State Bar’s race records can remain confidential

The California Supreme Court is allowing the State Bar to keep confidential its records of the race and ethnicity of the many thousands of aspiring lawyers who take the bar exam, records that a law professor wants to use in his opposition to affirmative action.

UCLA Law Professor Richard Sander, who also sought disclosure of bar applicants’ law schools and test scores, gained support from news organizations, including the California News Publishers Association, whose members include The Chronicle. The media groups argued that release of the records could shed light on the State Bar’s practices without endangering the applicants’ privacy.

The state Supreme Court ruled in Sander’s favor in 2013, saying the bar must make the records public if the applicants’ names could be kept confidential.

But a San Francisco judge and a state appeals court then ruled that disclosure of the records could breach applicants’ privacy and would illegally require the bar to create new types of records. On Wednesday, the state’s high court unanimously denied review of the case.

Jean-Paul Jassy, a lawyer for Sander, said the professor is disappointed but could still ask the court, which oversees the State Bar, to tell bar officials to conduct studies that shed light on the exam and the process for admitting new lawyers. David Snyder, executive director of the First Amendment Coalition, a media group, expressed disappointment as well.

“We think the public is entitled to see the records of this powerful institution, which is one of the most secretive in the state,” Snyder said. “The public would be able to understand whether the State Bar is meeting its objective of protecting the public by admitting only qualified lawyers.”

James Wagstaffe, the bar’s lawyer in the case, was not immediately available for comment. Wagstaffe has said the bar might stop asking test-takers to disclose their race or ethnicity if it were required to reveal that information to Sander.

Sander filed his suit in 2008, seeking information on everyone who had taken the bar exam since 1972. He contends race preferences in admission hurt minorities by placing them in law schools where they can’t compete effectively.

California voters outlawed race-based affirmative action at state universities in 1996, but it remains legal at private universities.

In a November 2016 ruling against Sander, Superior Court Judge Mary Wiss said that even though he did not seek records of bar applicants’ names, researchers could use the data to identify individuals, particularly minorities, and damage their reputations.

The First District Court of Appeal in San Francisco agreed with Wiss this August and said the law did not require disclosure for a second reason: State law requires public agencies “to provide access to their existing records” but “does not require them to create new records to satisfy a request” for disclosure, the court said. It said the data sought by Sander and the news organizations would require new types of records.

In a legal filing supporting Sander’s appeal, the news organizations said the appeals court had wrongly characterized “the mere manipulation of data” as the creation of a new record, a standard that “would potentially gut public access to government data.”

The case is Sander vs. Superior Court, S251671.