Bill No. 3015 (1966 Reg. Sess.), contained a definition of public records similar to
the one contained in the current version of the CPRA. The report states that the
definition of public records under existing law is “broad and provides little
guidance in determining whether or not a specific document is a public record.
Generally, the courts have taken a restrictive view in applying these sections. [¶]
In contrast, AB 3015 begins by making every document a public record. The only
exceptions are those which are specifically recognized by the Legislature (either in
the exemptions outlined in the bill or by specific statute). The significance of this
change is twofold: (1) the burden for determining what is a public record is
shifted; (2) it limits the authority of administrators to withhold records unless there
is an expressed statutory right to do so.” (Id. at p. 6.)
29
In light of the differences between the common law approach to public
records and the CPRA‟s approach, we see no conflict between the CPRA‟s
exemption of judicial branch records and the recognition that a common law right
of access continues to exist in records of those public entities not governed by the
CPRA in which there is a legitimate public interest, if that interest is not
outweighed by other interests.
E. Application of common law principles to the admissions database
1. Public interest in the admissions database
Applying the principles discussed above, the admissions database falls into
the “marginal” third category of records identified in Copley Press. The
admissions database does not constitute an official record of the State Bar‟s
actions and has not historically been treated as a public record. On the other hand,
the admissions database does not fall into the category of preliminary, pre-
decisional materials whose disclosure could undermine the purposes for which
they were created and which could be misleading or inaccurate. The admissions
database could be characterized as “preliminary” in that it constitutes the rough
data upon which the bar‟s published statistical reports and other studies are based.
Unlike a rough draft or internal memo, however, we have no reason to believe that
it is inaccurate or misleading, or that its disclosure would interfere with the State
Bar‟s use of it for its own purposes.
The threshold consideration in determining whether these records are
subject to public disclosure is the public interest that would be served by
disclosure. In making that determination, the particular motive of the party
seeking the information is not the relevant interest. (Connell v. Superior Court
1997) 56 Cal.App.4th 601, 616 [applying exemption to CPRA for cases in which
public interest in disclosure is outweighed by other interests]; see also Department
30
of Defense v. FLRA (1994) 510 U.S. 487, 495-496 [applying exemption to
Freedom of Information Act applicable to cases in which public interest in
disclosure is outweighed by other interests].) Rather, we focus on “whether
disclosure would contribute significantly to public understanding of government
activities.” (City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1018;
accord, Department of Defense v. Federal Labor Relations Authority, supra, at
pp. 495-496.) Thus, although plaintiff Sander‟s motive in seeking the information
is to facilitate his research regarding law school admissions practices, we focus on
the interest of the general public in the activities of the State Bar.
The public does have a legitimate interest in the activities of the State Bar
in administering the bar exam and the admissions process. In particular, it seems
beyond dispute that the public has a legitimate interest in whether different groups
of applicants, based on race, sex or ethnicity, perform differently on the bar
examination and whether any disparities in performance are the result of the
admissions process or of other factors. Indeed, the State Bar uses the database to
prepare a statistical analysis of the bar exam that reports the bar passage rates for
various categories of applicants. Public access to the admissions database used by
the State Bar to evaluate its admissions process would allow the public to
independently ascertain and evaluate that process. Therefore, the public‟s interest
in the information in the database would contribute to the public‟s understanding
of the State Bar‟s admissions activities, and is sufficient to warrant further
consideration of whether any countervailing consideration weighs against public
access.
2. Promise of confidentiality
The State Bar asserts that, notwithstanding any public interest in the
admissions database, it is not subject to public disclosure because the information
31
contained in it was obtained from applicants under a promise that it would remain
confidential. Under longstanding common law and statutory principles,
information obtained through a promise of confidentiality is not subject to the
right of public access when the public interest would be furthered by maintaining
confidentiality. (See Runyon v. Board etc. of Cal., supra, 26 Cal.App.2d at p. 185
[“in order to impartially and intelligently discharge the functions of the state board
of prison terms and paroles it is essential to secure all possible information bearing
upon applicants for parole; and necessarily much of the information thus obtained
can be had only upon the understanding that the persons furnishing the same will
be protected and that the information will be treated as confidential”]; Chronicle
Pub. Co. v. Superior Court, supra, 54 Cal.2d 548 [complaints to State Bar not
resulting in disciplinary action were privileged, where confidentiality furthered
State Bar‟s interest in encouraging citizens to provide information and attorneys‟
interests in avoiding publication of unfounded complaints weighed against
disclosure]; Pantos, supra, 151 Cal.App.3d at pp. 264-265 [access to the
questionnaires used by a jury commissioner to determine the qualifications of
potential jurors was denied, in part, because jurors were promised that their
responses would be confidential].) This principle is currently reflected in
Evidence Code section 1040, which provides a privilege to a public entity to
refuse to disclose information acquired in confidence if “there is a necessity for
preserving the confidentiality of the information that outweighs the necessity for
disclosure.” (Evid. Code, § 1040, subd. (b)(2).)
As we have alluded to earlier, however, this principle has not prevented
public access to otherwise confidential, private information in the possession of a
public entity that is not linked to the individual to which it pertains. (See, e.g.,
City & County of S.F. v. Superior Court (1951) 38 Cal.2d 156 [names of private
employers who provided specific wage information to city civil service
32
commission for purpose of determining prevailing wage rates were confidential,
where information could not be obtained without promise of confidentiality and
lists of wage rates obtained from employers was available to public in form that
did not identify which employer submitted which wage list]; Franchise Tax Board
v. Superior Court (1950) 36 Cal.2d 538, 543 [banks seeking right to inspect tax
returns of nonfinancial corporations considered by Franchise Tax Board in fixing
the tax rate for financial corporations were supplied with “every item of
information requested by them . . . with the exception of the individual taxpayers‟
identity”]; see also Zamudio v. Superior Court (1998) 64 Cal.App.4th 24[requiring release of juror questionnaires with personal identifying information
redacted].) Because plaintiffs do not seek the information in a manner that would
reveal the identities of individual applicants, the State Bar‟s promises of
confidentiality do not necessarily preclude public access to the database.
Similarly, we cannot hold as a matter of law that bar applicants‟
constitutional rights of privacy preclude disclosure of the information in the
database even in a de-identified form. (See Cal. Const., art. I, § 1.) The State Bar
cites this court‟s statement in White v. Davis (1975) 13 Cal.3d 757, 775, that the
constitutional right to privacy is aimed at, among other things, “the improper use
of information properly obtained for a specific purpose, for example, the use of it
for another purpose or the disclosure of it to some third party.” The cases cited by
the State Bar that apply this principle, however, involve disclosure of information
about a named individual. (See Porten v. University of San Francisco (1976) 64
Cal.App.3d 825, 830 [complaint alleging that a university disclosed grades the
plaintiff had earned at another university despite assurances that the grades would
be used only for purposes of evaluating his application for admission stated a
claim for violation of the right of privacy]; Urbaniak v. Newton (1991) 226
Cal.App.3d 1128, 1138 [complaint alleging that doctor disclosed plaintiff‟s HIV
33
status stated cause of action for invasion of privacy].) The State Bar‟s argument
that disclosure of the requested data would violate applicants‟ privacy even if it
cannot be connected to them as individuals is not supported by authority.
The parties disagree concerning whether the information at issue can be
provided in a form that does not breach the State Bar‟s promises of confidentiality.
The State Bar contends that “the commonly held assumption that any data can be
successfully [de-identified] as suggested by [plaintiffs], so that it can be made
available to the public without risk that individual people‟s information be
revealed, has proved to be false.” Plaintiffs counter that “[d]isclosure of de-
identified information regarding individuals obtained from government databases
is commonplace. . . . The routine release of such data refutes the claim that such
information cannot be disclosed without undue risk of „re-identification‟ of those
individuals.” This issue involves disputed questions of fact that we are not
currently in a position to decide. By the parties‟ stipulation, litigation of this issue
was reserved for the second phase of trial and may be decided in the trial court
upon remand.
F. Form in Which the Data is Kept
The State Bar contends, as it did in the trial court, that in order to comply
with Plaintiffs‟ request without infringing bar applicants‟ privacy interests it
would be required not only to redact personal information but also to create new
categories of information by “clustering” categories of data — a measure proposed
by plaintiffs to make it more difficult to re-identify individuals. The State Bar
concedes that if the admissions database is subject to the right of access it may be
required to redact applicants‟ names, but contends that making the changes to the
admissions database necessary to protect applicants‟ privacy would constitute the
creation of a “new” record and that creation of a new record is not required. (See,
34
e.g., NLRB v. Sears, Roebuck & Co. (1975) 421 U.S. 132, 162 [federal Freedom of
Information Act does not require agency to create documents; it requires only
“disclosure of certain documents which the law requires the agency to prepare or
which the agency has decided for its own reasons to create”]; Center for Public
Integrity v. Federal Communications Comm’n (D.D.C. 2007) 505 F.Supp.2d 106,
114 [producing data in the form requested would amount to creation of a new
record, which is not required by Freedom of Information Act].)
We agree with the trial court that in the context of electronic records, and in
particular electronic databases, to resolve this issue would require consideration of
the complexity of the tasks required to produce the data in the form requested;
consequently, it would be premature for us to attempt to resolve this issue. The
parties have not yet litigated whether and how applicants‟ privacy interests could
be protected if public access to the database were permitted. Therefore, we do not
yet know what modifications would be necessary to protect these countervailing
interests. Furthermore, by stipulation, the parties reserved for the second phase of
trial the question whether disclosure would impose an undue burden on the State
Bar.
Plaintiffs have made clear that they would accept the data in its current
form, without any modification other than the redaction of applicants‟ names.
They have proposed additional modifications to the data, including the
“clustering” of data, in order to satisfy the State Bar‟s concerns about bar
applicants‟ privacy. In light of our holding recognizing the public‟s interest in the
admissions database, the State Bar may choose to implement these proposals or
may propose other measures that will satisfy the public‟s right of access while
protecting applicants‟ privacy. If not, it will be necessary for the trial court to
resolve whether and how a record that is responsive to plaintiffs‟ requests may be
35
produced without identifying individual applicants or otherwise unduly burdening
any legitimate competing interests.
IV. CONCLUSION
The judgment of the Court of Appeal is affirmed. That court is directed to
remand this case to the trial court for further proceedings consistent with this
opinion.
CANTIL-SAKAUYE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
36
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Sander v. State Bar of California
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 196 Cal.App.4th 614Rehearing Granted
__________________________________________________________________________________
Opinion No. S194951
Date Filed: December 19, 2013
__________________________________________________________________________________
Court: Superior
County: San Francisco
Judge: Curtis E. A. Karnow
__________________________________________________________________________________
Counsel:
Sheppard, Mullin, Richter & Hampton, James M. Chadwick, Evgenia N. Fkiaras, David E. Snyder and
Guylyn R. Cummins for Plaintiff and Appellant California First Amendment Coalition.
Jane Roberta Yakowitz; Bostwick & Jassy, Gary L. Bostwick, Jean-Paul Jassy and Kevin L. Vick for
Plaintiffs and Appellants Richard Sander and Joe Hicks.
Davis Wright Tremaine, Mary Duffy Carolan and John Rory Eastburg for Brentwood Press and
Publishing Co., California Newspapers Partnership, Calistoga Tribune, Calaveras Enterprise, Champion
Newspapers, Dailey Republic, Embarcadero Media Inc., Feather Publishing Co., Inc., Freedom
Communications, Inc., Los Angeles Times Communications LLC, Malibu Times Inc., Marinscope
Community Newspapers, Mission Viejo News, Inc., Random Lengths News, Sacramento Valley
Mirror, Santa Maria Times, The Ark Newspaper, The Bakersfield Californian, The McClatchy
Company, The Mountain Enterprise, The North County Times, The Press-Enterprise, The Viking,
Valleywide Newspapers, Ventura County Reporter, ALM Media, LLC, The Associated Press, Atlantic
Media, Inc., Bloomberg News, Cox Media Group, Inc., Dailey News, L.P., E.W. Scripps Company,
Forbes, Inc., Gannett Co., Inc., Hearst Corporation, NBC Universal Media, LLC, Reuters America
LLC, Stephens Media LLC, The Newsweek/Dailey Beast Company LLC, The New York Times
Company, The Washington Post, American Society of News Editors, Association of Alternative
Newsmedia, Californians Aware, The California Newspaper Publishers Association, National Freedom
of Information Coalition, The National Press Photographers Association, The Radio Television Digital
New Association and The Reporters Committee for Freedom of the Press as Amici Curiae on behalf of
Plaintiffs and Appellants.
Law Office of Judy Alexander and Judy Alexander for Vikram Amar, Jane Roberta Yakowitz and Mark
Grady as Amici Curiae on behalf of Plaintiffs and Appellants.
Sharon L. Browne, Meriem L. Hubbard and Joshua P. Thompson for Pacific Legal Foundation as Amicus
Curiae on behalf of Plaintiffs and Appellants.
Page 2 – S194951 – counsel continued
Counsel:
Center for Constitutional Jurisprudence, John Eastman, Anthony T. Caso, Karen J. Lugo and David
Llewellyn for Gerald Reynolds, Todd Gaziano, Gail Heriot, Peter Kirsanow and Ashley Taylor, Jr., as
Amici Curiae on behalf of Plaintiffs and Appellants.
Joshua Koltun for Doug Williams as Amicus Curiae on behalf of Plaintiffs and Appellants.
Kerr & Wagstaffe, James M. Wagstaffe, Michael John Von Loewenfeldt; Starr Babcock, Lawrence C. Yee
and Rachel S. Grunberg for Defendants and Respondents.
Snell & Wilmer, Mary-Christine Sungaila and Harsh P. Parikh for Multicultural Bar Alliance as Amicus
Curiae on behalf of Defendants and Respondents.
Reed Smith and Dennis Peter Maio for The Bar Association of San Francisco as Amicus Curiae on behalf
of Defendants and Respondents.
Eva Paterson, Allison S. Elgart and Fabián Rentería for Equal Justice Society as Amicus Curiae on behalf
of Defendants and Respondents.
Perkins Coie, Vilma R. Palma-Solana, Sunita Bali; Lim, Ruger & Kim, Bruce Iwasaki and Norma Nava for
People of Color, Inc., as Amicus Curiae on behalf of Defendants and Respondents.
Bingham McCutchen, William F. Abrams, Patrick T. Weston and Audrey Lo for Dwight Aarons, George
Acero, Daniel James Alexander II, Charlene Bellinger Honig, Nikki Brown, Peter L. Carr IV, Claudia J.
Castillo, Eugene Clark-Herrera, Francisco Cortes, Kendra Fox Davis, Lisa Gilford, Marc-Tizoc Gonzalez,
Rebecca Hall, Sara Jackson, Rasheda Kilpatrick, Parissh A. Knox, Andrea Luquetta, Xochitl Marquez,
Letitia D. Moore, Shirin Soleman, Angela Crystelle Thomas-Taylor, Anthony J. Tolbert, Erika K. Woods
and Doe 1 as Amici Curiae on behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
James M. Chadwick
Sheppard, Mullin, Richter & Hampton
Four Embarcadero Center, 17th Floor
San Francisco, CA 94111-4109
(415) 434-9100
Jean-Paul Jassy
Bostwick & Jassy
12400 Wilshire Boulevard, Suite 400
Los Angeles, CA 90025
(310) 979-6059
James M. Wagstaffe
Kerr & Wagstaffe
100 Spear Street, 18th Floor
San Francisco, CA 94105
(415) 371-8500