Sander v. St. Bar of CA 6/10/11 CA1/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A128647

Case Date: 08/26/2011

Preview:Filed 6/10/11

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

RICHARD SANDER et al., Plaintiffs and Appellants, v. STATE BAR OF CALIFORNIA et al., Defendants and Respondents. (City & County of San Francisco Super. Ct. No. CPF08508880) A128647

Appellants Richard Sander, Joe Hicks and the California First Amendment Coalition seek access to admissions records from the State Bar of California (the Bar), subject to conditions designed to ensure the privacy of bar applicants, in order to conduct academic research on discrepancies in bar passage rates among racial and ethnic groups. After the Bar rejected Sanders request, appellants filed this action for a writ of mandate to compel the Bar to release the information. The trial court concluded that the common law right of access to public documents is no broader than the right of access to adjudicatory court records based in the First Amendment to the United States Constitution and, therefore, does not authorize public access to the Bars records sought by appellants. The court further found article I, section 3(b) of the California Constitution inapplicable to the records request. We hold this analysis was erroneous. The common law right of access to public documents is broader than the First Amendment right of access to adjudicatory court documents. We therefore reverse the judgment and remand the case to the superior court to determine whether the Bar must produce the requested information after balancing the

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applicants interest in confidentiality and the burden this request imposes on the Bar against the strong public policy favoring disclosure. The trial court is best suited to craft any qualifications to an order for production that can accommodate these concerns if possible. BACKGROUND The Bar collects and maintains records containing information regarding individuals who apply to take the bar exam. In addition to bar exam results and scores, the information pertaining to each individual often includes the applicants undergraduate and law school records, standardized test scores, ethnic background, and gender. Sander, an economist and professor of law at the University of California Los Angeles, conducts research on the scale and effects of admissions preferences in higher education. Sander approached the Bar to explore possible collaboration on research regarding a large and persistent gap in bar exam passage rates among racial and ethnic groups. The Bar rejected his proposal based, in part, on concerns about applicants interests in the confidentiality of their personal information. Sander then made a formal request for the records he needed to conduct his study. The Bar rejected his request, again citing privacy concerns, and subsequently rejected a revised request. The California First Amendment Coalition, a nonprofit corporation primarily concerned with open government issues, filed a separate request for the same data. That request was also rejected. Appellants petitioned the San Francisco Superior Court for a writ of mandate to compel the Bar to disclose the requested records pursuant to the common law right of access to public records and article I, section 3(b) of the California Constitution (enacted into law in 2004 by the passage of Proposition 59).1 The parties stipulated to bifurcate the proceedings into two phases. Phase One addressed whether the Bar has a legal duty
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Hereinafter "Proposition 59." 2

to provide the requested records and encompassed four sub-issues: "(a) Whether there is a public right of access to the requested records; [

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