Calif. court recognizes common law access right

A California appellate court ruled Friday that the common law rule of presumptive access to public information extends to the State Bar of California’s records on bar admissions. The ruling opens the possibility that UCLA law professor Richard Sander could gain access to state bar records to compare performance results among different racial and ethnic groups on the California bar exam.

The California Court of Appeal (1st Dist.) in San Francisco ruled, in Sander v. State Bar of California, that this presumptive common law right of access is subject to balancing against the private interests implicated by disclosure, and remanded the case to the trial court to perform the balancing test.

“Most people in California and elsewhere have thought of [the common law right-of-access] as sort of a legal relic in some ways, superseded by freedom of information statutes at the state and federal level,” said Peter Scheer, executive director of the California-based First Amendment Coalition. “But this decision clarifies that it still has some real impact. . . . Many states are trying to shrink access either by amending their statutes or regulations, and what this alternative theory holds out is the possibility that those efforts cannot succeed in the end because the common law remains an alternate source of judicial power in this area.”

The State Bar of California, which is a public corporation under the control of the Legislature, serves as the administrative arm of the state Supreme Court and administers the state’s bar exam. The corporation is “seriously considering” petitioning the California Supreme Court for review in this case, according to Attorney Jim Wagstaffe, who represented the state bar.

The appellate court overturned the trial court’s ruling that the common law right of access is no broader than the established First Amendment-based right of access to official documents reflecting the work of the court, and, thus, the state bar’s admission records were exempt from public disclosure. The U.S. Supreme Court has generally limited this First Amendment-based right of access to court records to adjudicatory records, such as court opinions, rather than documents, which include preliminary drafts, personal notes and rough records.

The state bar argued that, because it is an arm of the judicial branch and its records are not adjudicatory, it should be exempt from disclosing them. Wagstaffe said the bar has long been recognized as an arm of the judiciary.

The court disagreed. Basing a right of access to these records on whether they are adjudicatory “would seemingly exempt all records of any administrative arm of the judicial branch of government from the longstanding common law presumption of access to public records without the justification that exists for the particular protections afforded to non-adjudicative records produced by the courts,” the court said.

The Reporters Committee for Freedom of the Press joined a friend-of-the-court brief in the case with other media organizations, such as the Los Angeles Times and the San Francisco Chronicle.