Judge Sets ‘Framework’ For Listing Documents in California Public Records Act Lawsuit For UC Berkeley Administrators’ Documents Relating to 2014 Ted Agu Football Death

by Irvin Muchnick

For now, the University of California Regents do not have to produce a listing of the documents related to the 2014 death of Cal football player Ted Agu that are being withheld from Concussion Inc. in our California Public Records Act (CPRA) lawsuit. However, at a hearing today, Alameda County Superior Court Judge Jeffrey S. Brand set up what he called a “framewortk” for resolving an impasse over the public information litigation device known as a Vaughn Index.

Brand directed the parties to confer further and provide the court with a joint report by May 10. There will be another hearing on May 17. A tentative ruling issued earlier this week, and being held open, contains elements validating the positions of both sides.

At the hearing, the judge sided partially with the university in its claim that the Federal Educational Records Privacy Act (FERPA) bars production of a Vaughn as our document requests were originally framed. Brand also expressed some sympathy with our contention that the purpose of the document requests is not FERPA-protected personal information regarding Agu or the two other players involved in a physical altercation three months prior to Agu’s death; rather, the purpose is to shed light on the alleged incitement of this player fight by Damon Harrington, the strength and conditioning coach under then Bears head coach Sonny Dykes, and on reports that this incident was part of a pattern of abuses in the program culminating in the unorthodox conditioning drill during which Agu perished.

Brand ordered the parties to try to figure out jointly “how to best define categories of responsive and arguably FERPA exempt documents.” At the conclusion of this process, “The court could then either order production of categories or order the Regents to prepare a Vaughn index for the categories where the individual documents are more likely than not subject to disclosure.”

Brand emphasized that he was not addressing or deciding the merits of whether any responsive public record is  exempt under the CPRA. His order “simply sets a framework for the parties to present the merits to the court” and enable the court to determine, on a category-by-category basis, whether a Vaughn Index is the appropriate next measure.

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Concussion Inc.’s ebook THE TED AGU PAPERS: A Black Life That Mattered — And the Secret History of a Covered-Up Death in University of California Football is available on Kindle-compatible devices at http://amzn.to/2aA2LDl. All royalties are being donated to sickle cell trait research and education.

Op-ed article for the Daily Californian on my Public Records Act lawsuit: http://www.dailycal.org/2017/04/25/lawsuit-uc-regents-emblematic-issues-facing-college-football/

“Explainer: How ‘Insider’ Access Made San Francisco Chronicle and Berkeley J-School Miss Real Story Behind Death of Cal Football’s Ted Agu,” https://concussioninc.net/?p=10931

Complete headline links to our Ted Agu series: https://concussioninc.net/?p=10877