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Right of Access

Correspondence About UC Irvine Professor's Alleged Plagiarism Is Public Record, Subject to Disclosure

Retraction Watch prevails in a California appellate case.


From Iloh v. Regents, decided Friday by the California Court of Appeal (Justice Thomas Goethals, joined by Judges Maurice Sanchez and Joanne Motoike):

An assistant professor at a public university submitted four articles on topics in her field of study to various academic journals unaffiliated with her university. All four of those articles were later either retracted or corrected by the journals, at least in part due to inaccurate references or text overlap from uncited sources. Soon after that, the professor left her position at the university.

A third party investigating the article retractions sent the university a request under the California Public Records Act (CPRA) seeking certain postpublication communications between the professor, the university, and the journals regarding the retracted articles. The university determined the requested documents were subject to disclosure; the professor disagreed, filed a petition for writ of mandate, and sought a preliminary injunction to prevent disclosure….

"The [C]PRA, enacted in 1968, grants access to public records held by state and local agencies. [Citation.] Modeled after the federal Freedom of Information Act, the [C]PRA was enacted for the purpose of increasing freedom of information by giving members of the public access to records in the possession of state and local agencies. [Citation.] Such 'access to information concerning the conduct of the people's business,' the Legislature declared, 'is a fundamental and necessary right of every person in this state.'"

Consistent with that fundamental right of access to information, the CPRA dictates that "every person has [the] right to inspect any public record," except those records expressly exempted from disclosure. The CPRA broadly defines '"public records'" to include "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency." [The California] Constitution requires that these provisions furthering the people's right of access to information be "broadly construed."

"Nevertheless, the act does not confer an absolute right of access. As part of the CPRA, the Legislature included a provision declaring it was 'mindful of the right of individuals to privacy.' [Citation.] This express policy declaration '"bespeaks legislative concern for individual privacy as well as disclosure."'"

To balance those competing goals of privacy and public access, the CPRA includes numerous exemptions that permit public agencies to refuse disclosure of certain public records. For example, section 7927.700 exempts from disclosure any "personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." Additionally, a catchall exemption permits a public agency to withhold records if it can demonstrate "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."…

The Requested Records Are Public Records

Applying those authorities here, we first must determine whether the requested records are public records subject to disclosure under the CPRA. As noted, unless an exemption applies, the CPRA requires disclosure of any "public record," which the act defines as "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency." The parties do not dispute that UCI, as a public university, qualifies as a state agency. Further, the requested correspondence was sent and received using UCI e-mail addresses and therefore is "owned, used, or retained" by a state agency. The controlling question, therefore, is whether the requested documents "contain[ ] information relating to the conduct of the public's business" within the meaning of the CPRA. …

Broadly construing [the CPRA] as our Constitution requires, we conclude the trial court did not abuse its discretion in finding the requested communications are public records. The articles at issue did not concern personal matters unrelated to Iloh's job as an assistant professor; they discussed topics directly relevant to her field of study at UCI's School of Education, and they were published in journals devoted to that same field of study. Although the requested communications are not before us, we can reasonably infer from the record that at least some of those communications concern whether Iloh committed plagiarism or otherwise violated university policies on academic integrity—an issue tied to the use of public funds….

The Catchall Exemption

That brings us to whether the requested documents are otherwise exempt from disclosure. On this issue, Iloh primarily invokes the CPRA's catchall exemption, which permits a public agency to withhold records if "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." …

CSI identifies several public interests supporting disclosure: (1) public funds are used both to pay UCI assistant professors like Iloh and also to investigate alleged academic dishonesty, (2) academic research culminating in publication is central to UCI's public function and within Iloh's job duties, and (3) the public has an interest in understanding how UCI addresses allegations of academic dishonesty. We agree. There is a strong public interest in knowing how a public university funded largely by taxpayer dollars handles and resolves quality or integrity problems in its professors' publications.

Iloh counters that those interests are outweighed by the public interest in protecting academic freedom. According to Iloh, disclosure of her e-mails would stifle her research, create an intolerable danger to the freedom of intellect and academic expression, and discourage teachers and academics from seeking employment with public institutions.

We believe Iloh's concerns about academic freedom are legitimate. We can imagine how allowing unrestricted access to a university professor's research files could hamper the academic process. Our colleagues in the Third District [have] concluded that the disclosure of prepublication communications about a university study on the effects of a proposed voter initiative "would fundamentally impair the academic research process" and have a "chilling effect" on academics; the court therefore found that the public interests in nondisclosure outweighed the public interests in disclosure of those prepublication records.

{The California Legislature is undoubtedly aware of these concerns. However, unlike public records acts in various other jurisdictions, the "CPRA does not have an express exemption for general academic research." Several years ago, the Legislature considered adding to the CPRA an exemption for public postsecondary educational institutions' research records, but that bill died in early 2020.}

But such concerns do not apply to this case. The articles at issue here were published in 2017 and 2018, and the CPRA request only seeks correspondence from January 2019 onward. Thus, the requested documents would not reveal Iloh's prepublication research, article drafts, work product, or communications….

We are not suggesting the public has or should have carte blanch access to a university professor's research files, work product, or correspondence. As noted, the application of the catchall provision is by design fact dependent. In some instances, the facts may compel disclosure, while in other instances, academic research "may be protected [from disclosure], depending on the facts of [the] case." We find that in this particular case, based on this record, Iloh did not meet her burden of establishing "a 'clear overbalance' on the side of nondisclosure."

The Personnel Files Exemption

Iloh alternatively argues certain portions of the requested records are exempt from disclosure under section 7927.700, which exempts "personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy."

This exemption was "'"developed to protect intimate details of personal and family life, not business judgments and relationships."'"

Applying those standards to this case, and keeping in mind that the CPRA's exemptions must be narrowly construed, we conclude the trial court did not abuse its discretion in finding the personnel files exemption inapplicable here. First, it is not clear that the CPRA request encompasses UCI's personnel file on Iloh; the request asks for "correspondence," not personnel records. Second, to the extent copies of any of the responsive communications were placed in Iloh's personnel file (something we cannot determine from the record), we conclude the public interest in disclosure of those communications outweighs any privacy concerns for the same reasons articulated above….

Some more factual background on the particular research here:

Constance Iloh has a Ph.D. in Urban Education Policy. She was employed at the University of California, Irvine (UCI) from 2015 to 2021, first as a postdoctoral fellow, and then as an assistant professor in UCI's School of Education. According to Iloh, her job duties as assistant professor included giving class lectures and conducting education-related research.

During her time as a UCI professor, Iloh published multiple research articles on education in a variety of academic journals. At issue here are four such articles published in journals unaffiliated with UCI: (1) Paving effective community college pathways by recognizing the Latino post-traditional student (2018) in the Journal of Latinos and Education; (2) Not non-traditional, the new normal: adult learners and the role of student affairs in supporting older college students (2017-2018) in Colorado State University's Journal of Student Affairs; (3) Toward a new model of college 'choice' for a Twenty-First-Century context (2018) in the Harvard Educational Review; and (4) Does distance education go the distance for adult learners? Evidence from a qualitative study at an American community college (2018) in the Journal of Adult and Continuing Education.

The articles all dealt with topics in Iloh's field of study at UCI (education), and Iloh used her UCI e-mail address to communicate with the journals about her article submissions. However, Iloh submitted the articles on her own behalf, not on behalf of UCI; the articles were not part of any study paid for by UCI; the articles did not contain UCI's imprimatur; and UCI had no ownership interest in the articles.

After the articles were published, an anonymous source reportedly e-mailed the four journals and demanded the articles be retracted. As a result, all four articles were either retracted or corrected by the journals in which they were published: the Journal of Latinos and Education retracted Iloh's article in full; the Journal of Student Affairs removed Iloh's article and the entire issue in which it was published; the Harvard Educational Review issued an errata statement; and the Journal of Adult and Continuing Education issued a correction. Again, in communicating with the journals about the retractions, Iloh used her UCI e-mail address.

Although it is not entirely clear from the record, it appears the retractions occurred due to concerns about possible plagiarism or inaccurate citation references in Iloh's articles. For example, the Journal of Latinos and Education's retraction explained Iloh's article "contain[ed] a substantial amount of text overlap with [various] sources, which were either inaccurately referenced or not referenced within the article." Similarly, the Harvard Educational Review's errata statement cited "multiple instances in which the author incompletely attributed previously published material in the introduction and literature review." And the Journal of Adult and Continuing Education's correction explained that "[s]ections throughout the original manuscript have been rewritten and updated and this manuscript also includes new references."

The retractions caught the attention of Retraction Watch, an editorially independent organization that maintains a database of article retractions in scientific journals, covers incidents of particular note, and reports on academic publishing, transparency, and accountability. Retraction Watch is published by the Center for Scientific Integrity (CSI), a nonprofit public benefit corporation whose mission is "to promote transparency and integrity in science and scientific publishing, and to disseminate best practices and increase efficiency in science."

In August 2020, Retraction Watch published an article about Iloh's papers; the article reported the papers had been "retracted and corrected, for plagiarism and misuse of references." The following month, to further its investigation, Retraction Watch sent a CPRA records request to UCI seeking all correspondence from January 2019 onward (1) between UCI and Iloh regarding articles published in the four journals, and (2) between UCI or Iloh and the four journals regarding articles authored by Iloh.

UCI notified Iloh of the CPRA request and its intent to disclose the responsive records. Iloh responded that the requested records fell outside the scope of the CPRA and argued the request violated her privacy rights. UCI agreed to remove a few records from its production, but maintained it would disclose the remaining records absent a court order.

In April 2021, Iloh filed a verified petition against UCI and the Regents of the University of California (the Regents) for writ of mandate, declaratory relief, and injunctive relief to prevent disclosure. She did not name CSI as a real party in interest. Iloh also filed an ex parte application for a temporary restraining order enjoining UCI and the Regents from disclosing the records until her petition could be heard.

Congratulations to Kelly Aviles and Shaila Nathu, who represented the Retraction Watch people.