Court of Appeal:
UC’s Correspondence With Employee Is ‘Public Record’
Opinion Says Communications Related to Alleged Plagiarism by Assistant Professor Is Subject to Disclosure Under Public Records Act; Personnel Files Exemption and Catchall Exemption Don’t Apply
By a MetNews Staff Writer
Correspondence between a state university and an assistant professor concerning allegations that four articles of hers that had been published by scholarly journals contained plagiarized material are public records that must be produced in response to a request, Div. Three of the Fourth District Court of Appeal held Friday.
Acting Presiding Justice Thomas M. Goethals wrote the opinion which affirms an order of the Orange Superior Court denying a preliminary injunction sought by plaintiff Constance Iloh. The order was made by retired Kern Superior Court Richard J. Oberholzer, sitting on assignment.
Iloh maintained that the correspondence is not a “public record,” subject to potential disclosure under the California Public Records Act (“CPRA”). But even if it is a public record, she argued, it is subject to the exemption for the content of personnel files, as well as a “catchall exemption” which applies where “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 plaintiff had been employed by the University of California, Irvine (“UCI”) from 2015 until she departed from her post in 2021. Making the request under the CPRA was Retraction Watch, a publication of the nonprofit Center for Scientific Integrity (“CSI”), which describes its mission as being that of promoting “transparency and integrity in science and scientific publishing, and to disseminate best practices and increase efficiency in science.”
Wording of Request
That Sept. 9, 2020 request said, in part:
“Under the California Public Records Act (CPRA), I am requesting copies of the correspondence between the University of California, I[r]vine (UCI) and Constance Iloh, Assistant Professor School of Education, as they pertain to articles published in the following journals: [¶] Journal of Latinos and Education; [¶] Journal of Student Affairs; [¶] Journal of Adult and Continuing Education; [¶] Harvard Educational Review. [¶] I am also requesting copies of the correspondence between the University of California, I[r]vine (UCI) or Constance Iloh, Assistant Professor School of Education, between the above four journals as they pertain to articles (co)authored by Constance Iloh.”
When the university indicated its willingness to turn over most of the documents that were responsive to the request, Iloh brought a reverse-CPRA action to block disclosure.
Contentions on Appeal
In appealing Oberholzer’s adverse ruling, Iloh asserted:
“Since appellant is not a public official, her emails and correspondences cannot constitute writings of a public official open to public scrutiny,” adding:
“Although Appellant is not a public official whose writings are open to public scrutiny, this Court should also reverse the trial court because the records which CSI seeks cannot possibly constitute public records.”
She also maintained:
“[T]the Public Records Act does not diminish a public employee’s reasonable expectation of privacy in workplace computers or emails particularly where, as with the sought records, there is no evidence suggesting public record requests of professors at UCI were widespread or frequent as to constitute an atmosphere to employees or the public which disabled any expectation of privacy.”
The regents of the University of California did not file a respondent’s brief.
CSI, as real party in interest, argued that “[t]he balance of harms strongly favors disclosure,” adding:
“The Center for Scientific Integrity broadly has an interest in transparency in academic publishing and good public policy deserves to know the context surrounding the mysterious retractions and corrections.”
It made this point:
“While the records sought do not directly regard the UC’s use of public funds, the issue is nonetheless implicated where, as here, there is evidence of a violation of University policy and an employee separation. The records could shed light on how the UC and UCI chose to expend public resources to hire and then investigate claims from the journals that published Iloh’s work, which likely ultimately led to her separation.”
In his opinion affirming the denial of Iloh’s request for a preliminary injunction, Goethals said:
“[W]e 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….
“In sum, the postpublication communications by a professor at a public university regarding articles she authored on topics in her field of study at the university involve the ‘public’s business.’ ”
Personnel Files Exemption
The CPRA’s exemption for personnel files does not apply, Goethals declared, explaining:
“[K]eeping 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 UCF’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….”
Declining to apply the catchall exemption, the jurist noted:
“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.”
The exemption will justify the withholding of records only if there is shown to be a “clear overbalance” in favor of nondisclosure, Goethals said, commenting:
“…Considering the notable public interests supporting disclosure…, and narrowly construing the exemption as we must…, we conclude Iloh did not meet that burden.”
Goethals said in a footnote:
“We have not reviewed the contested records because they are not part of our record. Nothing in this opinion should be construed to suggest we find that Iloh actually committed plagiarism or otherwise violated university policy.”
The case is Iloh v. Regents of the University of California, G060856.
Iloh was represented by downtown Los Angeles attorney Elvin Itah Tabah. The University of California’s general counsel, Michael Robert Goldstein, put forth the regents’ position, and Kelly Aviles and Shaila Nathu of the Law Offices of Kelly Aviles in La Verne acted for UCI.
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