Our two-year fight for the release of public records

In September 2020, we requested records from the University of California, Irvine, regarding four papers by an assistant professor of education that had been retracted, corrected, or taken down. 

The retraction and correction notices for the articles, written by Constance Iloh, mentioned plagiarism and misuse of references. After our initial reporting, we wanted to see if we could learn more about what happened. 

It took approximately two and a half years for us to obtain the records, detailed in this post. The emails we obtained shed light on the processes three journals took after concerns were raised about Iloh’s work, and how she responded – including with legal threats. 

Here, we tell the story of how we fought in court to get the records, represented by Kelly Aviles, who specializes in cases involving the California Public Records Act and has successfully sued on behalf of the Los Angeles Times

On Sept. 8, 2020, we asked UCI for copies of correspondence between the university and Iloh related to the journal articles, and correspondence between the university or Iloh with the journals. 

UCI planned to release the records to us on April 30, 2021, but Iloh filed suit to stop the release, arguing “the correspondences do not relate to conduct of the public’s benefit, Petitioner has a reasonable expectation of privacy, and the balance of interests favors nondisclosure.” UCI agreed not to release the records until the court ruled on the case.

In July, Iloh re-filed her suit naming the Center for Scientific Integrity (CSI), Retraction Watch’s parent nonprofit, as a “real party of interest.” In a legal filing opposing Iloh’s request for a preliminary injunction to prevent UCI from disclosing the records, Aviles argued that the requested correspondence is indeed a public record, and Iloh can’t “demonstrate any recognized privacy right in the emails related to her alleged wrongdoing.”  

That November, a judge denied Iloh’s request for a preliminary injunction, and Iloh appealed the decision. 

In January of this year, the appeals court affirmed the decision. Iloh’s appeal rights ended in April, after which UCI released the records to us. 

We also filed an anti-SLAPP motion, under California’s version of a law to “provide defendants a way to quickly dismiss meritless lawsuits—known as ‘SLAPPs’ or ‘Strategic Lawsuits Against Public Participation’—filed against them for exercising their First Amendment rights.”

The trial court judge denied our motion, but the appeals court reversed the denial and sent the matter back to the trial court for further analysis. The decision stated: 

By targeting and seeking to impede CSI’s newsgathering activity, Iloh’s petition threatens to chill CSI’s speech-related processes like newsgathering; if successful, this could inhibit CSI’s exercise of free speech. This is the type of lawsuit the anti-SLAPP statute is designed to address, and it should be stricken if Iloh cannot demonstrate a probability of prevailing on her petition.

The appeal court’s decision that the anti-SLAPP statute applies to our case “is essentially a game changer” for legal cases to prevent the disclosure of public records, Aviles said. “Ensuring the anti-SLAPP statute applies is critical,” and if the decision stands, she expects everyone facing such a suit to invoke the statute. 

Iloh has asked for California’s Supreme Court to review the decision, but the court has not yet decided whether to do so. 

In the meantime, we’ve paid about $4,000 in filing and other court fees. If you would like to help us defray those costs, please make a U.S. tax-deductible donation here.

The long court battle for the release of public records is “not the way any of this is supposed to work,” Aviles said, but “unfortunately way too common.” 

“The public is entitled to this information, she has no basis to stop disclosure, and yet here we are, years later,” she said.

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