Full Text of Court’s Tentative Ruling Yesterday in Concussion Inc. Motion For Release of UC Berkeley Campus Police 141 Pages of Reports on 2014 Ted Agu Football Conditioning Death

Below is the full text of the tentative ruling issued yesterday by Alameda County Superior Court Judge Jeffrey Brand in our motion, seeking release under the California Public Records Act, of 141 pages of secret Berkeley campus police reports in the 2014 death of football player Ted Agu.

An interpretive report is in the previous post.

This Tentative Ruling is made by Judge Jeffrey Brand The motion of petitioner Muchnick to require the Regents to disclose a 141 page police report relating to the death of Ted Agu is CONTINUED to 09:00 AM on 01/17/2019 in Department 511, Civil Law and Motion, Hayward Hall of Justice, 24405 Amador Street, Hayward. The court continues the hearing to permit supplemental briefing. (Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1286.)

On or before 12/7/18, The Regents may file a supplemental brief of up to 8 pages with supporting evidence addressing (1) the “reasonable suspicion of criminal activity” standard, (2) whether the Regents or UCB conducted any other investigation regarding the death of Ted Agu, and (3) any other issues raised by the motion.

On or before 12/21/18, Petitioner may file a supplemental opposition brief of up to 8 pages with supporting evidence addressing the identified issues.

On or before 1/4/18, The Regents may file a supplemental reply brief of up to 5 pages without evidence addressing the identified issues.

The substance of the court’s tentative decision is below.

TENTATIVE DECISION

The motion of petitioner Muchnick to require the Regents to disclose a 141 page police report relating to the death of Ted Agu is UNDECIDED.

PUBLIC RECORDS ACT – LEGAL FRAMEWORK.

The California Public Records Act states that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (Gov. Code 6250.) This principle is also stated in the state Constitution as follows: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore … the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const, Art I, Sec. 3(b)(1).)

The public is entitled to inspect public records unless one of the exceptions stated in the Act applies. (Gov. Code 6253 (a) & (b)). A public entity can assert that responsive public records are exempt from production under the CPRA one of the Govt Code 6254 specific exemptions or the Govt Code 6255, the catch-all exception.

As a matter of statutory interpretation, the court reads the exemptions narrowly. (Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 305; County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 60.) As a matter of evidence, the public entity has the burden of proving that an exemption applies. (Gov. Code 6255.)

FACTS

The UC Berkeley Police Department responds whenever anyone is injured on campus. The Department responds for several reasons: (1) the officers are trained in first-aid, (2) the officers conduct an investigation, if appropriate, for potential criminal cases, and (3) the officers conduct an investigation, if appropriate, for other purposes. (Bennett Dec., para 3.) UCB policy is that when a police officer responds to an incident, then it becomes a police matter. (Bennett Dec., para 3.)

Regarding deaths specifically, the UC Berkeley Police Department investigates any death on campus. (Benningson Dec, para 3.) The Department investigates all deaths, whether by natural cause, suicide, homicide, or otherwise. (Benningson Dec, para 3.) The Department assigns a detective to all such investigations. (Benningson Dec, para 3.)

Ted Agu was a student at UC Berkeley who played football. On 2/7/14, Ted Agu had a medical episode during a football practice. The initial report to the Department indicated that Agu had a preexisting medical condition. (Benningson Dec, para 4.)

The UC Berkeley Police Department conducted an investigation into Ted Agu’s death. (Benningson Dec, para 1-15.) The UC Berkeley Police Department’s investigation was consistent with the policy that the Department investigates all deaths on campus. All of the Department’s investigative work was done was part of the Department’s investigation. The Department did not investigate on behalf of any other campus unit, such as the Student Conduct Office or the Athletic Department. (Benningson Dec, para 7.)

Detective Benningson oversaw the investigation and he created and used a binder to maintain his investigative materials. (Benningson Dec, para 3, 6-8.) The binder contained incident reports, narrative reports, property receipts, information from the coroner, and other records. (Benningson Dec, para 9.)

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.

THE BINDER IS A PUBLIC RECORD AND INCLUDES PUBLIC RECORDS.

The binder and the records in the binder are public records because they are “writing[s] containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency.” (Gov. Code 6252(e); Regents of University of California v. Superior Court (2013) 222 Cal.App.4th 383, 398-399.)

APPLICABILITY OF THE GOVT CODE 6254(F) EXEMPTION TO THE BINDER AND THE RECORDS IN THE BINDER.

The Regents is withholding the binder under the Govt Code 6245(f) exemption for investigations and investigatory records. The privacy of Ted Agu’s family is not at issue. The Regents obtained a waiver from the family of Ted Agu and subsequently released public records concerning him to petitioner. (Goldstein Dec filed 3/27/18, para 9; Gordet Dec.filed 4/9/18, para 8.)

The Regents relies on Govt Code 6254(f), which states:

[T]his chapter does not require the disclosure of any of the following records: … (f) Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of … any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.

The Regents has presented evidence that a police detective collected information as part of his investigation and placed that information in the binder. This suggests that the binder and its contents are exempt under Govt Code 6254(f). A public agency may, however, not shield document from disclosure with bare assertion that it relates to investigation. (Williams v. Superior Court (1993) 5 Cal.4th 337, 356.)

WHAT IS AN “INVESTIGATION” FOR PURPOSES OF GOVT CODE 6254(F)?

The Govt Code 6254(f) exception applies only if the records were created or complied for purposes of criminal investigations. The purpose of Govt Code 6254(f) is to exempt law enforcement investigations, not to exempt all investigations. “[N]ot every inquiry is an “investigation” in the relevant sense.” (American Civil Liberties Union Foundation v. Superior Court (2017) 3 Cal.5th 1032, 1042 (“ACLU”).)

“The records of investigation exempted under section 6254(f) encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred.” (Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1071.) Furthermore, “The adjective ‘law enforcement,’ as used in [Govt Code 6254(f)], refers to law enforcement in the traditional sense-that is, to the enforcement of penal statutes, etc.” (State of California ex rel. Division of Industrial Safety v. Superior Court (1974) 43 Cal.App.3d 778, 784.) See also Dixon v. Superior Court (2009) 170 Cal.App.4th 1271, 1277 [“As for the legal point, the decisions with which we agree construe this investigatory file exemption as applying only when there is “a concrete and definite prospect” of “criminal law enforcement” proceedings”].)

Just as the attorney-client privilege and the related CPRA exemption under Govt Code 65254(k) apply only when a lawyer is acting qua lawyer and not as a business agent (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 295-296) the Govt Code 6254(f) exception applies only when a public entity is conducting a criminal law enforcement investigation.

The court has found no law stating what evidence a public entity must present or what standard it must meet to demonstrate that an investigation is serving a law enforcement purpose and qualifies as a Govt Code 6254(f) exempt law enforcement investigation.

The court starts from the proposition that under Haynie and ACLU a public entity cannot meet its burden of proving that the Govt Code 6254(f) law enforcement investigation exemption applies solely by presenting evidence that the police collected the information and/or conducted the investigation. As noted in Haynie, 26 Cal.4th at 1071, “Often, officers make inquiries of citizens for purposes related to crime prevention and public safety that are unrelated to either civil or criminal investigations.” The public entity must demonstrate that the action had a criminal law enforcement purpose.

Both Haynie and ACLU were decided on their facts without articulating a standard. Haynie, 26 Cal.4th at 1071, concluded “The records of investigation exempted under section 6254(f) encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred.” Haynie did not elaborate on what a public entity must establish to meet that standard. Haynie instead made a fact specific finding that “Here, the investigation that included the decision to stop Haynie and the stop itself was for the purpose of discovering whether a violation of law had occurred and, if so, the circumstances of its commission.” (26 Cal.4th at 1071.)

ACLU also made a fact specific conclusion. ACLU, 3 Cal.5th at 1042, stated, “We recognize that it may not always be an easy task to identify the line between traditional “investigation” and the sort of “bulk” collection at issue here. But wherever the line may ultimately fall, it is at least clear that real parties ALPR process falls on the bulk collection side of it.”

The court can identify several plausible standards:

1. The “a reasonable suspicion of criminal activity” standard for a police officer to detain a person to conduct an investigation. (People v. Brown (2015) 61 Cal.4th 968, 981; People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.)
2. The “probable cause” standard for issuing a search warrant or making an arrest. (People v. French (2011) 201 Cal.App.4th 1307, 1315; Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1044-1045.)
3. The “dominant purpose” of the investigation standard, borrowed from the “dominant purpose” standard used for determining the existence of an attorney relationship and thus the applicability of the attorney-client privilege and the Govt Code 6254(k) exemption to the CPRA. (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 295; Uber Technologies, Inc. v. Google LLC (2018) 27 Cal.App.5th 953, ___.)

The court will apply the “reasonable suspicion of criminal activity” standard to differentiate the collection of information as a first-responder or generic investigator from a law enforcement investigation. This standard adequately addresses the underlying question of whether the police would have had reason to initiate a law enforcement investigation even if they did not become aware of the subject matter in their capacity as first responders or otherwise. “[W]here a reasonable suspicion of criminal activity exists, the public rightfully expects a police officer to inquire into such circumstances in the proper exercise of the officer’s duties.” (People v. Brown (2015) 61 Cal.4th 968, 981.) Consistent with the “reasonable suspicion of criminal activity” standard, a public entity asserting that an investigation is a law enforcement investigation and therefore exempt under Govt Code 6254(f) must present “a particularized and objective basis for suspecting … criminal activity.” (People v. Brown (2015) 61 Cal.4th 968, 981.) .

The “probable cause” standard is too high because the Govt Code 62564(f) exemption relates to the initiation and conduct of an investigation and not to whether it gives probable cause to arrest a particular suspect.

The “dominant purpose” of the investigation standard is a poor fit because the creation of an attorney-client relationship is a voluntary act between two persons whereas a police investigation for law enforcement purposes serves a public function. In addition, a “reasonable suspicion of criminal activity” is cause to initiate a law enforcement investigation even if it was not the dominant purpose for initiating the investigation. (Whren v. United States (1996) 517 U.S. 806 (rejecting argument regarding traffic stop as a pretext to search for drugs and holding that the officers’ subjective motivation did not invalidate the search otherwise justified by objective facts].)

The “reasonable suspicion of criminal activity” standard does not consider whether the investigation eventually lead to a referral to the District Attorney to consider criminal charges. “Law enforcement officers may not know whether a crime has been committed until an investigation of a complaint is undertaken. An investigation may be inconclusive either as to the cause of death or the circumstances in which the death occurred. A fire may be suspicious, but after investigation be found to have an accidental or natural origin.” (Haynie, 26 Cal.4th at 1070.) An investigation can be exempt under Govt Code 6254(f) even if at the conclusion of the investigation no charges are filed.

The court has considered Dixon v. Superior Court (2009) 170 Cal.App.4th 1271. In Dixon, a person was found dead in an open field with bullet wounds to her body, the coroner conducted an autopsy, and there was eventually a criminal trial for murder. On those facts, the court found that the coroner and autopsy reports were “investigatory files compiled for law enforcement purposes.” (170 Cal.App.4th at 1279.) In Dixon, there was more than a death. In Dixon, “The coroner and autopsy reports investigated the death of a person left in an open field with multiple bullet wounds.” (170 Cal.App.4th at 1278.) This more than met the “reasonable suspicion of criminal activity” standard.

WAS THE BERKELY POLICE DEPARTMENT CONDUCTING AN “INVESTIGATION” FOR PURPOSES OF GOVT CODE 6254(F)?

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.

Ted Agu apparently died as a result of some medical condition. 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.

The Regents makes the implicit argument that the investigation was a law enforcement investigation because any death raises a reasonable suspicion of criminal activity. The court is not persuaded. The coroner has a duty to inquire into and determine the circumstances, manner, and cause of all violent, sudden, or unusual deaths. (Govt. Code 27491.) The coroner’s obligation to notify the police is narrower and exist only when the coroner has “a reasonable ground to suspect that the person’s death has been occasioned by the act of another by criminal means.” (Govt. Code § 27491.1.) This strongly suggests that the fact of a death does not automatically present a “reasonable suspicion of criminal activity.

The legal standard was not identified in the initial briefing, so the court CONTINUES the motion to permit Petitioner and the Regents to present evidence that addresses the legal standard.

The court also CONTINUES the motion to permit Petitioner and the Regents to present evidence regarding whether the Regents and/or UCB conducted any investigation other than the Department’s investigation. The Regents asserts that the Department did not investigate on behalf of any other campus unit, such as the Student Conduct Office or the Athletic Department. (Benningson Dec, para 7.) This begs the question of whether the Regents and/or UCB conducted any parallel non-law enforcement investigation.

ARE THE BINDER AND ITS CONTENTS EXEMPT UNDER GOVT CODE 6254(F)?

Assuming that the detective created the binder for purposes of a criminal law enforcement investigation, the court considers whether the binder and its contents are (1) records of an investigation, (2) records of intelligence information or security procedures, and/or (3) investigatory or security files. (American Civil Liberties Union Foundation v. Superior Court (2017) 3 Cal.5th 1032, 1039.)

The binder is a record of an investigation. The fact that an investigation file (or binder) includes a non-exempt public record is itself exempt information. “[A] document in the file may have extraordinary significance to the investigation even though it does not on its face purport to be an investigatory record and, thus, have an independent claim to exempt status.” (Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1069-1070.) Govt Code 6254(f) “protects materials that, while not on their face exempt from disclosure, nevertheless become exempt through inclusion in an investigatory file.” (Williams, 5 Cal.4th at 354.)

If the Department had conducted a law enforcement investigation that was covered by Govt Code 6254(f), then the Regents would not be required to produce the binder because to do so would identify what materials the detective thought were relevant to his investigation. The Regents would have to produce the public records in the binder if they were available elsewhere at UCB.

The contents of the binder are not records of intelligence information. The Regents does not make this argument.

The contents of the binder might be investigatory records. The detective might have collected non-exempt records and placed them in the binder. Public records that are not exempt elsewhere as “investigatory” records do not become exempt because they are subsequently used for an investigation or placed in an investigation file. (Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1069.) If the Regents had a public record that was not exempt before it was placed in the binder, then it would still not be exempt and the Regents must produce the public record. The Regents would not be required to disclose that a record had been in the binder. If there were a dispute about whether any given record was exempt independent of being in the binder, then the court would review the records. (Williams v. Superior Court (1993) 5 Cal.4th 337, 356.)