First, there’s no question that self-reported data can fall within the ambit of public records – there are examples galore of this, from licensing data to real estate records. Secondly, government agencies routinely have to do some special work to compile information in response to records requests, subject to reasonableness and compensation by the requestor. I always look askance at the argument that a request is for “new” records or a “compilation of records”, as there is a long and unfortunate history of government agencies using this excuse to avoid transparency.

Finally, when it comes to privacy, the usual formulation is to have an expansive concept of public records and then provide specific exceptions for categories of information deemed sensitive. The records sought by Sander may well belong within such a category; what’s galling to those concerned with open government is the bar’s advocacy of a tepid and limited conception of public records in the first instance.

The sensitivity around this issue is not political – it’s related to the privacy of the bar exam test takers.

In its response to Sander/CFAC, the State Bar said this: “Unable to support its position with any case law, Petitioners rely heavily on the generalities set forth in Proposition 59 (codified at Cal. Const., art. I, § 3) and the ad hominem insistence that the State Bar ‘is not above the law.’ Of course the State Bar is not ‘above the law’ and Proposition 59 applies to ‘all branches of government.’ How it applies is the critical question.

“Setting aside the relevant case law for a moment, the new compilation of data requested by Petitioners simply does not fall within the plain language or intent of Proposition 59. The requested database is not a ‘writing of a public official,’ and Petitioners make no attempt to explain why it is.

“Petitioners incorrectly contend that this point is conceded by the State Bar. (Pet. p. 38.) No public official wrote the raw data at issue it was reported by applicants, the LSAC and the law schools or (in the case of Bar Exam scores) generated by the testing process.

“Indeed, the demanded compilation of data does not presently exist. The raw data itself does not reflect any work by any official of the State Bar (except insofar as any individual’s test score could be considered the ‘work’ of a State Bar grader).

“Aside from Petitioners’ own insistence, Petitioners provide no explanation for why Proposition 59 would grant them the right to demand that the State Bar (or any state agency for that matter) comb through its raw 30 records to create a new, custom statistical report for independent and private research use.”

The information provided to the Bar by exam applicants cannot be disclosed by the Bar, irrespective of its relevance in a public policy debate, because state and federal law precludes its disclosure absent consent.

Federal law protects the privacy of these educational records as well. One’s private records do not become public records, accessible to anyone, simply because a person applies to take a state exam and becomes part of a database.

It should be disturbing that Prof. Sander’s research conclusions largely remain uncorroborated. Since Sander’s article on the mismatch theory was published almost four years ago, “I have been unable to find a published article or working paper in an academic venue that defends Sander’s work, other than his own,” wrote Washington University School of Law associate professor Katherine Y. Barnes.

That Sander has a right to advocate his position is undeniable. What he does not have is a right to acquire personal and confidential information of bar exam takers when the law mandates otherwise.

Read a commentary by Anthony Solana, Jr., president and chairperson of For People of Color, Inc., and Sara Jackson, the Equal Justice Society Judge Constance Baker Motley Civil Rights Fellow, here:
http://www.equaljusticesociety.org/keith/2008/09/privacy-not-political-correctness.html