University Professor’s Post-Publication Correspondence Subject To Disclosure Under Public Records Act

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Jan 30, 2023

Plaintiff Constance Iloh (Iloh) was an assistant professor at the University of California, Irvine’s (UCI) School of Education. During her time as a UCI professor, Iloh published four research articles related to education matters in a variety of academic journals. From 2017-2018, four of Iloh’s articles were published in journals unaffiliated with UCI. Iloh used her UCI e-mail address to communicate with the journals about her article submissions, which she submitted on her own behalf. The journals later retracted Iloh’s articles based on Iloh’s alleged failure to credit sources she relied on in the articles. A third party investigating Iloh’s alleged plagiarism sent UCI a request under the California Public Records Act (CPRA) seeking certain communications between Iloh, UCI, and the journals regarding the retracted articles. UCI notified Iloh of the CPRA request and told Iloh it would disclose the responsive communications. Iloh argued that the requested communications fell outside the scope of the CPRA and that 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. Iloh disagreed, filed a petition for a writ of mandate, and sought a preliminary injunction to prevent disclosure.

Iloh argued the requested correspondence was not subject to disclosure because it was not a “public record” under the CPRA, and that the requested correspondence was exempt from disclosure under the CPRA’s catchall exemption and the exemption for personnel files. Iloh also asserted that academic freedom would be stifled if UCI allowed professors’ informal communications to be broadly available, and the production of her correspondence would reduce her willingness to work for public institutions in the future. The trial court denied Iloh’s motion for a preliminary injunction, concluding she had not shown the requested records are not “public records” under the CPRA, and because she had not established the records were otherwise exempt from disclosure. Iloh appealed.

The Court of Appeal for the Fourth District agreed with the trial court. The Court of Appeal found that the requested communications were public records subject to disclosure under the CPRA. 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” and states that “every person has [the] right to inspect any public record,” except those records expressly exempted from disclosure.

In reaching its decision, the Court of Appeal stated that the articles at issue did not concern personnel matters unrelated to Iloh’s job as a professor. Rather, the articles discussed topics directly relevant to her field of study at UCI’s School of Education and were published in journals devoted to that same field of study. Therefore, the personnel exemption did not apply. The Court of Appeal also declined to apply for the catchall exemption because it concluded that the public interest in the disclosure of those communications outweighed any privacy concerns. It stated that 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 v. Regents of the University of California (2023) G060856.

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