Kerry Goff Aug. 28, 2016, 7:29pm

SAN FRANCISCO – In an August article for the California Bar Journal, Laura Ernde reported on the Sander v. State Bar of California case that will have closing briefs in September, heard by Judge Mary E. Wiss, to fully determine the necessary parameters needed to protect bar applicants’ privacy with regards to research publications.

“The lawsuit was brought by UCLA law professor Richard Sander and others who seek 36 years of detailed information about bar applicants to conduct research on law school admissions practices,” the article said.

Sander is seeking information on race, LSAT and bar exam scores and law school grade-point average.

The article explained that researchers want the data to be released in a “de-identified” form, but the California State Bar opposes the release of the data, arguing that it violates promises it made to law students regarding privacy and limited use of their records and personal information.

“In addition, the bar argues that the requesters’ proposal does not render the data truly anonymous and exposes individuals to a high risk of re-identification,” the article said. “No other state bar has released this kind of data.”

Ernde reported that back in 2007, the State Bar refused to release research data because it was concerned about how it violated applicant privacy. In response, Sander sued then as well, but lost because the court explained that applicant records were not public records.

“The privacy rights of bar members and people of color in the legal profession and law students who may be unfairly singled out are of paramount importance to the State Bar,” State Bar Executive Director Elizabeth Rindskopf Parker said to Ernde.

When the State Bar became subject to the California Public Records Act in January, Sander readmitted his complaint to publish the 36 years of compiled research.

But with a new provision added to the State Bar Act providing that State Bar admissions records are confidential and shall not be released, it creates a new conflict between access to public records and bar applicant privacy.

The case went trial last in July before Judge Wiss with a focus on two issues: whether the data may identify an individual applicant and whether the modifications of the data suggested by researchers require the creation of a new document beyond the scope of the Public Records Act.

“The requesters have offered alternative protocols they say will allow the data to be released without identifying individuals,” the article said. “Their expert, data scientist Luk Arbuckle, testified that the various protocols provided a reasonable level of protection against identification. But he admitted that no de-identification of the data could wholly eliminate the risk of re-identification.”

Ernde reported that a number of individuals and groups are concerned that releasing applicant information could stigmatize them, and the usefulness of the information is not worth the harm it could cause to individuals and the profession.

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