by Irvin Muchnick
All of us — Concussion Inc., the San Francisco Chronicle, faculty critics at the University of California-Berkeley, opponents and defenders of football coach Sonny Dykes’ strength and conditioning assistant Damon Harrington — have been talking a lot about a mysteriously set aside March 2014 report of the campus police, which in turn was based on a volunteered statement to the cops by Joey Mahalic, a former player.
There’s no doubt as to the contours of Mahalic’s statement. In his deposition in the university’s $4.75 million civil lawsuit settlement with the Agu family, Mahalic paraphrased what he told the cops. I published deposition excerpts on April 23. THE TED AGU PAPERS, which will be published next month, includes the facsimile of the complete deposition transcript, among many other documents.
Yet the record of Mahalic’s statement to UCPD, and how the cops processed it, remains hidden.
The university’s California Public Records Act (CPRA) office has denied our request for this document on the grounds that law enforcement agency records are exempt. And that’s a decent point.
Currently, the Alameda County district attorney office is considering our request for a more detailed description of the document, if not the document itself; CPRA enumerates categories of information that public agencies are obliged to reveal from even exempt material. (D.A. Nancy O’Malley and her staff themselves never saw the UCPD report until this month. The campus force did not forward it to prosecutors at the time.) O’Malley’s spokesperson, Teresa Drenick, said she would get back to us in the next week or so.
The San Francisco Chronicle, in its equivocal coverage of the cover-up of Agu’s February 2014 death and of the November 2013 assault of another player, Fabiano Hale, by teammate J.D. Hinnant, does appear to have the police report. On June 30 the newspaper referred to “a transcript” of Mahalic’s “March 2014 interview with the police, obtained by The Chronicle.” The story went on to quote briefly from it — though, again, not to publish the full report or to tell its readers the context of the processing of the information by UCPD.
This reporter, who has a long and successful record in public information legal disputes, is contemplating a lawsuit in state court to compel production of the police report. Several legal experts have counseled me that such litigation would be a long shot. They cite a defining 1993 case, Williams v. Superior Court, which made the police record exemption under CPRA all but ironclad. As one expert, whom I greatly respect, joked, “In California, Mrs. Lincoln herself wouldn’t have been able to acquire the police report of John Wilkes Booth’s shooting of her husband at Ford’s Theatre.”
It’s a sobering thought. Still, I’m not sure that under the present circumstances, seeking to chip away at the Williams standard would be quite as quixotic as many believe. The reason can be found in the section entitled “waiver” in a guide to CPRA published by the League of California Cities.
“Generally,” the guide states, “whenever a local agency discloses an otherwise exempt public record to any member of the public, the disclosure constitutes a waiver of most of the exemptions contained in the Act for all future requests for the same information.”
Here, the Chronicle has not disclosed its source for the UCPD report. But assuming that the document wasn’t stolen, either it was handed over willingly or it was leaked. And even a leak, in my view, could have effect of mooting exemptions on requests for the same document by other members of the public. Disclosure to one is disclosure to all.
Testing this principle would be interesting, and win or lose, not without value. The biggest argument in my favor is that I would not be exploiting the public record to further a commercial interest — all royalties from THE TED AGU PAPERS are pledged to charitable organizations working on research for sickle cell trait, of which Agu died.
The public’s right to know how King Football might be skewing criminal justice constitutes the one and only interest served by disclosure of documents that would allow deeper scrutiny of the handling of Hinnant’s criminal attack on Hale, and of Agu’s misleadingly disclosed death — both of which place Damon Harrington at the center.
“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:
Installments in “THE TED AGU PAPERS” series: