A&A: Are State Bar records accessible under the public records act?

Q: Are state bar records–specifically the budget–public documents?

A: The State Bar of California is not subject to the Public Records Act. Bus. & Prof. Code § 6100 (“The State Bar of California is a public corporation[, and n]o law of this state restricting, or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies, or classes thereof, … shall be applicable to the State Bar, unless the Legislature expressly so declares.); Chronicle Pub’g Co. v. Superior Court, 54 Cal. 2d 548, 573 (1960). Nevertheless, the State Bar’s budget may be subject to disclosure under one or more of a few different theories.

First, budget-related records may be subject to disclosure under the common law right of access to public records, especially as read in conjunction with article I, section 3, subdivision (b) of the California Constitution.

The Court of Appeal recently held that the common law presumption of access to public information is not limited to adjudicatory records and may encompass the State Bar’s admissions records. Sander v. State Bar of California, 196 Cal. App. 4th 614 (2011).

But the California Supreme Court granted review of that decision, including the issue of “what ground, if any, exists for finding that the information sought by plaintiffs is information that is subject to public disclosure.” Sander v. State Bar of California, 2011 Cal. LEXIS 9272 (Sup. Ct. Aug. 25, 2011).

Accordingly, we may soon know more about whether Californians can rely on the common law right of access to public information for obtaining records from the State Bar.

Second, the State Bar is required to submit budget information to the Legislature each year, as follows:

The State Bar annually shall submit its proposed baseline budget for the following fiscal year to the Legislature by November 15, and its proposed final budget by February 15, so that the budget can be reviewed and approved in conjunction with any bill that would authorize the imposition of membership dues.

Each proposed budget shall include the estimated revenues, expenditures, and staffing levels for all of the programs and funds administered by the State Bar. Any bill that authorizes the imposition of membership dues shall be a fiscal bill and shall be referred to the appropriate fiscal committees; provided, however, that the bill may be approved by a majority vote.

The State Bar shall submit the budget documents in a form comparable to the documents prepared by state departments for inclusion in the Governor’s Budget and the salaries and wages supplement. In addition, the bar shall provide supplementary schedules detailing operating expenses and equipment, all revenue sources, any reimbursements or interfund transfers, fund balances, and other related supporting documentation. The bar shall submit budget change proposals with its final budget, explaining the need for any differences between the current and proposed budgets.

Bus. & Prof. Code § 6140.1.

The budget may therefore be a “legislative record” subject to disclosure under the Legislative Open Records Act. Gov’t Code 9072 (“‘Legislative records’ means any writing prepared on or after December 2, 1974, which contains information relating to the conduct of the public’s business prepared, owned, used, or retained by the Legislature.”).

This may be a particularly auspicious time to rely on the LORA, given the very recent Sacramento Superior Court decision ordering the Assembly to produce certain records related to budgets and expenditures. Los Angeles Times v. California Legislature, Case No. 34-2011-80000929 (Sacto. Super. Ct. Dec. 2, 2011).

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.