Richard SanderIn a recent decision by the California Court of Appeal, a member of the public sought access to demographic data to study California Bar examination passage rates among members of different racial and ethnic groups. Plaintiff Richard Sander is an economist and professor of law at UCLA, though the identical data was requested by the First Amendment Coalition. The trial court rejected Sander’s request for the data.

The unanimous opinion of the First District Court of Appeal in Sander v. State Bar of California held that the trial court erred when it refused to allow Sander to view the demographic data of the State Bar.  The Court of Appeal disagreed with the State Bar’s argument that it should be subject to the less permissive rules that govern court documents. In finding that the “common law right of access to public documents is broader than the First Amendment right of access to adjudicatory court documents,” the court remanded the case to the trial judge to determine whether the State Bar must produce the requested redacted information “after balancing the applicants’ interest in confidentiality and the burden this request imposes on the Bar against the strong public policy favoring disclosure.” Indeed, Sander had attempted to address these privacy concerns by requesting redacted information.

Sander has been seeking this data for years to help establish his theory about law school admissions known as the “mismatch effect,” which suggests that affirmative action may be hindering the success of the very students it seeks to help. As he explained in the L.A. Times:

Data from across the country suggest to some researchers that when law students attend schools where their credentials (including LSAT scores and college grades) are much lower than the median at the school, they actually learn less, are less likely to graduate and are nearly twice as likely to fail the bar exam than they would have been had they gone to less elite schools.

This skirmish between the professor and the State Bar has brought out numerous heavy hitters in the California legal community, including fellow UCLA Law School Professor Eugine Volokh of the Volokh Conspiracy, one of the most widely read legal blogs in the nation. Volokh referred to this as “something of a victory” for the people of the State of California who seek access to such documents of their government. In addition, both the First Amendment Coalition and Pacific Legal Foundation issued press releases applauding the court’s decision to open access to government records long held secret.

Why public agencies don’t follow the constitutional and statutory mandate to narrowly construe exemptions to disclosure of public records, with appropriate redactions, remains a mystery.  Perhaps if there were some potential personal liability for a public official’s wrongful withholding of public records, fewer suits would be necessary to protect the public’s right to know.

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