Case Management Report to Judge Jeffrey S. Brand: Release of UC Berkeley ‘Binder’ of Campus Police Reports in 2014 Ted Agu Football Death Focuses Public Records Act Lawsuit to Its ‘Most Salient Dispute’

The previous post here today reported that Concussion Inc. has asked the Alameda County Superior Court to schedule briefing on the issue of the University of California’s release to us, under the state Public Records Act, of 141 pages of reports generated by the Berkeley campus police in the aftermath of the 2014 death of football player Ted Agu.

Below is the full text of the narrative of attorney Roy S. Gordet’s case management report to Judge Jeffrey S. Brand.

Petitioner believes that that there has been significant progress based on the two “rolling basis” productions of previously withheld documents. In an effort to move expediently towards a common goal of resolution, based on recent representations by Respondent and concomitant disclosures, Petitioner has agreed to forego seeking a separate determination on certain FERPA issues and certain privacy issues that the Court has not yet ruled on.

Petitioner is disappointed, however, that there has been no agreement between the parties on a briefing schedule, as contemplated by the Court’s August 8 Order, for the issue of whether the known 141 pages of Berkeley campus police records, described by Respondent’s counsel as a “binder,” will be publicly produced, in whole or in part. Respondent has recently informed Petitioner that Respondent will argue for exemption of these documents under CPRA Section 6254(f). Petitioner contends that holdings of the 1993 Williams case and other cases, such as Haynie v. Superior Court and Sierra Club v. Superior Court, when interpreted in the light of the facts in the record with respect to the 141 pages, which include questions of public agency malfeasance, and with the urgent public interest in the recent national scandals in college sports bolstered by the recent tragic death of a student football player at the University of Maryland, suggest something much less than Respondent’s bright-line interpretation of 6254(f). In this anticipated streamlined Motion, Petitioner will explain why many, or all, of the 141 pages should be immediately disclosed, perhaps with light redactions, perhaps without. At a minimum, in the unlikely event Respondent succeeds in raising doubts sufficient to overcome its heavy burden to justify non-disclosure, then Petitioner will argue that the Court should undertake an in camera review at the Court’s earliest opportunity, and make a ruling.

At the Case Management Conference, Petitioner will respond to Respondent’s reasons for delaying the briefing that to this point have resulted in a brief scheduling impasse and any other issues related to the substance and scope of the briefing. Petitioner has stated and continues to believe that further delay is unacceptable, and that the Court now must set the briefing schedule. Additional information in the record of this case and in the public record as a whole since our August 1 hearing has only made the significant and sui generis issue of the 141 pages even more ready for presentation and decision by the Court.

Regardless of what specific briefing dates are ultimately set by the Court, Petitioner further requests that all other work on this case be suspended pending such briefing and a ruling. The purpose of this request is judicial economy: the case has been narrowed and focused to the most salient dispute, and anything else emerging from its resolution will be affected by the resolution of the 141-pages question. Tasks related to devising or revising categories of records, searching for other categories of records, notating exemption claims by Respondent and any objections thereto by Petitioner, and determining the legitimacy of certain asserted privileges, would at this point merely slow determination of the possible connection of the 141 pages disclosure to less significant issues and could give rise to unnecessary delays. In addition, designation of certain information by Respondent as “Attorneys Eyes Only” complicates presentation and resolution of certain of the issues that are merely tangential to the 141 pages and their disclosure.

In sum, Petitioner seeks the quickest possible briefing schedule on the 141 pages/binder, and a suspension of other activities during the pendency of the anticipated Motion. These steps prevent harm to the public’s interest under CPRA and what the Court has acknowledged could be a finite “shelf life” of public attention to the information in withheld documents that should be disclosed.

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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