In a long-running test case about government transparency and public access to government data, the First Amendment Coalition recently won a big victory. The California Supreme Court sustained FAC’s claim that the State Bar—an arm of the judiciary that regulates lawyers—must disclose extensive data on applicants for admission to the Bar (minus their names and other identifying information, as we had urged).
Although these data are not covered by California’s open records law, the Court held they are still subject to a “common law” right of access—a right that extends to government records whose “disclosure would contribute significantly to public understanding of government activities.”
The Bar data, to be used in academic research about affirmative action policies in higher education, meets that test, the Court said, because “the public has a legitimate interest” in disparities in Bar exam results and examining the causes of those disparities.
The Court also held that government data can’t be withheld on privacy grounds as long as the data are “de-identified” by stripping out identifiers, controlling data cell sizes, and other steps that have become standard in professional research. The Court’s reasoning: There is no conflict between privacy rights and public access rights when the disclosed data can’t be linked to identifiable individuals.
The importance of Sander & FAC v. State Bar can’t be overstated:
- By reviving, and reconceptualizing, a common law right of access, the decision creates a new access tool to be used when the usual tools–FOIA laws, constitutional claims, etc.–aren’t available.
- The Court’s analysis of the privacy issue should go a long way to removing uncertainty about the legal status of government data in many areas, especially when derived from private individuals.
This victory comes after a long battle with the State Bar—a battle that may drag on, unfortunately, if the Bar chooses to contest the sufficiency of the procedures we have proposed for de-identifying the data.
FAC’s co-plaintiff in this case is UCLA law professor Richard Sander, who asked FAC for help when the Bar turned down his requests for data. Our terrific lawyers are James Chadwick and his colleagues at the Sheppard Mullin law firm, and Jean-Paul Jassy of Jassy Vick in LA.
—-PETER SCHEER