Muchnick on ‘This Week’ on RTE Network in Ireland Discussing FOIA Case For George Gibney’s American Immigration Records
September 25, 2016Cal Football Strength and Conditioning Program Review Launch Delayed Another Week
September 27, 2016
“Table of Contents of the New eBook ‘TED AGU PAPERS’,” https://concussioninc.net/?p=11367
Amazon Kindle link: http://amzn.to/2aA2LDl
“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
by Irvin Muchnick
The University of California-Berkeley’s office for compliance with the state Public Records Act has blown the latest of its own stated deadlines for responding to Concussion Inc.’s request for internal documents on the football program’s 2013 player-on-player criminal assault and 2014 death of Ted Agu.
Granted, these were not hard deadlines, but rather “estimates.” But the university’s ill-explained zigs and zags in responses to a PRA request dating back to April show, at this point, bad faith, if not contempt, with regard to its public information legal obligations.
I made this point in an email last Friday to UC system president Janet Napolitano and other officials. The text is below. There has been no response.
At § 6253(c), the California code allows that, under unusual circumstances, the time limit prescribed for response to a public records request may be extended by written notice. The notice must set forth the reasons for the extension and the date on which a determination is expected to be dispatched. Though, technically, a notice should specify a date that would result in an extension for more than 14 days, common-sense principles apply to execution in complex cases. In my opinion and that of legal experts, UC-Berkeley’s actions here now defy common sense.
All this occurs in the context of Concussion Inc.’s most recent reporting of the full text of whistleblower former player Joey Mahalic’s previously suppressed statements to campus police a month after Agu’s death.
Cal last week told us that there likely would be an announcement this week with more substance on Chancellor Nicholas Dirks’ June promise of a second internal review of the football strength and conditioning program — after the original review, in June 2014, was widely criticized as a whitewash
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[text to UC President Napolitano]
I believe the California Public Records Act (PRA) office on your Berkeley campus has been non-compliant with the statute’s implied requirement of good faith in the processing of a request now dating back half a year. And absent the constructive intervention of your office, I believe the state courts would agree with me.
I am cc’ing UCOP’s general counsel, who is familiar with the full record of my correspondence with the Berkeley PRA office. I also am cc’ing UCOP’s senior vice president for ethics, compliance, and audit services, as well as the PRA coordinator and chief campus counsel at Berkeley.
On April 6, 2016, I submitted a request to the Berkeley PRA office for “any and all written records, reports, or emails dealing with any internal investigation within the University of California-Berkeley of the facts surrounding (a) the death of Ted Agu; and (b) an altercation between football players J.D. Hinnant and Fabiano Hale, which occurred on or around November 1, 2013.”
On April 11, the Berkeley PRA office acknowledged receipt.
On July 21, the Berkeley PRA office released a single document responsive to this request, and added: “We are continuing our collection and review of documents for records that are responsive to your request. We will continue to provide records on a rolling basis, as they become available.”
On August 23, in response to a follow-up query, the Berkeley PRA office said: “The current estimated production date is 2-4 weeks.”
On September 20, with the passing of the four-week mark since August 23, I followed up with the Berkeley PRA office and received no response.
On September 21, I followed up with the Berkeley chief campus counsel and received no response.
On September 22 — yesterday — I followed up with Mr. Robinson, the UCOP counsel. Thirty-one minutes later, I received an email from the Berkeley PRA office stating simply: “The current estimated production date is 4-6 weeks.”
I wrote back to Ms. Ko, the Berkeley PRA coordinator: “Do you mean 4-6 weeks from today, September 22? In other words, some time between late October and early November? Please clarify. On August 23 you said 2-4 weeks. If there is a discrepancy, I think it needs to be explained to my readers.”
Ms. Ko responded: “We are providing estimated production date from today, although this may vary due to the nature and complexity of the request. Please also bear in mind that we are concurrently fulfilling numerous other requests and inquires, many of which were received before yours and that we generally process requests in the order in which they are received.”
As a footnote, I point out that it is currently impossible to verify the Berkeley PRA office’s assertion that it “generally” processes requests in order. A separate PRA request for copies of all requests to the Berkeley PRA office, from April through July of this year, was similarly interrupted “midstream.”
Though the California PRA law obviously allows, at the level of logistics, reasonable discretion in the timely processing of requests, the legal experts with whom I have consulted share my view that the law in no way gives a public agency license to provide incoherent explanations of its production timeline or to repeatedly and capriciously “move the goal posts.”
(If the University should have claims with respect to exemptions of particular items in its potential production, then you are obliged to state them clearly and specifically. Such claims would not seem to include that relevant records pertain to pending litigation, since the Ted Agu family settled its civil wrongful death lawsuit against the Regents earlier this year.)
President Napolitano, I submit that at this point you should direct the Berkeley PRA office to comply with the law and release the pertinent records to me without further delay.