Sander v. State Bar – Court of Appeal Upholds State Bar’s Decision to Protect Privacy Rights of Attorneys

In a case tried and argued on appeal by Kerr & Wagstaffe LLP, the Court of Appeal for the First District has issued a decision that protects the privacy of hundreds of thousands of California lawyers and confirms that California public agencies are not required to create new records or data in response to a request under the Public Records Act. Since 2008, the Plaintiffs in the lawsuit have sought unprecedented access to the State Bar’s data on applicants for the California Bar Exam from 1972 to 2008, including race, law school GPA, Law School Admission Test score, whether an applicant passed the Bar Exam, and raw and scaled scores on the Bar Exam. The Plaintiffs proposed that these records be “anonymized” by re-coding the data or calculating new data to substitute for the existing data. The State Bar has consistently fought these requests and defended the privacy interests of its applicants, who provided the State Bar their private information with the understanding it would be kept confidential.

In a unanimous published decision, the Court of Appeal affirmed that the State Bar had no obligation to comply with Plaintiffs’ demands. “It is well established under California law and guiding federal precedent … that, while the CPRA requires public agencies to provide access to their existing records, it does not require them to create new records to satisfy a request.” A government agency “cannot be required to create a new record by changing the substantive content of an existing record or replacing existing data with new data.”

The case was argued on appeal by Kerr & Wagstaffe partner Michael von Loewenfeldt, a certified specialist in Appellate Law who heads the firm’s appellate practice.  The opinion can be found here.