by Irvin Muchnick
Stating that the University of California has not yet met its burden under the Public Records Act, Alameda County Superior Court Judge Jeffrey Brand postponed a hearing this week on Concussion Inc.’s motion to compel production of a 141-page Berkeley campus police binder of reports on the 2014 football conditioning death of Ted Agu.
Brand scheduled supplemental briefing by the parties — which would start with presentation by the university, including “supporting evidence,” that its claim of exemption from release of the binder is based on “reasonable suspicion of criminal activity.” The new round of briefs is also directed to address “whether the Regents or UCB conducted any other investigation regarding the death of Ted Agu.”
The next court date is now January 17 at the Hayward Hall of Justice. In the following post, we will reproduce the full text of Judge Brand’s tentative ruling, which was issued late Monday.
Repeatedly in the ruling, Brand returns to the point that the disputed records do not appear to fall under an exemption from disclosure of law enforcement records under Section 6254(f) of the Public Records Act:
“The Regents has not identified evidence that might have suggested to the Department that Agu’s death was the result of criminal activity. Similarly, the Regents has not identified evidence indicating that the Department investigated Agu’s death as a potential criminal case.
There is nothing in the record indicating that UCB conducted any investigation other than the Department’s investigation. There is no indication whether the UCB Student Conduct Office and/or a UCB student health department conducted an investigation into what caused the death of Ted Agu. There is no indication whether the UCB athletic department conducted an investigation into whether the football training regimen caused or contributed to the death of Ted Agu.”
Citing the bedrock 1993 case on 6254(f) standards, Williams v. Superior Court, the judge says that a public agency may not rely on a “bare assertion” that a disputed document “relates to investigation,” and adds: “Applying the ‘reasonable suspicion of criminal activity’ standard to the current record, the court is inclined to find that the Regents has not met its burden of demonstrating that the Department’s investigation was a law enforcement investigation.”
At another point Brand writes that he is “not persuaded” by UC’s “implicit argument that the investigation was a law enforcement investigation because any death raises a reasonable suspicion of criminal activity.”
“Ted Agu apparently died as a result of some medical condition,” the tentative ruling states. “The Department investigated Ted Agu’s death because as a matter of UC policy the Department investigates all deaths on campus. The evidence does not, however, demonstrate that the Department ever had a reasonable suspicion of criminal activity. As a result, there was no law enforcement aspect to the investigation and therefore the Govt Code 6254(f) exemption for law enforcement investigations does not apply.”
UC now has an opportunity to try to demonstrate otherwise.