Court Directs University of California to Justify Withholding an Index of Documents in Concussion Inc.’s Public Records Act Case Involving Football Player Ted Agu’s Death

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by Irvin Muchnick


The University of California Board of Regents yesterday told a Superior Court judge that it was unable to file a log of the documents it is withholding from this reporter in a California Public Records Act (CPRA) case — a production that is known in public information law as a “Vaughn Index” — because of restrictions of the Federal Educational Records Privacy Act (FERPA).

At a case management conference held in open court, Concussion Inc.’s attorney, Roy S. Gordet, said UC’s position both was implausible and had arrived only at the end of months of meeting and conferring on the conditions for some form of production, which had been expected to form the basis of defining the issues in the dispute.

I filed the CPRA action last April, after spending almost all of 2016 attempting to acquire from the university internal documents pertaining to the 2014 death of UC Berkeley football player Ted Agu, and to a related incident three months earlier in which another player, J.D. Hinnant, criminally battered a teammate — allegedly after being incited by then strength and conditioning coach Damon Harrington. UC admitted liability in the Agu death and paid $4.75 million to settle the family’s wrongful death lawsuit.

Judge Kimberly E. Colwell asked university counsel Michael Goldstein to provide an estimate of the number of documents involved in the dispute — at one point, in follow up, suggesting the answer could be framed in very broad general ranges: “ten” or “a thousand.” Goldstein responded that FERPA concerns prevented UC from providing even that level of a sense of the potential volume of disputed records.

The judge directed the university to submit by March 27 a brief of its argument concerning how the provisions of FERPA preclude the production of a Vaughn Index. Gordet will file our opposition brief by April 10. A hearing on the issue is set for April 26.



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 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:

“Explainer: How ‘Insider’ Access Made San Francisco Chronicle and Berkeley J-School Miss Real Story Behind Death of Cal Football’s Ted Agu,”

Complete headline links to our Ted Agu series:

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Concussion Inc. - Author Irvin Muchnick