In Addition to Hiding the 141-Page Campus Police Binder in Our Public Records Act Case, University of California Covered Up an Unknown Number of Documents in the Ted Agu Football Conditioning Death Generated by Its Office of Risk Services

by Irvin Muchnick

We’ve reported on the odd zig-zag rulings by which Alameda County Superior Court Judge Jeffrey S. Brand allowed the University of California to keep hidden a 141-page binder of Berkeley campus police reports in the 2014 football conditioning death of Ted Agu. After signaling otherwise, the judge in our California Public Records Act (CPRA) lawsuit wound up deciding that these documents were protected from disclosure under an exemption for law enforcement agency records that were based on “reasonable suspicion of criminal activity.”

Despite this ruling, Concussion Inc. has acquired and published bits and pieces of the infamous binder from campus sources, and they paint a much different picture.

The campus police documents that we have seen demonstrate something much more like the use of Chief Margo Bennett’s force as consultants in mitigating the university’s anticipated Agu family civil lawsuit exposure. (The 2016 settlement of this case cost California taxpayers and UC tuition-payers nearly $5 million — the lack of accounting for which is one more reason why I feel this public agency’s CPRA compliance, and the court’s enforcement of it so far, have been shoddy.)

The purpose of this article — explained below — is to put the spotlight on another batch of documents whose very existence UC failed to reveal before my attorney Roy Gordet raised them.

Before getting to them, I invite readers to review the totality of our Agu cover-up coverage on this site across more than five years, and in particular our most recent overview, published April 4, at https://concussioninc.net/?p=13760:

• Campus cops led then head football coach Sonny Dykes’ strength and conditioning assistant, Damon Harrington, through a second “do-over” interview, explaining: “[W]hen you were asked if you knew of any medical conditions … you said no or you weren’t very specific…. [K]eep in mind what we don’t wanna do is we don’t wanna have it appear that you’re either not telling the truth … or that you’re being deceptive.” The underlying problem was that Agu was a sickle cell trait carrier, and everyone in charge knew or strongly suspected, from day one second one, that he had died of a sickling collapse, not heart failure.
• The first sentence of the first page of the contemporaneous incident report by the campus police patrol officer who joined the medical first responders included: “I was dispatched to the report of a male subject who had a pre-existing medical condition.”
• The head athletic trainer, Robbie Jackson, alerted the arriving paramedics to be on the lookout for rhabdomyolysis: a syndrome associated with sickle cell trait collapse, not with a coronary.
• University of Oklahoma head athletic trainer Scott Anderson, the leading professional journal chronicler of the circumstances of college football conditioning deaths, told me that on the day of the Agu incident, a source told Anderson that an assistant coach said, “It’s a sickle cell death.”
• A Cal assistant athletic trainer, Michael Jones, said in his interview with a campus cop that he didn’t know if he “was allowed” to discuss Agu’s “medical status.”
• While all this was going on, the football team physician, Dr. Casey Batten, was putting his thumb on the scale of Alameda County medical examiner Dr. Thomas Beaver’s autopsy investigation. In a random phone conversation whose purpose Batten never justified, he called Beaver to assert that the Agu death looked like slam-dunk hypertrophic cardiomyopathy (heart failure), and withheld the known fact that Agu was a sickle cell trait carrier. Beaver would testify that he wasn’t informed of the trait, and he agreed with the Agu family lawyers, when presented with the evidence, that this was a sickling episode. And Beaver even went to the trouble of revising accordingly the now year-old autopsy findings — which in turn set the stage for the large monetary settlement of the wrongful death lawsuit.

As I proceed to other concealments on the part of the university, I emphasize that the key for establishing a cover-up isn’t even Judge Brand’s eventual agreement that the 141 pages of campus police records were exempt from public release under CPRA section 6254(f). Though I believe the court got this issue very wrong, the key here is that UC had unilaterally decided, without the blessing of the court, that it didn’t even need to disclose the existence of assertedly protected documents. In ruling in the university’s favor, Judge Brand was silent on this point and its implications for both the letter and the spirit of public information law. These may be among multiple fertile appeal grounds.

And all this is important background for an additional batch of documents whose very existence likewise was never acknowledged until we called UC on it. These are documents from the university’s Office of Risk Services.

This office guides “risk assessment” — a fancy term for monitoring how to limit possible monetary exposure for the institution if it gets sued. Unquestionably, there are pertinent risk assessment records in the Agu death. Why did the University of California spend all of 2016, when I made my initial requests to the Berkeley public records act compliance office, not even revealing that risk assessment documents existed but, perhaps, would be asserted to be exempt from public disclosure? Further, since the filing of our CPRA litigation — in April of 2017! — we have been asking for relevant and responsive documents, with the collaboration of UC’s counsel, to pinpoint what documents exist and must be disclosed.

Stay tuned.

Complete headline links to our series on the Ted Agu death cover-up (beginning November 2013 – before Agu’s death):https://concussioninc.net/?p=10877