by Irvin Muchnick
In discussion of University of California-Berkeley campus police reports in connection with the 2014 death of football player Ted Agu — documents partially shared with, but in larger measure withheld from, the Alameda County Sheriff’s Office — a lawyer for the University of California last week reported to a state court, “I don’t know if anything like that exists.”
This conditional statement contradicted what is known about the university’s concealment from the sheriff of more than 100 pages of a 141-page campus police report prepared in the weeks following Agu’s fatal collapse during an offseason conditioning drill.
A senior counsel for UC’s office of the president made the statement in a joint report to Alameda County Superior Court Judge Jeffrey S. Brand in the latest procedural phase of this reporter’s California Public Records Act (CPRA) lawsuit against the university for internal documents related to the Agu death. The scandal resulted in a $4.75 million settlement in 2016 of a wrongful death suit by the family. Our CPRA case is now in its 14th month.
Judge Brand had directed the CPRA parties to meet and confer regarding how to resolve an impasse over whether UC’s claims of exemptions from document production, due to purported provisions of the Federal Educational Records Privacy Act (FERPA), should additionally bar the filing of a public information litigation device known as a Vaughn Index. Such an index, or “privilege log” in legal parlance, would list and describe documents that the public agency is refusing to release to the records requester-litigant, and also specify asserted grounds for exemption from CPRA disclosure.
For my portion of the joint report to the court, attorney Roy S. Gordet submitted a narrative of discussion of the categories of potential documents that were either agreed to or remained at some level of dispute. The university’s portion of the report submitted a printout of some of the emails counsel had exchanged, along with a single introductory paragraph.
The UC portion records, “I don’t know if anything like that exists,” in response to the possibility of a category of campus police documents produced for the sheriff. The university lawyer added that if they do exist, “we agree that such records are not barred by the FERPA-bar.”
Gordet pointed out that Concussion Inc. had “acquired and published a deposition given by Lieutenant Bowers of the Alameda County Sheriff’s Office that appears to contradict your tentative premise that there are no responsive documents falling within such a category. Thus, if the category is acceptable, then it would appear that the Regents should produce any such responsive documents in the possession of the Regents.”
In a new tentative ruling issued earlier this week and argued at a hearing yesterday, Judge Brand has given the parties a new window for further narrowing their differences on document production or a privilege log, as well as for submission of preliminary motions to the court prior to the next hearing, scheduled for August 1.
Over the next several days, Concussion Inc. will be republishing our May 23, 2016, article headlined “TED AGU PAPERS: Berkeley Campus Police Withheld From Alameda County Sheriff and Coroner 112 of 141 Pages of Death Investigation — Including Statements of Two Football Teammates,” https://concussioninc.net/?p=11120.
In addition, we will make available to readers of this website the full transcript of the July 16, 2015, deposition in the Agu family lawsuit of Lieutenant Riddic Bowers, unit commander of the Coroner’s Bureau of the Alameda County Sheriff’s Office. Though never before published here, this transcript is a chapter of our 2016 ebook THE TED AGU PAPERS: A Black Life That Mattered — And the Secret History of a Covered-Up Death in University of California Football. (The ebook is available on Amazon Kindle at https://www.amazon.com/Ted-Agu-Papers-Covered-Up-University-ebook/dp/B01JSTBSOU; all royalties are earmarked for donation to sickle cell trait research and education.)
Further context for the current dispute over production of a Vaughn Index is provided in UC’s recent disclosure, in a partial release of documents during CPRA lawsuit negotiations, of a March 20, 2014, email in which Berkeley campus police chief Margo Bennett wrote in part to John Wilton, then the vice chancellor for administration and finance:
“John, regarding the documents I gave you yesterday, please don’t share the papers … l put them together for you (and Ann if needed) only. If others need the information, I am happy to give a verbal briefing, but not documents. The case is not available for a PRA request and I’d like to keep it that way.”
“PRA” in Bennett’s email, of course, stands for Public Records Act.
2017 op-ed article for the Daily Californian on my Public Records Act lawsuit: http://www.dailycal.org/2017/04/25/lawsuit-uc-regents-emblematic-issues-facing-college-football/
Second op-ed article for the Daily Californian (published May 4): http://www.dailycal.org/2018/05/03/years-later-questions-remain-regarding-football-player-ted-agus-death/
“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