By Anne Lowe

News organizations from across California filed a friend of the court brief Wednesday in support of the First Amendment Coalition’s suit for access to records of the State Bar of California, seeking Bar examination results for a study concerning the effects of affirmative action in law school admissions.  The matter is now on appeal.

Organizations represented in the brief are the Los Angeles Times, San Jose Mercury News, Oakland Tribune, Contra Costa Times, and the San Francisco Chronicle, as well as Californians Aware, among others.

As argued in the brief's introduction,

This appeal is about access to public records held by a California public corporation. It is about the application of the common law and Proposition 59, the Constitutional Sunshine Amendment overwhelmingly approved by voters in 2004, to that corporation as a legal entity within the judicial branch of government.

The underlying litigation also concerns important issues specific to the particular request at issue, including whether privacy interests are sufficient to rebut any presumption of public access to the requested information.

But though the State Bar spends page upon page detailing the request at issue and putative privacy issues involved therein, the issue before the Court at this stage of the litigation is a narrow one—whether the State Bar, unlike every other public entity in California, is uniquely and wholly exempt from the common-law and state constitutional presumption of access to public documents. Based on fundamental errors, the Superior Court ruled that it was.

First, it is simply not the case, as the trial court ruled, that the common law right of access to government documents has “in effect been absorbed” by the First Amendment access right. Courts across the country, including the United States Supreme Court, have made clear that the two rights are not coextensive. While the First Amendment provides a strong presumption of access to a limited set of adjudicatory documents as to which “history and logic” both support openness, the common law provides a more qualified but broader presumption of public access to all “public records.” Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978).

While this right of access generally is analyzed in the context of court records, Nixon made clear that the common-law right of access applies to a broad range of documents from all branches of government. Indeed, the cases it cited for the “general right to inspect and copy public records and documents” were not adjudicatory records, but education, tax, finance, and land records. To be sure, the common-law presumption is sometimes overcome by an interest in secrecy, or superseded by statute. But this does not mean it does not exist, or that it has been wholly subsumed by the First Amendment access right.

Second, the Superior Court erred when it ruled that, despite its clear language and legislative history, Proposition 59 merely constitutionalized prior law and this excluded judicial administrative records. Even if this were a correct statement of prior law – and it is not – the plain language of Proposition 59 creates a broad new access right to all “public bodies” so that the public can access information “concerning the people’s business.” . . . It is not limited to the executive branch, as the State Bar now concedes, and it does not exclude administrative records of the judicial branch of government.

That Proposition 59 applies broadly is supported by the ballot measure summary before the voters, which says just that. It is also confirmed by the California Rules of Court, which were amended in the wake of Proposition 59 to “clarify” the right of access to some judicial administrative documents. And it is confirmed by subsequent courts, which have weighed Proposition 59 access rights even where it is clear that there was no access right under prior law.

It may well be that when the trial court reaches the issue, it finds that the data requested must be withheld in part of in total because privacy concerns trump the public interest in openness—an issue not properly before (this) Court. Whether or not this data is withheld, it cannot be the case that the California State Bar is unique among all public agencies of California in being wholly outside the scope of the public right of access under the common law and the California Constitution.