Update on Disputed Public Documents Related to Ted Agu Death in University of California Football

“eBook Bonus: Introduction to ‘Ted Agu Papers,’ Cal Football Death Cover-Up,” https://concussioninc.net/?p=11359

“Table of Contents of the New eBook ‘TED AGU PAPERS,” https://concussioninc.net/?p=11367

Amazon Kindle link: http://amzn.to/2aA2LDl

by Irvin Muchnick

After some prodding, the University of California-Berkeley compliance office for public records requests this week gave us a two-to-four-week estimate for documents it previously had only said would be released “on a rolling basis.” Our request for internal university records on the November 1, 2013, beating of player Fabiano Hale by teammate J.D. Hinnant dates back to April of this year.

The other key current California Public Records Act issue surrounds the denial of Concussion Inc.’s request for the March 2014 campus police report — a month after the death of Ted Agu — in which Joey Mahalic gave a full statement with details on the Hinnant-Hale incident.

Both UC and the Alameda County district attorney’s office (which did not receive the report at the time, and asked to have it forwarded only in the wake of our reporting) have denied access to the document on the grounds that law enforcement records are exempt under CPRA. However, Concussion Inc.’s legal research indicates that another principle, selective disclosure, might waive that exemption. (The San Francisco Chronicle has reported that it acquired the report, though the newspaper inexplicably has not published it.)

A recent California Supreme Court opinion, Ardon v. City of Los Angeles, held that “inadvertent” disclosure of an otherwise exempt document did not waive the exemption. But the court also stated that there is a difference between inadvertent and selective disclosure:

“Our holding that the inadvertent release of exempt documents does not waive the exemption under the Public Records Act must not be construed as an invitation for agencies to recast, at their option, any past disclosures as inadvertent so that a privilege can be reasserted subsequently. This holding applies to truly inadvertent disclosures and must not be abused to permit the type of selective disclosure section 6254.5 prohibits.”

We are closely studying other pertinent case law with a view toward litigating this issue.