by Irvin Muchnick
A lawyer for the University of California office of the president, representing the regents in Concussion Inc.’s state Public Records Act (PRA) lawsuit for internal documents relating to the 2014 conditioning drill death of UC Berkeley football player Ted Agu, today acknowledged to an Alameda County Superior Court judge the existence of something very much like the 141-page campus police report we are seeking.
UC’s statement came in a hearing before Judge Jeffrey S. Brand on next steps in a PRA case that began in April 2017, following my series of public records requests that began in March 2016.
From the bench, Brand said a recent motion by my attorney, Roy S. Gordet, to compel production of the 141-page campus police report was ”premature.” The judge added, however, that the issue of this report and other aspects of the dispute were rapidly becoming “ripe.”
Following the next set of briefs, for which he directed both sides to coordinate an imminent schedule, Brand said, “I’m assuming we can make decisions on all of these issues, and if appropriate, the court will order production of documents.”
During the hearing, as part of the discussion of UC’s submission of a court-ordered report breaking down categories of still-disputed records, senior counsel Michael R. Goldstein said he had seen the 141-page document we have targeted, but questioned whether it should be called a “report.” Rather, Goldstein said, it is “a binder” containing a number of documents, “which appear to total around 141 pages.”
This description is consistent with what Concussion Inc. has told the university about the table of contents at the front of the report, based on information gathered outside this litigation.
Goldstein defended UC’s failure to make note of the 141-page report, or collection of reports, either in response to this reporter’s original public records requests or in settlement discussions focused on a fresh search for relevant documents based on a jointly developed “algorithm” of names and search terms. The lawyer said the university had never included police records in earlier searches because of the assumption that it would be claiming exemptions from disclosure under § 6254(f) of the California code, which excludes from public release “records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of” various listed law enforcement agencies. These include “any state or local police agency.”
One of the “ripe” issues emerging in this case is that UC admits that campus police reports are allowed to be disclosed under the Federal Educational Records Privacy Act — while the state § 6254(f) provision might involve an independent dynamic for certain types of public records that otherwise would be releasable.
In Concussion Inc.’s most recent motion to Judge Brand, attorney Gordet drew legal battle lines in a section of the brief headed “Production of the 141-Page Campus Police Report Is in Keeping with Respondent’s General Public Records Act Disclosure Practice.” We pointed out that UC already had produced a Berkeley campus police report relating to an altercation between two of Agu’s football teammates three months prior to the Agu death, and emphasized:
“… [T]his campus police report was disclosed by Respondent’s PRA [Public Records Act] department to the Daily Cal months before it was disclosed to Petitioner. In any case, it is clear that Respondent discloses campus police reports without suffering substantial harm. Moreover, basing a refusal to disclose on a ground that actually contradicts a pattern of practice of disclosure under the CPRA has been held to be obstructionist conduct.”
Adding to the intrigue over the 141-page report or “binder” is another document that has emerged in our case: a March 20, 2014, email from Margo Bennett, the Berkeley campus police chief, to John Wilton, then the vice chancellor for finance and administration. Bennett wrote in part, “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.”
Bennett likely, though not yet provably, was referring to at least some of the 141 pages now in dispute. We also have reported extensively on how the university withheld many of these pages even from the Alameda County Sheriff’s Office Coroner Bureau during the gathering of information to support the autopsy on Agu’s death.
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