Iloh v. Regents of the Univ. of Cal.

87 Cal.App.5th 513

303 Cal.Rptr.3d 709

Constance ILOH, Plaintiff and Appellant,

v.The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Respondent;

The Center for Scientific Integrity, Inc., Real Party in Interest and Respondent.

G060856

Court of Appeal, Fourth District, Division 3, California.

Filed January 13, 2023

Tabah Law and Elvin I. Tabah, for Plaintiff and Appellant.

Michael R. Goldstein, for Defendant and Respondent.

Law Offices of Kelly Aviles, Kelly Aviles, La Verne, and Shaila Nathu, for Real Party in Interest and Respondent.

OPINION

GOETHALS, ACTING P. J.

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) ( Gov. Code,¹ § 7920.000 et seq. ) 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 trial court denied the professor's motion for preliminary injunction, concluding she had not met her burden of establishing a likelihood of prevailing on the merits. Finding no abuse of discretion, we affirm. As explained below, the requested communications qualify as public records under the CPRA, and the professor did not establish the records are otherwise exempt from disclosure.

FACTS

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.² 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.

The Regents filed a statement of nonopposition to Iloh's ex parte application; it advised that the campus's privacy officer had determined certain records were responsive and nonexempt, but the Regents would nevertheless refrain from releasing the records until the trial court adjudicated Iloh's application. The Regents also requested an order requiring Iloh to give notice of the proceedings to CSI.

In light of the Regents’ stipulation not to release the records, the trial court denied Iloh's application for a temporary restraining order, set a hearing date for a motion for preliminary injunction, and ordered Iloh to serve any motion for preliminary injunction on CSI.

Shortly thereafter, Iloh apparently left her position at UCI. In July 2021, Iloh filed an amended petition naming CSI as a real party in interest and removing UCI as a respondent. She then filed a motion for preliminary injunction enjoining the Regents from disclosing the requested records to CSI. Iloh argued the requested correspondence was not subject to disclosure because it was not a "public record" under the CPRA, and in any event the correspondence was exempt from disclosure under the CPRA's catchall exemption and the exemption for personnel files. (We discuss these statutory provisions in greater detail below.) Iloh also asserted that academic freedom is important to her and other professors, their academic work would be stifled if they were concerned that informal communications would be made broadly available, and the production of her correspondence would reduce her willingness to work for public institutions in the future.

The Regents again filed a statement of nonopposition. CSI opposed the motion, asserting the requested records are "public records" under the CPRA, Iloh has no reasonable expectation of privacy in the records, and any diminished privacy right is outweighed by the public's interest in understanding how a publicly funded university like UCI responds to complaints of plagiarism and academic dishonesty.

After hearing oral argument, the trial court denied Iloh's motion for preliminary injunction, finding Iloh had not established a likelihood of prevailing on the merits because she had not shown the requested records are not "public records" under the CPRA, nor had she established the records are otherwise exempt from disclosure. Iloh appeals from that order. (See Code Civ. Proc., § 904.1, subd. (a)(6) [order denying an injunction is appealable].)

DISCUSSION

1. Guiding Principles

" ‘As its name suggests, a preliminary injunction is an order that is sought by a plaintiff prior to a full adjudication of the merits of [her] claim. [Citation.] To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence of the irreparable injury or interim harm that [she] will suffer if an injunction is not issued pending an adjudication of the merits.’ [Citation.] ‘In deciding whether to issue a preliminary injunction, a trial court weighs two interrelated factors: the likelihood the moving party ultimately will prevail on the merits, and the relative interim harm to the parties from the issuance or nonissuance of the...