Full Text of Complaint in California Public Records Act Lawsuit ‘Muchnick v. University of California’

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Muchnick Sues University of California For Additional Public Records in 2014 Death of Football Player Ted AguPublished April 18th, 2017

Below is the full text of Irvin Muchnick’s complaint in the new California Public Records Act lawsuit against the University of California. A facsimile of the filing in Alameda County Superior Court is viewable at http://muchnick.net/cpracomplaint.pdf orhttps://drive.google.com/open?id=0B4sPj0cCUaDfTnVCWG52VjF5LVU.

Under Code of Civil Procedure §§ 1085 et seq. and the California Public Records Act, Government Code §§ 6250 et seq., petitioner Irvin Muchnick (“Petitioner”) petitions this Court for a writ of mandate directed to respondent University of California, Board of Regents (“The Regents” or “Respondent”), commanding The Regents to comply with the California Public Records Act (“Public Records Act” or “CPRA”).

In support of this Petition, Petitioner alleges:

1. Petitioner is a freelance author and journalist. He is author of three books and hundreds of articles in major magazines and newspapers, including The New York Times Magazine, The Los Angeles Times Magazine, Sports Illustrated and The Washington Monthly. Petitioner is a resident of the City of Berkeley in the County of Alameda. As such, Petitioner is within the class of persons beneficially interested in The Regents’ performance of their legal duties. In ruling in Petitioner’s favor in Muchnick v. Department of Homeland Security, 2016 WL 7101507 (N.D. Cal.), Case No. 3:15 cv – 03060 CRB, a federal Freedom of Information Act case, the Honorable Charles R. Breyer, Senior Judge of the Northern District of California, called Petitioner “an accomplished journalist.” The government appealed the decision and that case is pending before the Ninth Circuit Court of Appeals as this Petition is being filed.

2. Respondent University of California, Board of Regents is the governing body of the University of California established under Article IX, Section 9 of the California Constitution. As such, Respondent is a government agency within the scope of the CPRA, and may be compelled to release improperly-withheld public records. See Cal. Gov’t Code § 6252(f).

3. On November 1, 2013, a student-athlete on the intercollegiate football team at the University of California, Berkeley (“UC Berkeley”) was hospitalized following a beating administered by a teammate (“November 1, 2013 Incident”). Public controversy ensued over whether the November 1, 2013 Incident had been incited by Damon Harrington, then the football team’s assistant coach for strength and conditioning (“Harrington”). Attached as Exhibit A is a true and correct copy of a contemporaneous account of the November 1, 2013 Incident in the San Francisco Chronicle. Attached as Exhibit B is a true and correct copy of a contemporaneous account of the November 1, 2013 Incident at Petitioner’s website, https://concussioninc.net (“Concussion Inc.”).

4. On February 7, 2014, another student-athlete on the UC Berkeley football team, Ted Agu (“Agu”), died during a conditioning drill directed by Harrington (“Agu Death”). In 2016, The Regents acknowledged negligence in the Agu Death and settled a civil lawsuit for $4.75 million (“Agu Settlement”). Attached as Exhibit C is a true and correct copy of the account of the Agu Settlement in the San Francisco Chronicle.

5. Petitioner, at his Concussion Inc. website and blog, has driven deeper reporting and analysis of public policy questions surrounding the November 1, 2013 Incident, the Agu Death and the Agu Settlement. These questions include, inter alia, factual and interpretive links between the November 1, 2013 Incident and the Agu Death; the roles of the UC Berkeley campus police department (“Campus Police”) and the Alameda County District Attorney’s Office in investigating and weighing possible criminal charges in association with the November 1, 2013 Incident; documentation of UC Berkeley’s withholding of information from the Office of the Alameda County Medical Examiner during Agu’s autopsy; and general issues concerning UC Berkeley administration and oversight of Harrington, the football team strength and conditioning program, and the football program generally. Attached as Exhibits D and E are true and correct copies of examples of articles published at Concussion Inc. in early 2016 pertaining to these matters.

6. On April 6, 2016, Petitioner made a written request, by email, to the UC Berkeley Public Records Act office (“UCB-PRA Office”) pursuant to Gov. Code §6250, et seq. (“April 6, 2016 Request”). Attached as Exhibit F is a true and correct copy of the April 6, 2016 Request.

7. On April 14, 2016, UCB-PRA Office acknowledged receipt of Petitioner’s request in an email from Liane Ko (“Ko”), Public Records Coordinator (“April 14, 2016 UCB-PRA Response”). Attached as Exhibit G is a true and correct copy of the April 14, 2016 UCB-PRA Response.

8. In May 2016, UCB-PRA Office released at least one document responsive to the April 6, 2016 Request to another requester — the Daily Cal newspaper — but not to Petitioner. This document was an incident report by Campus Police on the November 1, 2013 Incident (“Campus Police Incident Report”). Attached as Exhibit H is a true and correct copy of the Campus Police Incident Report. In Paragraph 16 below, Petitioner presents further facts pertinent to the release of the Campus Police Incident Report to another requester but not to Petitioner.

9. From May 1, 2016 to July 21, 2016, Petitioner had extensive email correspondence with both the University of California Office of the President and the University of California-Davis regarding Petitioner’s request for files of Dr. Jeffrey Tanji (“Tanji”) related to his work on the 2014 review of the UC Berkeley football strength and conditioning program (“Tanji Request”). Attached as Exhibit I is a true and correct copy of the batched correspondence related to the Tanji Request, in chronological order. For the sake of economy and clarity in reproducing weeks of emails involving multiple recipients, Exhibit I includes only the base message texts and eliminates concatenated reiterations of earlier messages in the threads. Petitioner alleges that the failure of the Respondent to produce the attachment to the Tanji Report, and the confusion attendant to Petitioner’s request for this patently public record, combine to illustrate Respondent’s pattern of lack of good faith in response to Petitioner’s Public Records Act requests.

10. In June 2016, UC Berkeley Chancellor Nicholas B. Dirks (“Dirks”) announced the commissioning of a second review of the football team’s strength and conditioning program. According to media reports at the time, this action followed criticism by members of the faculty and the news media of questions of conflicts of interest and lack of thoroughness in the original review, which had been undertaken in 2014. Around that same time, at least one document responsive to the Tanji Request was released by UC Berkeley to the San Francisco Chronicle newspaper but not to Petitioner: the report co-authored by Tanji (“Tanji Report”). At this time, Petitioner cannot confirm whether this release was via the campus media relations office, was in response to a routine media inquiry by the San Francisco Chronicle, or was the result of a formal response to a request to UCB-PRA Office. Attached as Exhibit J is a true and correct copy of a June 29, 2016 article about the Tanji Report in the San Francisco Chronicle.

11. On June 30, 2016, UC Berkeley released the Tanji Report to Petitioner in response to an email from Petitioner to Dan Mogulof, media spokesperson for UC Berkeley’s Dirks (“Mogulof”). Attached as Exhibit K is a true and correct copy of Petitioner’s email exchange with Mogulof regarding this matter. At no point at that time or subsequently did UC Berkeley clarify whether the release of the Tanji Report to Petitioner was in response to Petitioner’s Tanji Request.

12. Petitioner alleges that certain requests to UCB-PRA Office in 2016 remain unfulfilled and the overall pattern of UCB’s correspondence and actions constitutes delay or obstruction in breach of § 6253, sub. (d).

13. Petitioner alleges that one such example of UCB delay or obstruction is the handling of Petitioner’s August 1, 2016 request for “copies of all requests for public records that were submitted to your office from April 1, 2016, through July 31, 2016″ (“August 1, 2016 Request”). On August 11, 2016, Ko responded (“August 11, 2016 Ko Email”). Attached as Exhibit L is a true and correct copy of the August 11, 2016 Ko Email. The August 11, 2016 Ko Email provided “…some of the responsive documents” 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. The current timeframe for fulfillment of most requests is 8 weeks.” This request would not be ostensibly fulfilled until more than seven months later – on March 30, 2017.

14. UCB-PRA Office represents that it processes requests in the order received. In a September 22, 2016 email (“September 22, 2016 Ko Email”), Ko stated in part, “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.” Attached as Exhibit M is a true and correct copy of the September 22, 2016 Ko Email. One of the purposes of the August 1, 2016 Request had been to document the veracity of such representations by UCB-PRA Office.

15. In an email on September 29, 2016, Dan Scannell of the Office of General Counsel of the University of California Office of the President (“Scannell”) argued to Petitioner that UCB-PRA Office’s efforts in response to Petitioner’s requests were compliant with the law. Scannell stated specifically that the applicable standard was “‘reasonable’ amount of time” under Motorola v. Department of General Services (1997) 55 Cal. App. 4th 1340, 1349. Petitioner replied by email to Scannell as follows: “Upon a plain reading of Motorola v. Department of General Services, I do not find it especially applicable to the facts in my case. Motorola is mostly focused on the issue of the prevailing party and award of attorney fees. The delays in production of documents under CPRA in Motorola involve very different circumstances, particularly with respect to any possible ‘misunderstanding’ as to my April request (there is none) and to the shifting timelines production represented by the University.” There has been no response to Petitioner’s email to Scannell. Attached as Exhibit N is a true and correct copy of this September 29, 2016 email exchange.

16. On February 10, 2017, Ko emailed to Petitioner the Campus Police Incident Report referenced in Paragraph 8 above. The markings on the Campus Police Incident Report suggested that it had been previously disclosed to the Daily Cal newspaper, and Petitioner contacted the Daily Cal and confirmed this.

17. In her February 10, 2017 email accompanying the Campus Police Incident Report (“February 10, 2017 Ko Email”), Ko stated, “The release of this document completes this records request, and we now consider this request closed.” It was not clear which request was considered closed; the subject line of the February 10, 2017 Ko Email, “Documents re Athletics Incidents,” had not previously appeared in exchanges between Petitioner and UCB-PRA Office. Attached as Exhibit O is a true and correct copy of the February 10, 2017 Ko Email.

18. In a letter to Ko on March 24, 2017, Petitioner’s attorney Roy S. Gordet outlined Petitioner’s allegations of flaws in the UCB-PRA Office responses to Petitioner’s requests; these flaws included, inter alia, the absence of a clear inventory of “open” and “closed” requests (“Gordet Letter”). Attached as Exhibit P is a true and correct copy of the Gordet Letter. In a March 30, 2017 response to the Gordet Letter, Ko contended that all of Petitioner’s requests were “closed” (“March 30, 2017 Ko Email”). Attached as Exhibit Q is a true and correct copy of the March 30, 2017 Ko Email.

19. In a series of emails beginning on February 16, 2017, Petitioner challenged Ko’s assertion that “we now consider this request closed.” Due to the unclear nature of UCB-PRA Office’s inventory of requests, as explained in the Gordet Letter referenced in Paragraph 18 above, it is not possible to pinpoint exactly which request the parties were disputing here. The Gordet Letter also explained the failure of Ko, UCB-PRA Office and the Respondents to clarify possible disagreements over which emails of Petitioner were considered by UCB-PRA Office to be demands for cures of flawed responses to existing requests, and which were considered to be requests de novo. Follow-up efforts by Petitioner included forwards of emails to various officials at both UC Berkeley and the University of California Office of the President. In Petitioner’s last email, to University of California President Janet Napolitano on March 16, 2017 (“March 16, 2017 Muchnick Email”), Petitioner asserted that UCB-PRA Office appeared to be in breach of the California Public Records Act in multiple respects. Attached as Exhibit R is a true and correct copy of the March 16, 2017 Muchnick Email.

20. Petitioner alleges that The Regents will continue to refuse to permit members of the public, including Petitioner, to inspect or obtain copies of the requested public records, and that such refusal violates the Public Records Act.

21. Among other provisions of the Public Records Act, The Regents have violated Government Code § 6253, which provides, in pertinent part, that “[e]xcept with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person.”

22. Petitioner alleges that especially egregious in Respondent’s actions is the implied representation that there is not a single email generated by a UCB official, including without limitation Dirks, former Vice Chancellor John Wilton, former Athletic Director Sandy Barbour, or former Deputy Athletic Director Solly Fulp, that reflected administrative deliberation over how to handle the November 1, 2013 Incident or the Agu Death; or, alternatively, that there is not a single legally segregable excerpt from such a document not protected by particular exemptions UCB-PRA Office has failed to specify. In the absence of backup to support the ostensible blanket representation that no responsible UC Berkeley administrator so much as transmitted a single email with respect to events giving rise to a death of a student on campus and a multimillion-dollar institutional liability in that death, any contention that the Regents fully complied with the Public Records Act under the facts described in this Petition is not plausible.

THEREFORE, Petitioner respectfully requests that:

1. This Court issue a peremptory writ of mandate, without a hearing or further notice, immediately directing The Regents to disclose to Petitioner all of the requested records or, in the alternative, an order to show cause issue why all of these public records should not be disclosed;

2. The Court set “times for responsive pleadings and for hearings in these proceedings … with the object of securing a decision as to these matters at the earliest possible time,” as provided in Government Code § 6258.

3. The Court enter an order awarding Petitioners his reasonable attorneys’ fees and costs incurred in bringing this action, as provided in Government Code § 6259; and

4. The Court award such further relief as is just and proper.

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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-friendly devices at http://amzn.to/2aA2LDl. One hundred percent of royalties are being donated to sickle cell trait research and education.

“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