Sander v. State Bar of Cal. ( 2013 )


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  • Filed 12/19/13
    
    
    
    
          IN THE SUPREME COURT OF CALIFORNIA
    
    
    RICHARD SANDER et al.,                 )
                                           )
               Plaintiffs and Appellants,  )
                                           )                            S194951
               v.                          )
                                           )                     Ct.App. 1/3 A128647
    STATE BAR OF CALIFORNIA et al.,        )
                                           )              San Francisco City and County
               Defendants and Respondents. )              Super. Ct. No. CPF-08-508880
    ____________________________________)
    
    
            Plaintiffs Richard Sander, Joe Hicks, and the California First Amendment
    Coalition requested that the State Bar of California (State Bar) provide them
    access to information contained in its bar admissions database, including
    applicants‟ bar exam scores, law school attended, grade point averages, Law
    School Admissions Exam scores, and race or ethnicity. Plaintiff Sander sought
    this information in order to conduct research on racial and ethnic disparities in bar
    passage rates and law school grades.
            The question presented is whether any law requires disclosure of the State
    Bar‟s admissions database on bar applicants. We conclude that under the common
    law right of public access, there is a sufficient public interest in the information
    contained in the admissions database such that the State Bar is required to provide
    access to it if the information can be provided in a form that protects the privacy of
    applicants and if no countervailing interest outweighs the public‟s interest in
    disclosure. Because the trial court concluded that there was no legal basis for
    requiring disclosure of the admissions database, the parties did not litigate, and the
    
                                               1
    trial court did not decide, whether and how the admissions database might be
    redacted or otherwise modified to protect applicants‟ privacy and whether any
    countervailing interests weigh in favor of nondisclosure. Consequently, the Court
    of Appeal will be directed to remand the case to the trial court.
                                          I. FACTS
           The State Bar is a “public corporation” of which every person licensed to
    practice law in the state is a member. (Cal. Const., art. VI, § 9.) The State Bar
    serves “as an administrative arm of this court for the purpose of assisting in
    matters of admission and discipline of attorneys.” (Emslie v. State Bar (1974) 
    11 Cal. 3d 210
    , 224.) The State Bar‟s Committee of Bar Examiners administers the
    requirements for admission to the bar, including the bar examination and the
    assessment of applicants‟ moral character, and certifies to this court those
    applicants who satisfy the requirements. (In re Menna (1995) 
    11 Cal. 4th 975
    , 985;
    Bus. & Prof. Code, §§ 6046, 6064.) This court has the sole authority to grant or
    deny admission to practice law, but it accords great deference to the
    recommendation of the State Bar. (See Preston v. State Bar (1946) 
    28 Cal. 2d 643
    ,
    650; In re Petition of Lacey (1938) 
    11 Cal. 2d 699
    , 701.)
           The State Bar maintains an admissions database that includes information
    on approximately 246,000 applicants who applied to take the California bar
    examination from 1972 through 2007. The files in this database generally include
    information obtained from applicants through the admissions process — including
    race or ethnicity, law school attended and year of graduation, and Law School
    Admissions Test (LSAT) score — and information regarding the applicant‟s
    performance on the bar exam — including whether the applicant applied for, took,
    passed or failed the bar exam, and the applicant‟s scores on the bar exam. Some
    of the files also include the applicant‟s law school grade point average, but the bar
    stopped collecting that data about 10 years before the request at issue here was
    
                                              2
    made. All information concerning a particular applicant is identified by a file
    number that has no relationship to the applicant‟s name or personal information.
           Much of the information contained in the admissions database is obtained
    through the application process. Every applicant signs a form authorizing any
    educational or other institutions to release to the State Bar all records or transcripts
    related to the applicant that the State Bar seeks in connection with the application,
    including his or her law school transcripts. It also authorizes the State Bar to
    transmit the applicant‟s scores on the bar exam to his or her law school.
    Applicants additionally complete an “ethnic survey.” The survey form states that
    the information regarding the applicant‟s ethnicity is sought “to assist in the
    continuing evaluation of the examination” and that it “will be treated in a
    confidential manner and will be used only for research purposes. It will not be
    retained by the Committee as part of your application.”
           The State Bar regularly publishes the names of those who pass the bar
    exam. Using the admissions database, it also prepares and publishes a number of
    reports regarding the California bar exam. After each bar exam, it prepares a
    statistical analysis of the bar exam that reports the passage rates for various
    categories of applicants, including type of law school attended (such as ABA
    accredited or unaccredited), particular law school attended, first-time takers and
    repeaters, ethnic group, and sex. The State Bar also has undertaken and reported
    numerous studies on particular topics related to the bar exam, including the
    discrepancy in passage rates among racial/ethnic groups and whether bar exam
    scores are affected by law school admissions practices related to race and
    ethnicity.1 These reports are available to the public. Except through its reports,
    
    1    Klein and Bolus, Are Bar Exam Scores Affected by Law School
    Admissions Practices? (PR-88-2, Oct. 17, 1988); Klein and Bolus, Minority Group
                                                                (footnote continued on next page)
    
    
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    the State Bar has not made the information in its database available to any other
    entity without the consent of applicants, with one exception. At the request of the
    Chief Justice, in 1990 and 1992, it provided information identifying individual
    applicants and their bar exam scores and law schools to the Law School
    Admissions Council2 for a national study on the relationship between law school
    performance and performance on the bar exam.
            In 2006, Professor Richard Sander, of the University of California, Los
    Angeles School of Law, proposed to collaborate with the State Bar on research
    regarding racial disparities in bar passage rates and law school grades. Sander‟s
    hypothesis is that these asserted disparities might be affected by racial preferences
    in law school admissions that, according to his theory, result in a “mismatch”
    between the minority student‟s qualifications and the level of instruction at the law
    school attended. The State Bar‟s Committee of Bar Examiners rejected Sander‟s
    proposal and the Board of Governors confirmed that decision. Subsequently,
    Sander submitted to the State Bar a request for the release of records in the
    database regarding applicants‟ race, ethnicity, law school, year of law school
    graduation, whether the applicant was a transfer student, bar examination scores,
    whether the applicant passed the exam, law school grade point average (GPA),
    LSAT score, and undergraduate GPA. Sander sought the information with any
    
    (footnote continued from previous page)
    
    Performance on the California Bar Examination (PR-87-2, Dec. 3, 1987); Klein,
    An Analysis of the Relationships Between Bar Examination Scores and an
    Applicant‟s Law School, Admissions Test Scores, Grades, Sex, and Racial/Ethnic
    Group (79-1P, Aug. 1979).
    2      The Law School Admissions Council, a public nonprofit organization,
    administers the LSAT. It also conducts numerous studies related to the LSAT and
    to law school admissions policies.
    
    
    
    
                                              4
    identifying information about individual applicants redacted. The California First
    Amendment Coalition submitted a request to the State Bar to inspect or receive
    copies of the same data requested by Sander. The request was reviewed by the
    State Bar‟s Committee of Bar Examiners, which rejected it, citing, among other
    things, privacy concerns.
           Sander, joined by the First Amendment Coalition, submitted a revised
    formal request for public information, citing article I of the California
    Constitution, the common law right of access to public records, and the California
    Public Records Act (Gov. Code, § 6250 et seq.). This request sought the same
    information, but proposed additional means for addressing the State Bar‟s privacy
    concerns. It proposed, among other things, that certain types of data be
    “clustered” to make it more difficult to combine the information in the database
    with information available from public sources to deduce an individual‟s identity.
    The proposal to “cluster” data addressed concerns that if there were a small
    number of individuals in a particular category or “cell” it would arguably be easy
    to identify them. “For example, suppose that a law school had only one Native
    American student in its 2001 graduating class. Disclosing an individual-level
    database that included information on law school, year of graduation, and detailed
    race (including „Native American‟ as a category) would make it possible for a
    diligent member of the public to deduce this student‟s identity, and thereby know
    that the other information in the database applied to him or her.” The revised
    request would reduce the likelihood of such identification by requiring the State
    Bar to cluster data so that individuals are associated with a category of law school
    rather than with a particular law school and with a range of years of graduation
    rather than a particular year. Race would be reported in only four broad categories
    — White, Hispanic, Black, and other. Furthermore, if any “cell” contained fewer
    than five individuals, data would be further clustered. Sander offered to pay any
    
                                              5
    reasonable costs incurred by the State Bar in complying with the request. The
    request was denied.
           Believing that this court might have exclusive jurisdiction in the matter,
    Sander and the First Amendment Coalition (hereafter, collectively, plaintiffs)
    initially filed a petition for writ of mandamus with this court. We denied the
    petition without prejudice to refiling in an appropriate court. Plaintiffs then filed a
    petition for writ of mandate in the superior court, seeking to compel the State Bar
    to provide the records.
                                  II. PROCEEDINGS BELOW
           By stipulation of the parties, proceedings in the superior court were divided
    into two phases. The first phase addressed whether the State Bar has any legal
    duty to produce the requested records. The second phase would address “whether
    provision of the requested records to [plaintiffs] would violate the privacy of any
    person and . . . whether the cost or burden of manipulation, reproduction, or
    disclosure of the requested records that may be entailed by [plaintiffs‟] request
    provide a basis for denying or limiting disclosure.” After trial of the first phase
    based on declarations and stipulated facts, the trial court concluded that no law
    required the State Bar to disclose the records in the admissions database. It
    rejected plaintiffs‟ argument that disclosure was required under the state common
    law. The trial court concluded that the common law right of access to judicial
    branch records was limited to court records of adjudicatory proceedings, that is, to
    “judicial record[s]” as defined in Code of Civil Procedure, section 1904 — “the
    record or official entry of the proceedings in a court of justice, or of the official act
    of a judicial officer, in an action or special proceeding.”
           The trial court also rejected plaintiffs‟ argument that disclosure was
    required under Proposition 59, a 2004 ballot measure that amended the state
    Constitution to include a right of public access to “the writings of public officials.”
    
                                               6
    (Cal. Const., art. I, § 3, subd. (b)(1).) It concluded that Proposition 59 did not
    create any new substantive rights, but simply constitutionalized existing rights of
    access.
           In light of these conclusions, the trial court did not reach the question
    whether plaintiffs were seeking the production of a “new” record that was not
    required under public access laws. The trial court concluded it was unnecessary to
    resolve that issue, and in any event the record was insufficient. It recognized that
    “[i]n the context of digital data, it does not make much sense to consider simply
    whether a document demand requires the creation of a „new‟ document since
    every production of electronically stored data literally creates a „new‟ document
    on screen, on paper, or in a „new‟ digital file.” To determine what constitutes the
    creation of a new file would require consideration of the complexity of the tasks
    required to produce the data requested, a matter that could not be determined
    without expert declarations. The trial court denied the petition without reaching
    the privacy issues that had been reserved for the second phase.
           The Court of Appeal reversed, holding that the common law right of access
    to public records created a presumption that the records in the State Bar‟s
    admissions database must be disclosed, subject to a determination concerning
    whether the public‟s interest in disclosure is outweighed by the privacy interests
    implicated by disclosure or other countervailing public policy concerns. The
    Court of Appeal concluded that the common law right of public access, as
    applicable to the judicial branch, is not limited to court adjudicatory records. It
    recognized a “parallel, but distinct” right of access based on the First Amendment
    right to open trials, which is limited to records of adjudicatory proceedings. (See
    NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 
    20 Cal. 4th 1178
    , 1198-
    1209 & fn. 25 (NBC Subsidiary).) It concluded, however, that California had long
    recognized a broader common law right of access that applies to all three branches
    
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    of government and is not limited to adjudicatory records. Under the common law,
    the Court of Appeal concluded, “ „where there is no contrary statute or
    countervailing public policy, the right to inspect public records must be freely
    allowed.‟ ” (Craemer v. Superior Court (1968) 
    265 Cal. App. 2d 216
    , 222
    (Craemer).) It held that because the “Bar is a public corporation and the records
    sought relate to its official function of administering the bar exam, a matter of
    legitimate public interest,” the database was presumptively open to public access,
    “subject to balancing against the private interests implicated by disclosure.” In
    accordance with the parties‟ stipulation that the case would be tried in two phases,
    the Court of Appeal reversed and remanded for further proceedings in the trial
    court to consider and weigh any countervailing policy considerations against the
    presumption of public access. The Court of Appeal declined to decide whether
    providing the requested information would involve the creation of a new record
    because the trial court had concluded that the record was not adequate to resolve
    that question. We granted review.
                                      III. DISCUSSION
           As explained below, no statute or rule resolves the question before us. We
    conclude, nevertheless, that under common law principles there is a public interest
    in access to the State Bar‟s admissions database that will require the State Bar to
    disclose the requested information if it can be applied in a form that does not
    violate the privacy of applicants and if other considerations do not warrant
    nondisclosure.
    
           A. Public Access Laws
           The California Public Records Act (Gov. Code, § 6250 et. seq. (CPRA)),
    governs requests for the records of most public agencies, but it does not apply to
    the judicial branch. The definition of state agencies to which its provisions apply
    
    
    
                                              8
    excludes “those agencies provided for in . . . Article VI of the California
    Constitution.” (Gov. Code, § 6252, subd. (f).) The CPRA requires those agencies
    provided for in article VI to make available to the public only “an itemized
    statement of the total expenditures and disbursement” of the agency. (Gov. Code,
    § 6261.) Article VI of the state Constitution establishes the courts and the State
    Bar, as well as the Judicial Council, the Commission on Judicial Appointments,
    and the Commission on Judicial Performance. (Cal. Const., art. VI, §§ 1-9.)
    Thus, these entities are exempt from most provisions of the CPRA.
           A variety of other authorities, however, address access to the records of
    judicial branch entities, including the courts and the State Bar. Article I, section 3,
    subdivision (b) of the state Constitution, adopted by initiative in 2004 (Prop. 59),
    addresses “the right of access to information concerning the conduct of the
    people‟s business.” (Cal. Const., art. I, § 3, subd. (b)(1).) More specifically,
    access to court records is governed by long-standing common law principles as
    well as constitutional principles derived from the First Amendment right of public
    access to trials. (See NBC Subsidiary, supra, 20 Cal.4th at p. 1208, fn. 25; Copley
    Press, Inc. v. Superior Court (1992) 
    6 Cal. App. 4th 106
     (Copley Press).) Recently
    adopted rules of court govern access to the administrative records of the courts, the
    Judicial Council, and the Administrative Office of the Courts. (See Cal. Rules of
    Court, rule 10.500(c)(3).) The State Bar is subject to the State Bar Act, which
    contains numerous statutes that make various of its activities and records public
    and others confidential. (See Bus. & Prof. Code, § 6000 et seq.)3 It is also subject
    
    3       Most general laws prescribing procedures for state agencies do not apply to
    the State Bar. (Bus. & Prof. Code, § 6001 [“No law of this state restricting, or
    prescribing a mode of procedure for the exercise of powers of state public bodies
    or state agencies, . . . shall be applicable to the State Bar, unless the Legislature
    expressly so declares.”].)
    
    
    
    
                                               9
    to rules adopted by its governing body, which was, at the time that plaintiffs made
    their request, the Board of Governors and is now called the Board of Trustees
    (hereafter, the Board).4 The Board was authorized to, among other things, adopt
    rules “necessary or expedient” for the carrying out of the State Bar‟s
    responsibilities. (Bus. & Prof. Code, § 6025.)
    
           B. Statutes and Rules Applicable to the State Bar
           As a preliminary matter, we conclude that the statutes and rules specifically
    applicable to the State Bar neither demand nor prohibit the access to the State
    Bar‟s admissions database that plaintiffs seek, although they do confirm that
    members and applicants have some expectation of privacy in their records. Under
    the State Bar Act, the State Bar must make available to the public, in addition to
    the financial information specified in Government Code section 6261, part of the
    CPRA, “the classification and total annual compensation paid to each of its
    employees by name,” as well as its policies regarding employee benefits and
    compensation. (Bus. & Prof. Code, § 6001.4.) The meetings of the Board are
    open to the public, with specified exceptions. (Bus. & Prof. Code, § 6026.5.) The
    bar must maintain official membership records. (Bus. & Prof. Code, § 6002.1,
    subd. (a).) An unsuccessful applicant has the right to inspect his or her
    examination papers, and the grading of those papers. (Bus. & Prof. Code, § 6065,
    subd. (a).)
    
    4      Legislation adopted in 2011 changed the name of the governing board to
    the board of trustees and revised the size and makeup of the Board. (Bus. & Prof.
    Code, § 6001.2, added by Stats. 2011, ch. 417, § 28, enacting Sen. Bill No. 163
    (2011-2012 Reg. Sess.).) That legislation also required the Board to ensure that its
    open meeting requirements are consistent with, and conform to, the Bagley-Keene
    Open Meeting Act (Gov. Code, § 11120 et seq.), the legislative scheme that
    applies to most other state agencies. (Bus. & Prof. Code, § 6026.7.)
    
    
    
    
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           Bar members have the right, however, to limit the disclosure of their
    information “not reasonably related to regulatory purposes.” (Bus. & Prof. Code,
    § 6001.) The “investigations or proceedings conducted by the State Bar
    concerning the moral character of an applicant shall be confidential unless the
    applicant, in writing, waives the confidentiality.” (Bus. & Prof. Code, § 6060.2.)
    Any “demographic data collected” by the State Bar about its members “shall be
    used only for general purposes and shall not be identified to any individual
    member or his or her State Bar record.” (Bus. & Prof. Code, § 6009.5.)
           Rules adopted by the Board require public access to a number of State Bar
    records. For example, each member‟s name, bar number, current address,
    telephone number, e-mail address, date of admission in California and other
    jurisdictions, membership status, and date of any discipline imposed, is available
    to the public. (Rules of State Bar, tit. 2, rule 2.2.) The State Bar‟s Committee of
    Bar Examiners is authorized to “publish statistics for each examination in
    accordance with its policies.” (Rules of State Bar, tit. 4, rule 4.7.)
           Only one State Bar rule is arguably relevant here. The State Bar suggests
    that rule 4.4 prohibits public disclosure of its admissions database. Rule 4.4
    makes the records of applicants for bar membership confidential “unless required
    to be disclosed by law . . . or authorized by the applicant in writing for release to
    others.” (Rules of State Bar, tit. 4, rule 4.4, fn. omitted (hereafter rule 4.4).)
           This rule does not require that plaintiffs‟ request for access to the database
    be denied. Rule 4.4 does not define “applicant records.” As noted above, the
    admissions database at issue in this case is an electronic record of information
    about each applicant‟s performance on the bar exam and data about each applicant
    obtained by the State Bar in the application process. Although the admissions
    database reasonably comes within the term “applicant records,” plaintiffs have
    requested the information in a “de-identified” form, that is, without applicant
    
                                               11
    names or other information that could be used to identify an individual.
    Assuming, for purposes of discussion, that the records in the admissions database
    may effectively be de-identified, such de-identified records do not constitute
    “applicant records” to which public access would be prohibited under the rule.
    The apparent purposes of rule 4.4 are to protect applicants‟ privacy interests and
    the State Bar‟s ability to collect the information it needs to evaluate applicants,
    which it does under a promise of confidentiality. If the applicant cannot be
    identified, disclosure of information does not impair his or her privacy interests
    and the prospect of such disclosure is unlikely to affect the bar‟s ability to obtain
    the information it needs. (Cf. Osborn v. Bd. of Regents (Wis. 2002) 
    647 N.W.2d 158
    , 168, fn. 11 [under federal Family Educational Rights and Privacy Act, “once
    personally identifiable information is deleted, by definition, a record is no longer
    an education record since it is no longer directly related to a student”].) Indeed, as
    noted earlier, the State Bar itself regularly publishes statistical reports on bar exam
    passage rates, broken down by race, gender, and law school attended, in a form
    that does not identify individual applicants. Thus, in practice, the State Bar does
    not interpret its rule as requiring that de-identified information from applicant
    records be kept completely confidential. The most reasonable construction of rule
    4.4 is that it preserves the confidentiality of applicant records that connect
    particular information about an applicant with the applicant‟s name or other
    identifying information.
           This construction of rule 4.4 is consistent with the approach used in laws
    governing information similar to that sought here — including LSAT scores and
    academic records — in other contexts. A testing agency that administers tests
    used for purposes of admission to postsecondary educational institutions —
    including the Law School Admissions Counsel, which administers the LSAT —
    may not disclose an individual‟s test score without the individual‟s authorization.
    
                                              12
    (Ed. Code, § 99161, subd. (a).) Such an agency, however, “may release test scores
    and other information in a form which does not identify any individual test subject
    for purposes of research, studies, and reports primarily concerning the test itself.”
    (Ed. Code, § 99161, subd. (b).)
           Similarly, the records of elementary and secondary school pupils are
    confidential and may be released only in limited circumstances (Ed. Code,
    § 49076), but a school district is not prohibited “from providing, in its discretion,
    statistical data from which no pupil may be identified to any public agency or
    entity or private nonprofit college, university, or educational research and
    development organization when such actions would be in the best educational
    interests of pupils.” (Ed. Code, § 49074.)
           Under the federal law applicable to educational institutions receiving
    federal funds (20 U.S.C. § 1232g), student records generally may not be disclosed
    without consent, but disclosure without consent is permitted “after the removal of
    all personally identifiable information provided that the educational agency or
    institution or other party has made a reasonable determination that a student‟s
    identity is not personally identifiable, whether through single or multiple releases,
    and taking into account other reasonably available information.” (34 C.F.R.
    § 99.31(b)(1) (2013).)
           If there were some doubt about whether rule 4.4 prohibits public access to
    the State Bar‟s database even in a de-identified form, we nevertheless must
    interpret the rule in light of article I, section 3, subdivision (b) of the California
    Constitution. That section provides: “(1) The people have the right of access to
    information concerning the conduct of the people‟s business, and therefore . . . the
    writings of public officials and agencies shall be open to public scrutiny. [¶] (2)
    A statute, court rule, or other authority . . . shall be broadly construed if it furthers
    the people‟s right of access, and narrowly construed if it limits the right of access.”
    
                                               13
    (Ibid.) Although the State Bar contends that section 3, subdivision (b)(1) does not
    create any substantive rights of access and merely “constitutionalizes” existing
    public access rights, it does not contend that the rule of interpretation contained in
    subdivision (b)(2) is inapplicable to its rules. Consequently, we are required to
    interpret rule 4.4 narrowly. Narrowly interpreted, rule 4.4 does not bar release of
    the de-identified information that plaintiffs seek.
    
           C. The Common Law Right of Access to Public Records
           As demonstrated above, the statutes and rules applicable to the State Bar do
    not bar plaintiffs‟ request, but neither do they specifically require disclosure. We
    turn to the question of whether the common law, including cases interpreting
    contemporary statutory language, recognizes a right of public access to the records
    requested by plaintiffs. As discussed above, the Court of Appeal concluded that
    the common law establishes a presumptive right of access to the State Bar‟s
    admissions database “subject to balancing against the private interests implicated
    by disclosure” because the “Bar is a public corporation and the records sought
    relate to its official function of administering the bar exam, a matter of legitimate
    public interest. The State Bar does not dispute that a common law right of access
    to public records exists or that this right applies to the State Bar. (See Chronicle
    Pub. Co. v. Superior Court (1960) 
    54 Cal. 2d 548
    , 563 [State Bar and its officers
    are “public officers”].) However, the State Bar argues that the common law
    applicable to all public entities — upon which the Court of Appeal relied —
    applies only to records that officially memorialize or record government action.
    The State Bar contends that the Court of Appeal erred in concluding that under
    common law principles, there is a presumption of public access to any record
    maintained by a public entity that relates in some way to the public‟s business.
    
    
    
    
                                              14
           The State Bar interprets the common law right of public access too
    narrowly. Historically “ „[a]t common law every person was entitled to the
    inspection, either personally or by his agent, of public records, including
    legislative, executive, and judicial records, provided he had an interest therein
    such as to enable him to maintain or defend an action for which the documents or
    records sought could furnish evidence or necessary information.‟ ” (Craemer,
    supra, 265 Cal.App.2d at p. 220, fn. 3, quoting State v. McGrath (Mont. 1937) 
    67 P.2d 838
    , 841.) In California, the right of public access was codified in 1872 in
    statutes that did not limit the right to those seeking access for the purpose of
    litigation. (See Code Civ. Proc., former § 1888 [enacted 1872]; former Pol. Code,
    § 1032 [enacted 1872].)5
           The State Bar is correct that under early California law, the term “public
    records” was generally used to refer to the official records of public entities. Code
    of Civil Procedure, former section 1892 provided: “Every citizen has a right to
    inspect and take a copy of any public writing of this State, except as otherwise
    expressly provided by statute.” (Enacted 1872, repealed by Stats. 1968, ch. 1473,
    § 25, p. 2945.) Public writings were defined in the 1872 Code of Civil Procedure
    as “[t]he written acts or records of the acts of the sovereign authority, of official
    bodies and tribunals, and of public officers, legislative, judicial, and executive”
    and “[p]ublic records, kept in this State, of private writings.” (Code Civ. Proc.,
    
    
    
    
    5       The Code of Civil Procedure and the Political Code (as well as the Civil
    Code and Penal Code) were enacted in 1872. “The four codes were not published
    as part of the Statutes of 1871-72 and were not given chapter numbers.” (Kleps,
    The Revision & Codification of Cal. Statutes 1849-1953 (1954) 42 Cal. L.Rev.
    766, 775.)
    
    
    
    
                                              15
    former § 1888, enacted 1872 and repealed by Stats. 1968, ch. 1473, § 24, p. 2945;
    Craemer, supra, 265 Cal.App.2d at p. 220.)
           The case law recognized, however, that the right of public access was not
    limited to “public records” as so defined. First, relevant statutory language
    contemplated disclosure of some “other matters.” (Former Pol. Code, § 1032.)
    Prior to the passage of the CPRA in 1968, both former Political Code section 1032
    and its successor statute, Government Code section 1227 also provided: “The
    public records and other matters in the office of any officer are at all times, during
    office hours, open to the inspection of any citizen of this State.” (Former Pol.
    Code, § 1032, repealed by Stats. 1951, ch. 655, § 37, p. 1865; Gov. Code, former
    § 1227, enacted by Stats. 1951, ch. 655, § 23, p. 1851 and repealed by Stats. 1968,
    ch. 1473, § 38, p. 2945, italics added; see ante, p. 18.) The term “public records,”
    as used in these statutes, was interpreted to mean the same as “public writings,” as
    defined in Code of Civil Procedure, former section 1888. (Craemer, supra, 265
    Cal.App.2d at p. 220.) As the quoted language shows, however, these statutes also
    permitted access to “other matters” in government offices.
           Case law interpreted the term “other matters” based upon fundamental
    public policy: “The „other matters‟ referred to . . . is matter which is „public,‟ and
    in which the whole public may have an interest.” (Whelan v. Superior Court
    (1896) 
    114 Cal. 548
    , 550 [holding that written instructions to a sheriff for carrying
    out a writ of execution on behalf of a creditor, although possessed by a public
    officer, were not subject to disclosure because the sheriff was acting as an agent of
    the creditor and not in his official capacity].) The scope of disclosure was not
    well-defined: “There is no precise formula by which it can be determined whether
    a writing is such „other matter‟; it depends in each instance upon the facts of the
    particular case. It is obvious that not every piece of correspondence or written
    statement lodged in the office of a public officer partakes of such a public interest
    
                                              16
    as to be open to general inspection.” (City Council v. Superior Court (1962) 
    204 Cal. App. 2d 68
    , 75.)
           In Coldwell v. Board of Public Works (1921) 
    187 Cal. 510
    , 519-220, this
    court concluded that preliminary plans and estimates related to a public works
    project held in the office of the city engineer were not “public records” as defined
    in Code of Civil Procedure, section 1888, because they had not yet been approved;
    nevertheless, they were “other matters” to which the public had a right of access
    under former Political Code section 1032. The public policy in favor of access to
    matters of public interest informed our interpretation of this statute. These plans
    represented steps in the completion of a large public project that was being
    undertaken by public employees at public expense. “As such they are matters
    which affect the public, and in which the public has an interest, if that interest is
    only to see that the city engineer is taking steps toward the completion of [the
    project].” (Coldwell, supra, at pp. 520-521.)
           A number of Attorney General opinions addressing the right of public
    access under these former statutes expressed the view that particular documents in
    possession of government agencies were not subject to public disclosure because
    they were neither the “written acts or records of the acts” of public officials or
    bodies nor of sufficient public interest to qualify as “other matters” to which
    access was granted under section 1227 or similarly worded predecessor statutes.
    (See, e.g., 31 Ops.Cal.Atty.Gen. 103, 104 (1958) [applications to the Real Estate
    Commissioner for various licenses are not public records because the information
    on these applications “is not of sufficient interest to the public”]; 18
    Ops.Cal.Atty.Gen. 231 (1951) [reports on county hospitals required to be made by
    Department of Public Health are subject to right of access, but investigative
    reports, data, and information upon which the report itself is based are not]; 11
    Ops.Cal.Atty.Gen. 41, 45 (1948) [concluding that production reports submitted by
    
                                              17
    mine operators to the Division of Mines for the purpose of assembling statistical
    data need not be disclosed because there is no public interest in the production
    figures of an individual mine operator, but noting that statutory clarification would
    be desirable because “the common law rule of inspection presents a nebulous and
    unsatisfactory standard”].)
           Courts applying these former statutes recognized exceptions to the policy in
    favor of a right of access when other public policies favored nondisclosure. They
    recognized that “public policy demands that certain communications and
    documents shall be treated as confidential and therefore are not open to
    indiscriminate inspection, notwithstanding that they are in the custody of a public
    officer or board and are of a public nature.” (Runyon v. Board etc. of Cal. (1938)
    
    26 Cal. App. 2d 183
    , 184 [holding that letters and communications voluntarily
    submitted to the parole board in connection with the determination of prisoners‟
    applications for parole are confidential].) In Colnon v. Orr (1886) 
    71 Cal. 43
    , we
    denied a citizen‟s petition to inspect a letter filed with a state insane asylum that
    criticized its superintendent. “It is not every written charge made to a board of
    supervisors, a board of directors, or trustees of a college or other state institution,
    which, upon being filed in the office of their secretary or treasurer, or custodian of
    their records, becomes thereby a public record to which any citizen may have
    access at pleasure.” (Id. at p. 44.) We concluded that such a document was not
    part of the public record. (Id. at pp. 44-45.)
           Thus, prior to the adoption of the CPRA in 1968, case law applied the
    relevant statutes in light of a fundamental policy favoring access to records in
    which the public had a legitimate interest. Records maintained by a public entity
    were subject to a qualified right of public access if they were records that
    constituted the “written acts or records of acts” of the public entity, or if they
    constituted “other matters” of sufficient public interest to justify requiring public
    
                                               18
    access, taking into account the facts of the particular case, unless other interests,
    including a need for confidentiality, weighed in favor of nondisclosure.
           The State Bar cites Mushet v. Department of Pub. Service (1917) 
    35 Cal. App. 630
    , 634 (Mushet), as support for its argument that only records that
    officially memorialize or record government actions constitute public records
    under California common law. As we explain, however, we find Mushet
    consistent with the authorities discussed above, which recognize a qualified right
    of public access to records of government agencies that are of public interest,
    subject to countervailing public policy considerations.
           To be sure, Mushet, supra, 35 Cal.App. at page 634 did recognize that
    “public records,” as defined in the statutes of the time, included the official
    records of government action. Mushet, however, did not limit the right of access
    to documents that came within this definition, but applied a more expansive
    common law rule to require disclosure. (Id. at pp. 636-639.) Mushet applied the
    public access right to books, accounts, and other records possessed by the city
    explaining items of expenditure, and anticipated expenditures, related to a project
    to expand the infrastructure of power generation in Los Angeles. (Id. at p. 634.)
    These documents were not technically “public records” within the meaning of
    applicable statutes because, under the law in effect at the time, the city was acting
    as a private utility corporation in conducting those activities and therefore the
    records at issue were not “official.” Nevertheless, the records reflected the use of
    public funds. The court concluded that voters and taxpayers had “a great interest
    in the proper management of the business and matters pertaining to their county,
    and therefore are entitled to know whether the public officials whom they have
    selected to represent them have properly used, disbursed, and accounted for the
    public funds which under the law have been confided to their custody and
    administration.” (Id. at p. 637.) The court explained that “[t]he rules of the
    
                                              19
    common law will be applied to those cases which come within their reason and
    equity, even when such cases seem to be outside the strict letter of such rules as
    they are ordinarily stated. . . . (Id. at p. 638.)6
           The state of the law of public access to the records of public entities prior to
    the 1968 adoption of the CPRA was succinctly summarized in an opinion of the
    California Attorney General as follows: “The phrase „public records‟ in Political
    Code section 1032 was limited to those documents meeting the definitions of
    „public writings‟ expressed in Code of Civil Procedure sections 1888 and 1894.
    To balance this restricted definition, the law also permitted public inspection of
    certain „other matters‟ in the office of a public officer if they were matters which
    were „public‟ and in which the whole public might have an interest. This „other
    matters‟ area was also subject to further enlargement by resort to common law
    principles.” (53 Ops.Cal.Atty.Gen. 136, 142 (1970).) The right was not limited,
    
    
    6       The federal courts have similarly recognized a common law right of public
    access to government documents, although the parameters of the right have not
    been clearly established. In Nixon v. Warner Communications, Inc. (1978) 
    435 U.S. 589
    , the court observed that “the courts of this country recognize a general
    right to inspect and copy public records and documents, including judicial records
    and documents.” (Id. at p. 597, fns. omitted.) “In contrast to the English practice,
    [citation], American decisions generally do not condition enforcement of this right
    on a proprietary interest in the document or upon a need for it as evidence in a
    lawsuit. The interest necessary to support the issuance of a writ compelling access
    has been found, for example, in the citizen‟s desire to keep a watchful eye on the
    workings of public agencies, [citations], and in a newspaper publisher‟s intention
    to publish information concerning the operation of government [citations].” (Id. at
    pp. 597-598.) Admittedly, the sparse case law recognizing this common law right
    made it “difficult to distill . . . a comprehensive definition” or “identify all the
    factors to be weighed.” (Id. at pp. 598-599.) The high court concluded that this
    process was best left to the “sound discretion of the trial court, a discretion to be
    exercised in light of the relevant facts and circumstances of the particular case.”
    (Id. at p. 599.)
    
    
    
    
                                                20
    as the State Bar contends it should be, to the official records of government
    actions.
    
           D. Common law principles as applied to court records
           The State Bar contends that because it is a judicial branch entity, and
    because it acts as an “administrative arm” of this court in connection with
    admissions, these general common law principles should not govern it. Rather, it
    argues, it should be subject to only the common law rules that are applicable
    specifically to court records. Public access to court records, the State Bar
    contends, is limited to those that “accurately and officially reflect[] the work of the
    court.” (Copley Press, supra, 6 Cal.App.4th at p. 113 [defining a judicial record
    as one that “accurately and officially reflects the work of the court, such as its
    orders and judgments, its scheduling and administration of cases, its assignment of
    judicial officers and administrators”].) Thus, it contends, public access to its
    records under the common law should be limited to those that accurately and
    officially reflect the work of the State Bar. As explained below, the general
    principles regarding public access to the records of public entities established in
    the statutes and case law discussed above continue to apply in the context of court
    records. Consequently, the right is not limited in the manner proposed by the State
    Bar.
           When the CPRA was adopted in 1968, Code of Civil Procedure sections
    1888 and 1892 and Government Code section 1227, discussed above, which had
    codified the general right of access to public records, were repealed. (Stats. 1968,
    ch. 1473, §§ 24-25, 38, p. 2945.) Nevertheless, both statute and case law
    continued to recognize this right of access. The Legislature declared that “access
    to information concerning the conduct of the people‟s business is a fundamental
    and necessary right of every citizen of this state.” (Gov. Code, § 6250, enacted by
    
    
    
                                              21
    Stats. 1968, ch. 1473, § 39, p. 2946.) The courts were made exempt from most
    provisions of the CPRA, but the Legislature explicitly preserved existing law
    regarding “the status of judicial records as it existed immediately prior to the
    effective date of this section.” (Gov. Code, § 6260, enacted by Stats. 1968,
    ch. 1473, § 39, p. 2948.) The common law right of access continued to be applied
    and to develop in cases addressing court records, which recognized that “[t]o
    prevent secrecy in public affairs public policy makes public records and
    documents available for public inspection by newsmen and members of the
    general public alike.” (Estate of Hearst (1977) 
    67 Cal. App. 3d 777
    , 782.) “Absent
    strong countervailing reasons, the public has a legitimate interest and right of
    general access to court records . . . .” (Id. at p. 784.)
           The Court of Appeal in Copley Press, supra, 6 Cal.App.4th at pages 113-
    115, aptly summarized the principles governing public access to court records. It
    identified two categories of records typically used in the courts. The first included
    “documentation which accurately and officially reflects the work of the court, such
    as its orders and judgments, its scheduling and administration of cases, its
    assignment of judicial officers and administrators[,] . . . the official court minutes,
    all its written orders and dispositions, the official reports of oral proceedings, . . .
    the master calendar[,] . . . [and] the various documents filed in or received by the
    court . . . and the evidence admitted in court proceedings.” (Id. at p. 113.) These
    documents are “ „judicial record[s]‟ ” that “represent and reflect the official work
    of the court, in which the public and press have a justifiable interest.” (Ibid.)
    They are presumptively accessible to the public.7
    
    
    7      Copley Press recognized that both the First Amendment to the United
    States Constitution and its state counterpart, article I, section 2, subdivision (a) of
    the California Constitution, “provide broad access rights to judicial hearings and
                                                                  (footnote continued on next page)
    
    
                                               22
            The second category of records identified in Copley Press includes
    informal and preliminary writings used by the courts, such as rough drafts,
    informal notes, memoranda, and other preliminary writings. (Copley Press, supra,
    6 Cal.App.4th at p. 114.) Although such writings are used by judges in the course
    of judicial work, they are not subject to the right of public access. (Ibid.; see also
    NBC Subsidiary, supra, 20 Cal.4th at p. 1212, fn. 29.) The reason is that public
    access to such documents is not generally in the public interest because they are
    “tentative, often wrong, sometimes misleading . . . they do not speak for the court
    and do not constitute court action.” (Copley Press, supra, at p. 114.)
    Furthermore, access to such preliminary writings “would severely hamper the
    users of the materials” because their purpose is to “extract raw and immature
    thoughts from the brain to paper, so they can be refined and corrected.” (Ibid.)
    Knowing that such materials could be exposed to the public eye would inhibit
    their creation.
            Copley Press recognized, however, that not every document used and
    maintained by courts clearly falls into one of these two categories. It identified a
    third category of records that “are on the margin” of these two categories. (Copley
    
    
    (footnote continued from previous page)
    
    records.” (Copley Press, supra, 6 Cal.App.4th at p. 111; accord, NBC Subsidiary,
    supra, 20 Cal.4th at pp. 1208-1209 & fn. 25.) Under constitutional principles,
    records of civil and criminal adjudicatory proceedings must be disclosed to the
    public unless there is an overriding interest that supports sealing the record, there
    is a substantial probability that the interest will be prejudiced by disclosure, the
    sealing is narrowly tailored to serve the overriding interest, and there is no less
    restrictive means of achieving the overriding interest. (NBC Subsidiary, supra, at
    p. 1218; see Cal. Rules of Court, rule 2.550(d).) Because the State Bar‟s records
    are not records of adjudicatory proceedings, neither the First Amendment nor the
    counterpart state free speech provision is implicated in the present case.
    
    
    
    
                                              23
    Press, supra, 6 Cal.App.4th at p. 115.) In Copley Press, members of the press
    sought access to the minute books of the clerks serving six superior court judges,
    in order to investigate whether gifts judges reported from certain attorneys may
    have influenced judicial conduct. The minute books are informal notes kept by the
    clerks as a precursor to the creation of the formal minutes of the court. The
    appellate court concluded that the clerk‟s rough minutes fall into this marginal
    category. They are not official records of the court and do not constitute court
    action, but “[o]n the other hand, they do not partake of the discretionary and
    incomplete content that characterizes the judge‟s bench notes or the first drafts of
    various court documents.” (Ibid.) The court concluded that the clerk‟s rough
    minutes should be disclosed to the public. The court noted that they are kept
    regularly by all clerks, they reflect ministerial actions by the clerk, and “the clerk‟s
    minute book presumptively contains only accurate, descriptive and non-
    discretionary information.” (Ibid.) Significantly, the court pointed out that the
    minute book “is the one repository of easy access which provides a continuous
    chronology of each court‟s daily activities.” Thus, in deciding whether documents
    that do not clearly fall into the category of public court records are subject to a
    right of access, Copley Press focused on the usefulness of the records and thereby
    on the public‟s interest in access to those records.
           Pantos v. City and County of San Francisco (1984) 
    151 Cal. App. 3d 258
    (Pantos), applied a similar approach. First, Pantos held that a court‟s master jury
    list of potential jurors qualified for service was a judicial record that must be
    disclosed to the public. (Id. at pp. 262-263.) The master list constituted an official
    list prepared by the jury commissioner that had historically been treated as a
    public document, and the Court of Appeal found no compelling reason for
    nondisclosure. (Id. at p. 263.) Second, Pantos held that questionnaires used by
    the jury commissioner to determine whether citizens were qualified for jury
    
                                              24
    service did not have to be disclosed. Although the questionnaires were used and
    maintained by the court, they had not historically been disclosed to the public.
    The plaintiff in Pantos argued that access to the questionnaires would enhance the
    selection of a fair jury, but the court concluded that voir dire questioning was
    sufficient for that purpose. (Id. at pp. 263-265.) Furthermore, the questionnaire
    stated that the prospective juror is compelled by law to provide the information
    and that the questionnaire is confidential and will not be made public. (Id. at
    p. 264.) “To disclose this information under these conditions may negatively
    impact on the prospective juror‟s willingness to serve and thus interfere with
    efficient court administration. . . . Public interest in withholding such
    questionnaires outweighs the public‟s interest in disclosure.” (Id. at pp. 264-265.)
           The approach to court records set forth in Copley Press and applied in
    Pantos is consistent with the general statutory and common law principles
    regarding the right of public access as applied in California before the adoption of
    the CPRA. As discussed above, the right applied to the “ „ “written acts or records
    of the acts” ‟ ” of government officials and entities and also to “other matters” that
    were of sufficient interest to the public to warrant disclosure, subject to
    countervailing public interests. (Coldwell v. Board of Public Works, supra, 187
    Cal. at p. 518; accord, City Council v. Superior Court, supra, 204 Cal.App.2d at
    p. 73; see also Mushet, supra, 35 Cal.App. at p. 638 [“The rules of the common
    law will be applied to those cases which come within their reason and equity, even
    when such cases seem to be outside the strict letter of such rules as they are
    ordinarily stated.”].)
           The State Bar claims support in Washington Legal Foundation v. United
    States Sentencing Comm’n (D.C. Cir. 1996) 
    89 F.3d 897
     (Washington Legal
    Foundation) for its contention that the right of public access to judicial branch
    records is limited to those that officially and accurately reflect the work of the
    
                                              25
    public agency. The court in Washington Legal Foundation applied the common
    law right of access to a judicial branch entity other than a court — an advisory
    committee to the United States Sentencing Commission. The petitioner in
    Washington Legal Foundation, supra, 89 F.3d at page 899 sought “ „internal
    documents and memoranda‟ ” relied upon by an advisory group in formulating its
    final public recommendations to the United States Sentencing Commission. The
    federal appellate court declared that under federal common law, a public record
    was “a government document created and kept for the purpose of memorializing
    or recording an official action, decision, statement, or other matter of legal
    significance, broadly conceived.” (Id. at p. 905.) It concluded that the public has
    a presumptive right of access to such records, subject to a balancing of public and
    private interests. (Ibid.) The court viewed this definition as allowing adequate
    public oversight of government agencies while avoiding “the necessity for judicial
    application of the second-step balancing test to documents that are preliminary,
    advisory, or . . . do not eventuate in any official action or decision being taken.”
    (Ibid.)
              The court clarified that this definition would include records of
    governmental expenditures, records of real estate transactions, and a list of tax
    abatements passed by a local government. (Washington Legal Foundation, supra,
    89 F.3d at p. 905.) In contrast, this definition “would not encompass the
    preliminary materials upon which an official relied in making a decision or other
    writings incidental to the decision itself — for example, the report of a blood test
    provided in support of an application for a marriage license, the job application of
    a would-be government employee, a government auditor‟s preliminary notes used
    in the preparation of an official report, or a cover memorandum circulated with a
    copy of an official report or study.” (Id. at pp. 905-906.) The court held that the
    advisory committee records sought by the petitioner were not public records
    
                                                26
    because they were either “ „pre-decisional‟ ” or incidental to the official actions,
    decisions, and statements of that commission. (Id. at p. 906.) Consequently, there
    was no presumptive right of public access and the court was not required to
    balance competing interests.
           Washington Legal Foundation‟s categories of records that must be
    disclosed and those that need not be disclosed are essentially the same two
    categories recognized in Copley Press, and its holding is consistent with Copley
    Press because the internal documents and memoranda of an advisory committee
    would fall into the category of records that are not disclosable under Copley Press.
    Unlike Copley Press, however, the court in Washington Legal Foundation did not
    consider whether records might exist that did not clearly fall into either of these
    categories — the “marginal” category discussed in Copley Press. It had no need
    to do so, because the documents at issue clearly fell into the category that need not
    be disclosed. To the extent Washington Legal implicitly rejected the existence of
    such a category, and limited the right of public access to documents that
    memorialize or record government actions, it is not consistent with the California
    case law on the right of public access.
           The State Bar suggests that if the common law right of access is not limited
    in the manner it proposes, it would create a level of access to judicial branch
    records that is equivalent to the level of access provided in the CPRA and thereby
    effectively eliminate the CPRA‟s exemption for the judicial branch. The CPRA
    applies to “any writing containing information relating to the conduct of the
    public‟s business prepared, owned, used, or retained by any state or local agency
    regardless of physical form or characteristics,” (Gov. Code, § 6252, subd. (e))
    unless a specific statutory exemption applies (Gov. Code, § 6255, subd. (a); see
    
    
    
    
                                              27
    Gov. Code, §§ 6254 et seq., 6276 et seq.).8 “This definition is intended to cover
    every conceivable kind of record that is involved in the governmental process . . . .
    Only purely personal information unrelated to „the conduct of the public‟s
    business‟ could be considered exempt from this definition . . . .” (Assem.
    Statewide Information Policy Com., Final Rep. (Mar. 1970) 1 Assem. J. (1970
    Reg. Sess.) appen. p. 9; accord, Commission on Peace Officer Standards &
    Training v. Superior Court (2007) 
    42 Cal. 4th 278
    , 288, fn. 3.)
           The State Bar is correct that, unlike the CPRA, the common law does not
    recognize a presumptive right of public access to every record in possession of a
    government agency that is in any way related to the public‟s affairs. Copley Press,
    supra, 6 Cal.App.4th at page 113, explicitly rejected the argument that “all
    writings created within the court premises by court personnel in connection with
    court business” were public records under California common law. It noted that if
    that definition applied, “access to court documents would be virtually the same as
    access to any other governmental documents,” as prescribed in the CPRA. (Ibid.;
    see City Council v. Superior Court, supra, 204 Cal.App.2d at p. 73 [“the mere fact
    that a writing is in the custody of a public agency does not make it a public
    record”].)
           We agree with the Copley Press court that the common law rule —
    although not limited in the manner proposed by the State Bar — does differ from
    
    
    8      The CPRA itself specifies many exceptions and cross-references other
    statutes that exempt particular records from disclosure. (Gov. Code, §§ 6254-
    6254.29, 6276.02-6276.48.) The CPRA also includes a catch-all exemption that
    permits an agency to withhold a record if it can demonstrate that “on the facts of
    the particular case the public interest served by not disclosing the record clearly
    outweighs the public interest served by disclosure of the record.” (Gov. Code,
    § 6255, subd. (a).)
    
    
    
    
                                             28
    the CPRA. The CPRA establishes a presumptive right of access to any record
    created or maintained by a public agency that relates in any way to the business of
    the public agency, and the record must be disclosed unless a statutory exception is
    shown. Under the common law, on the other hand, no such presumption exists.
    Although the official records of government actions have historically been treated
    as subject to public access and are readily categorized as “public records,” for
    other matters or types of records a determination must be made concerning
    whether the records at issue should be treated as public, taking into account the
    public‟s interest in disclosure as well as the competing interests involved.
           A report to a legislative committee considering a predecessor bill to the bill
    that was later adopted as the CPRA identifies this difference between the way
    public records previously were defined and the way they would be defined under
    the proposed legislation. (Assem. Com. on Government Organization, Staff Rep.,
    Cal.‟s Public Records Law and Proposed Revision, prepared for hearing Jan. 6 and
    7, 1966 on Assem. Bill No. 3015 (1966 Reg. Sess.).) The pending bill, Assembly
    Bill No. 3015 (1966 Reg. Sess.), contained a definition of public records similar to
    the one contained in the current version of the CPRA. The report states that the
    definition of public records under existing law is “broad and provides little
    guidance in determining whether or not a specific document is a public record.
    Generally, the courts have taken a restrictive view in applying these sections. [¶]
    In contrast, AB 3015 begins by making every document a public record. The only
    exceptions are those which are specifically recognized by the Legislature (either in
    the exemptions outlined in the bill or by specific statute). The significance of this
    change is twofold: (1) the burden for determining what is a public record is
    shifted; (2) it limits the authority of administrators to withhold records unless there
    is an expressed statutory right to do so.” (Id. at p. 6.)
    
    
    
                                               29
           In light of the differences between the common law approach to public
    records and the CPRA‟s approach, we see no conflict between the CPRA‟s
    exemption of judicial branch records and the recognition that a common law right
    of access continues to exist in records of those public entities not governed by the
    CPRA in which there is a legitimate public interest, if that interest is not
    outweighed by other interests.
    
           E. Application of common law principles to the admissions database
    
               1. Public interest in the admissions database
           Applying the principles discussed above, the admissions database falls into
    the “marginal” third category of records identified in Copley Press. The
    admissions database does not constitute an official record of the State Bar‟s
    actions and has not historically been treated as a public record. On the other hand,
    the admissions database does not fall into the category of preliminary, pre-
    decisional materials whose disclosure could undermine the purposes for which
    they were created and which could be misleading or inaccurate. The admissions
    database could be characterized as “preliminary” in that it constitutes the rough
    data upon which the bar‟s published statistical reports and other studies are based.
    Unlike a rough draft or internal memo, however, we have no reason to believe that
    it is inaccurate or misleading, or that its disclosure would interfere with the State
    Bar‟s use of it for its own purposes.
           The threshold consideration in determining whether these records are
    subject to public disclosure is the public interest that would be served by
    disclosure. In making that determination, the particular motive of the party
    seeking the information is not the relevant interest. (Connell v. Superior Court
    1997) 
    56 Cal. App. 4th 601
    , 616 [applying exemption to CPRA for cases in which
    public interest in disclosure is outweighed by other interests]; see also Department
    
    
    
                                              30
    of Defense v. FLRA (1994) 
    510 U.S. 487
    , 495-496 [applying exemption to
    Freedom of Information Act applicable to cases in which public interest in
    disclosure is outweighed by other interests].) Rather, we focus on “whether
    disclosure would contribute significantly to public understanding of government
    activities.” (City of San Jose v. Superior Court (1999) 
    74 Cal. App. 4th 1008
    , 1018;
    accord, Department of Defense v. Federal Labor Relations Authority, supra, at
    pp. 495-496.) Thus, although plaintiff Sander‟s motive in seeking the information
    is to facilitate his research regarding law school admissions practices, we focus on
    the interest of the general public in the activities of the State Bar.
           The public does have a legitimate interest in the activities of the State Bar
    in administering the bar exam and the admissions process. In particular, it seems
    beyond dispute that the public has a legitimate interest in whether different groups
    of applicants, based on race, sex or ethnicity, perform differently on the bar
    examination and whether any disparities in performance are the result of the
    admissions process or of other factors. Indeed, the State Bar uses the database to
    prepare a statistical analysis of the bar exam that reports the bar passage rates for
    various categories of applicants. Public access to the admissions database used by
    the State Bar to evaluate its admissions process would allow the public to
    independently ascertain and evaluate that process. Therefore, the public‟s interest
    in the information in the database would contribute to the public‟s understanding
    of the State Bar‟s admissions activities, and is sufficient to warrant further
    consideration of whether any countervailing consideration weighs against public
    access.
    
               2. Promise of confidentiality
           The State Bar asserts that, notwithstanding any public interest in the
    admissions database, it is not subject to public disclosure because the information
    
    
    
                                               31
    contained in it was obtained from applicants under a promise that it would remain
    confidential. Under longstanding common law and statutory principles,
    information obtained through a promise of confidentiality is not subject to the
    right of public access when the public interest would be furthered by maintaining
    confidentiality. (See Runyon v. Board etc. of Cal., supra, 26 Cal.App.2d at p. 185
    [“in order to impartially and intelligently discharge the functions of the state board
    of prison terms and paroles it is essential to secure all possible information bearing
    upon applicants for parole; and necessarily much of the information thus obtained
    can be had only upon the understanding that the persons furnishing the same will
    be protected and that the information will be treated as confidential”]; Chronicle
    Pub. Co. v. Superior Court, supra, 
    54 Cal. 2d 548
     [complaints to State Bar not
    resulting in disciplinary action were privileged, where confidentiality furthered
    State Bar‟s interest in encouraging citizens to provide information and attorneys‟
    interests in avoiding publication of unfounded complaints weighed against
    disclosure]; Pantos, supra, 151 Cal.App.3d at pp. 264-265 [access to the
    questionnaires used by a jury commissioner to determine the qualifications of
    potential jurors was denied, in part, because jurors were promised that their
    responses would be confidential].) This principle is currently reflected in
    Evidence Code section 1040, which provides a privilege to a public entity to
    refuse to disclose information acquired in confidence if “there is a necessity for
    preserving the confidentiality of the information that outweighs the necessity for
    disclosure.” (Evid. Code, § 1040, subd. (b)(2).)
           As we have alluded to earlier, however, this principle has not prevented
    public access to otherwise confidential, private information in the possession of a
    public entity that is not linked to the individual to which it pertains. (See, e.g.,
    City & County of S.F. v. Superior Court (1951) 
    38 Cal. 2d 156
     [names of private
    employers who provided specific wage information to city civil service
    
                                               32
    commission for purpose of determining prevailing wage rates were confidential,
    where information could not be obtained without promise of confidentiality and
    lists of wage rates obtained from employers was available to public in form that
    did not identify which employer submitted which wage list]; Franchise Tax Board
    v. Superior Court (1950) 
    36 Cal. 2d 538
    , 543 [banks seeking right to inspect tax
    returns of nonfinancial corporations considered by Franchise Tax Board in fixing
    the tax rate for financial corporations were supplied with “every item of
    information requested by them . . . with the exception of the individual taxpayers‟
    identity”]; see also Zamudio v. Superior Court (1998) 
    64 Cal. App. 4th 24
    [requiring release of juror questionnaires with personal identifying information
    redacted].) Because plaintiffs do not seek the information in a manner that would
    reveal the identities of individual applicants, the State Bar‟s promises of
    confidentiality do not necessarily preclude public access to the database.
           Similarly, we cannot hold as a matter of law that bar applicants‟
    constitutional rights of privacy preclude disclosure of the information in the
    database even in a de-identified form. (See Cal. Const., art. I, § 1.) The State Bar
    cites this court‟s statement in White v. Davis (1975) 
    13 Cal. 3d 757
    , 775, that the
    constitutional right to privacy is aimed at, among other things, “the improper use
    of information properly obtained for a specific purpose, for example, the use of it
    for another purpose or the disclosure of it to some third party.” The cases cited by
    the State Bar that apply this principle, however, involve disclosure of information
    about a named individual. (See Porten v. University of San Francisco (1976) 
    64 Cal. App. 3d 825
    , 830 [complaint alleging that a university disclosed grades the
    plaintiff had earned at another university despite assurances that the grades would
    be used only for purposes of evaluating his application for admission stated a
    claim for violation of the right of privacy]; Urbaniak v. Newton (1991) 
    226 Cal. App. 3d 1128
    , 1138 [complaint alleging that doctor disclosed plaintiff‟s HIV
    
                                             33
    status stated cause of action for invasion of privacy].) The State Bar‟s argument
    that disclosure of the requested data would violate applicants‟ privacy even if it
    cannot be connected to them as individuals is not supported by authority.
           The parties disagree concerning whether the information at issue can be
    provided in a form that does not breach the State Bar‟s promises of confidentiality.
    The State Bar contends that “the commonly held assumption that any data can be
    successfully [de-identified] as suggested by [plaintiffs], so that it can be made
    available to the public without risk that individual people‟s information be
    revealed, has proved to be false.” Plaintiffs counter that “[d]isclosure of de-
    identified information regarding individuals obtained from government databases
    is commonplace. . . . The routine release of such data refutes the claim that such
    information cannot be disclosed without undue risk of „re-identification‟ of those
    individuals.” This issue involves disputed questions of fact that we are not
    currently in a position to decide. By the parties‟ stipulation, litigation of this issue
    was reserved for the second phase of trial and may be decided in the trial court
    upon remand.
    
           F. Form in Which the Data is Kept
           The State Bar contends, as it did in the trial court, that in order to comply
    with Plaintiffs‟ request without infringing bar applicants‟ privacy interests it
    would be required not only to redact personal information but also to create new
    categories of information by “clustering” categories of data — a measure proposed
    by plaintiffs to make it more difficult to re-identify individuals. The State Bar
    concedes that if the admissions database is subject to the right of access it may be
    required to redact applicants‟ names, but contends that making the changes to the
    admissions database necessary to protect applicants‟ privacy would constitute the
    creation of a “new” record and that creation of a new record is not required. (See,
    
    
    
                                               34
    e.g., NLRB v. Sears, Roebuck & Co. (1975) 
    421 U.S. 132
    , 162 [federal Freedom of
    Information Act does not require agency to create documents; it requires only
    “disclosure of certain documents which the law requires the agency to prepare or
    which the agency has decided for its own reasons to create”]; Center for Public
    Integrity v. Federal Communications Comm’n (D.D.C. 2007) 
    505 F. Supp. 2d 106
    ,
    114 [producing data in the form requested would amount to creation of a new
    record, which is not required by Freedom of Information Act].)
           We agree with the trial court that in the context of electronic records, and in
    particular electronic databases, to resolve this issue would require consideration of
    the complexity of the tasks required to produce the data in the form requested;
    consequently, it would be premature for us to attempt to resolve this issue. The
    parties have not yet litigated whether and how applicants‟ privacy interests could
    be protected if public access to the database were permitted. Therefore, we do not
    yet know what modifications would be necessary to protect these countervailing
    interests. Furthermore, by stipulation, the parties reserved for the second phase of
    trial the question whether disclosure would impose an undue burden on the State
    Bar.
           Plaintiffs have made clear that they would accept the data in its current
    form, without any modification other than the redaction of applicants‟ names.
    They have proposed additional modifications to the data, including the
    “clustering” of data, in order to satisfy the State Bar‟s concerns about bar
    applicants‟ privacy. In light of our holding recognizing the public‟s interest in the
    admissions database, the State Bar may choose to implement these proposals or
    may propose other measures that will satisfy the public‟s right of access while
    protecting applicants‟ privacy. If not, it will be necessary for the trial court to
    resolve whether and how a record that is responsive to plaintiffs‟ requests may be
    
    
    
                                              35
    produced without identifying individual applicants or otherwise unduly burdening
    any legitimate competing interests.
                                     IV. CONCLUSION
           The judgment of the Court of Appeal is affirmed. That court is directed to
    remand this case to the trial court for further proceedings consistent with this
    opinion.
                                                             CANTIL-SAKAUYE, C. J.
    WE CONCUR:
    
    KENNARD, J.
    BAXTER, J.
    WERDEGAR, J.
    CHIN, J.
    CORRIGAN, J.
    LIU, J.
    
    
    
    
                                             36
    See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
    
    Name of Opinion Sander v. State Bar of California
    __________________________________________________________________________________
    
    Unpublished Opinion
    Original Appeal
    Original Proceeding
    Review Granted XXX 
    196 Cal. App. 4th 614
    Rehearing Granted
    
    __________________________________________________________________________________
    
    Opinion No. S194951
    Date Filed: December 19, 2013
    __________________________________________________________________________________
    
    Court: Superior
    County: San Francisco
    Judge: Curtis E. A. Karnow
    
    __________________________________________________________________________________
    
    Counsel:
    
    Sheppard, Mullin, Richter & Hampton, James M. Chadwick, Evgenia N. Fkiaras, David E. Snyder and
    Guylyn R. Cummins for Plaintiff and Appellant California First Amendment Coalition.
    
    Jane Roberta Yakowitz; Bostwick & Jassy, Gary L. Bostwick, Jean-Paul Jassy and Kevin L. Vick for
    Plaintiffs and Appellants Richard Sander and Joe Hicks.
    
    Davis Wright Tremaine, Mary Duffy Carolan and John Rory Eastburg for Brentwood Press and
    Publishing Co., California Newspapers Partnership, Calistoga Tribune, Calaveras Enterprise, Champion
    Newspapers, Dailey Republic, Embarcadero Media Inc., Feather Publishing Co., Inc., Freedom
    Communications, Inc., Los Angeles Times Communications LLC, Malibu Times Inc., Marinscope
    Community Newspapers, Mission Viejo News, Inc., Random Lengths News, Sacramento Valley
    Mirror, Santa Maria Times, The Ark Newspaper, The Bakersfield Californian, The McClatchy
    Company, The Mountain Enterprise, The North County Times, The Press-Enterprise, The Viking,
    Valleywide Newspapers, Ventura County Reporter, ALM Media, LLC, The Associated Press, Atlantic
    Media, Inc., Bloomberg News, Cox Media Group, Inc., Dailey News, L.P., E.W. Scripps Company,
    Forbes, Inc., Gannett Co., Inc., Hearst Corporation, NBC Universal Media, LLC, Reuters America
    LLC, Stephens Media LLC, The Newsweek/Dailey Beast Company LLC, The New York Times
    Company, The Washington Post, American Society of News Editors, Association of Alternative
    Newsmedia, Californians Aware, The California Newspaper Publishers Association, National Freedom
    of Information Coalition, The National Press Photographers Association, The Radio Television Digital
    New Association and The Reporters Committee for Freedom of the Press as Amici Curiae on behalf of
    Plaintiffs and Appellants.
    
    Law Office of Judy Alexander and Judy Alexander for Vikram Amar, Jane Roberta Yakowitz and Mark
    Grady as Amici Curiae on behalf of Plaintiffs and Appellants.
    
    Sharon L. Browne, Meriem L. Hubbard and Joshua P. Thompson for Pacific Legal Foundation as Amicus
    Curiae on behalf of Plaintiffs and Appellants.
    Page 2 – S194951 – counsel continued
    
    Counsel:
    
    Center for Constitutional Jurisprudence, John Eastman, Anthony T. Caso, Karen J. Lugo and David
    Llewellyn for Gerald Reynolds, Todd Gaziano, Gail Heriot, Peter Kirsanow and Ashley Taylor, Jr., as
    Amici Curiae on behalf of Plaintiffs and Appellants.
    
    Joshua Koltun for Doug Williams as Amicus Curiae on behalf of Plaintiffs and Appellants.
    
    Kerr & Wagstaffe, James M. Wagstaffe, Michael John Von Loewenfeldt; Starr Babcock, Lawrence C. Yee
    and Rachel S. Grunberg for Defendants and Respondents.
    
    Snell & Wilmer, Mary-Christine Sungaila and Harsh P. Parikh for Multicultural Bar Alliance as Amicus
    Curiae on behalf of Defendants and Respondents.
    
    Reed Smith and Dennis Peter Maio for The Bar Association of San Francisco as Amicus Curiae on behalf
    of Defendants and Respondents.
    
    Eva Paterson, Allison S. Elgart and Fabián Rentería for Equal Justice Society as Amicus Curiae on behalf
    of Defendants and Respondents.
    
    Perkins Coie, Vilma R. Palma-Solana, Sunita Bali; Lim, Ruger & Kim, Bruce Iwasaki and Norma Nava for
    People of Color, Inc., as Amicus Curiae on behalf of Defendants and Respondents.
    
    Bingham McCutchen, William F. Abrams, Patrick T. Weston and Audrey Lo for Dwight Aarons, George
    Acero, Daniel James Alexander II, Charlene Bellinger Honig, Nikki Brown, Peter L. Carr IV, Claudia J.
    Castillo, Eugene Clark-Herrera, Francisco Cortes, Kendra Fox Davis, Lisa Gilford, Marc-Tizoc Gonzalez,
    Rebecca Hall, Sara Jackson, Rasheda Kilpatrick, Parissh A. Knox, Andrea Luquetta, Xochitl Marquez,
    Letitia D. Moore, Shirin Soleman, Angela Crystelle Thomas-Taylor, Anthony J. Tolbert, Erika K. Woods
    and Doe 1 as Amici Curiae on behalf of Defendants and Respondents.
    Counsel who argued in Supreme Court (not intended for publication with opinion):
    
    James M. Chadwick
    Sheppard, Mullin, Richter & Hampton
    Four Embarcadero Center, 17th Floor
    San Francisco, CA 94111-4109
    (415) 434-9100
    
    Jean-Paul Jassy
    Bostwick & Jassy
    12400 Wilshire Boulevard, Suite 400
    Los Angeles, CA 90025
    (310) 979-6059
    
    James M. Wagstaffe
    Kerr & Wagstaffe
    100 Spear Street, 18th Floor
    San Francisco, CA 94105
    (415) 371-8500