by Irvin Muchnick
Concussion Inc. has told the judge in our California Public Records Act (CPRA) lawsuit against the University of California Regents that the university is making shifting and misleading arguments to justify withholding documents.
Specifically, attorney Roy S. Gordet argues in a motion filed today in Alameda County Superior Court, UC sought the waiver of the family of the late Ted Agu — the Cal-Berkeley football player who died during an extreme conditioning drill in 2014 — for release of certain documents even though the university was already well aware that a deceased student has no privacy rights under the Federal Educational Records Privacy Act (FERPA). UC then used the approach to the Agu family and the resulting waiver as part of an argument that FERPA concerns bar the production of a listing of withheld documents, known as a Vaughn Index, that is standard in public information litigation.
Gordet notes that with newly articulated categories of documents under the framework created by Judge Jeffrey S. Brand’s existing tentative ruling, the university already “has agreed to produce documents in its possession on a rolling basis as they become known to Respondent that are not exempted by FERPA or exempted on other grounds.”
At this point there is “a disturbing pattern of conduct by Respondent of interspersing subdued facts and theories that spill over into what should be straightforward issues amenable to decision by the Court. As the clearest example of this, as explained below, we have the issue of the belated request to the Agu family for authorization to have documents released by Respondent…. Petitioner submits that there is something going on beneath the surface of Respondent’s strategies and actions that has not yet bubbled to the surface.”
We also argue that facts developed in the CPRA case regarding a 141-page campus police report related to Agu’s death require that this document “must be disclosed without delay.” A campus police report “is expressly not exempted under FERPA and there has been no showing of invasion of any privacy rights.”
The full brief by Gordet is viewable in facsimile form at http://muchnick.net/cpraprivacymotion.pdf. The next post here will publish the full text of the brief.
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