Concussion Inc.’s Brief Defending Against the University of California’s Appeal of Our Public Records Act Victory in the Ted Agu Football Conditioning Death Cover-Up Was Filed — Here Are Extended Excerpts

Appellate law specialist John Derrick today filed with California’s 1st District Court of Appeal our brief in response to the University of California Regents’ appeal of Concussion Inc.’s victory in California Public Records Act (CPRA) litigation associated with the university’s cover-up of the circumstances of the 2014 Ted Agu football conditioning drill death in Berkeley.

Last year the Alameda County Superior Court ruled that we were the prevailing party on the basis of our CPRA lawsuit’s role in catalyzing the release of more than 700 pages of previously concealed internal university documents.

Below are extended excerpts of today’s brief. The full brief is viewable at http://muchnick.net/CPRAappealResponse.pdf. UC’s full opening brief is at http://muchnick.net/CPRAappealUCopening.pdf.

There will be additional major news here shortly pertaining to this case.

Introduction

Respondent — an investigative journalist — made a public records request as part of his investigation into a culture of abusive treatment within the strength and conditioning program at the University of California, Berkeley football team. The journalist’s investigation focused, in part, on the death of a student athlete. Eventually, his investigation revealed evidence of a cover-up, but not before he was forced to litigate to obtain records the University resisted handing over.

Before the litigation, the University produced only a limited number of records and told the journalist it viewed the matter as closed. The University’s main excuse was that further records were, supposedly, exempt under a federal statute protecting student privacy. However, that statute does not apply to deceased students. And it would anyway not have covered all the records sought. The University also contended the request was too broad. But it did not meet its statutory obligation to work with the requester to try to fine-tune it to its obvious purpose.

More than a year into the litigation, under the direction of the Alameda Superior Court, which had instructed the parties to identify categories of nonexempt documents that could be responsive, the University finally produced numerous additional records. The trial court then made findings of fact that the filing of the petition had caused the production of further records. On that basis, it found the journalist to be the prevailing party, awarding him attorney fees as mandated by statute.

Facts and procedural history

In November 2013, a student-athlete on the intercollegiate football team at the University of California, Berkeley was hospitalized following a beating by a teammate. Public controversy ensued over whether this incident had been incited by the team’s assistant coach for strength and conditioning. About two months later, another student-athlete on the UC Berkeley football team, Ted Agu, died during a conditioning drill directed by the same coach. In 2016, the Regents of the University of California settled a civil lawsuit about Agu’s death for $4.75 million.

Irvin Muchnick is a freelance journalist and author. He is the author of three books and hundreds of articles in major magazines and newspapers. Muchnick began to investigate excesses in the strength and conditioning program in a series of articles beginning three months before Agu’s death and continuing after. This included investigating whether there had been a cover-up about the link between the program and Agu’s death.

In April 2016, Muchnick made a written request to the University under the California Public Records Act (“CPRA”).

Following this request, the University did produce certain documents, although only after Muchnick pressed for their release. However, according to Muchnick, his requests generally went unfulfilled and were met with reactions constituting delay and obstruction in breach of Government Code section 6253, subdivision (d). In March 2017, the University stated it considered the request “closed,” signaling nothing more would be produced.

In April 2017, the month after the University declared the matter “closed,” Muchnick filed a petition for a writ of mandate in Alameda Superior Court, seeking an order directing the University to comply with the CPRA. As the litigation got underway, the University asserted that all further responsive documents were exempt under the CPRA, because they, by definition, concerned one of three individually identifiable students and were, therefore, exempt under the Federal Educational Rights and Privacy Act (“FERPA”). Muchnick, however, maintained the University was withholding non-exempt documents.

On March 25, 2018, the University did produce 84 pages of records after it obtained a privacy waiver from the Agu family. And on June 1, 2018, it released the settlement agreement in the Agu family lawsuit that was signed after Muchnick’s CPRA request.

The court ordered the parties to identify categories of documents that were responsive and arguably FERPA-exempt. This led to 22 categories being identified in the court order dated June 11, 2018. Following this, the University did release further documents during the remainder of 2018 and 2019. On August 27, 2018, it produced 194 pages of public records that were responsive to four categories identified in the court’s order.

There was no suggestion that these records implicated FERPA. Also on August 27, 2018, the University produced 57 additional pages that were responsive to a further category.

On September 6, 2018, the University produced 387 pages of public records, which were heavily redacted ones the court considered “were the equivalent of a privilege log.” Finally, on March 28, 2019, it released a two-page email, mostly redacted.

The California Public Records Act embodies a strong policy in favor of disclosure of public records and mandates an award of attorney fees to a prevailing plaintiff.

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.” This principle is also enshrined in the state Constitution: “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.”

“The Act’s core purpose is to prevent secrecy in government and contribute significantly to the public understanding of government activities.” (San Diego County Employees Retirement Assn. v. Superior Court (2011) 196 Cal.App.4th 1228, 1244.) “The [Act] embodies a strong policy in favor of disclosure of public records, and any refusal to disclose public information must be based on a specific exception to that policy. Statutory exemptions from compelled disclosure are narrowly construed.” (California State University v. Superior Court (2001) 90 Cal.App.4th 810, 831, citations omitted.)

A plaintiff prevails if a CPRA action is a catalyst that causes or influences an agency to release records.

As this Division has explained, a plaintiff prevails if a CPRA action merely spurs an agency into releasing records or acts as a catalyst. (Belth v. Garamendi, supra, 232 Cal.App.3d at pp. 901-902.) “A plaintiff is considered the prevailing party if his lawsuit motivated defendants to provide the primary relief sought or activated them to modify their behavior, or if the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired result.” (Ibid., citations omitted.) In fact, it is sufficient that “the litigation substantially contributed to or was demonstrably influential in setting in motion the process which eventually achieved the desired result.” (Id. at p. 902, emphasis added.) “In sum, recovery under the catalyst theory turns on causation.” (Sukumar v. City of San Diego, supra, 14 Cal.App.5th at p. 464, emphasis added.)

If the University felt Muchnick’s request was too broad, it was obligated under law to work with him to refine it consistent with its purpose.

Even if a request as initially stated appears to the agency to be too broad, that does not relieve it of any obligations. Government Code section 6253, subdivision (b), requires an agency to respond to “a request for a copy of records that reasonably describes an identifiable record or records….” “An agency may legitimately raise an objection that a request is overbroad or unduly burdensome. However, the courts need not take literally a request’s language to deem it clearly excessive, but instead should construe the request reasonably, in light of its clear purposes.” (Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1425, citation omitted.)

Furthermore, and crucially, if Muchnick’s request could have been framed to more expressly refer to certain records related to the death and altercation, the University had a legal obligation to help him better identify what he was seeking at the outset. “Generally, public records must be described clearly enough to permit the agency to determine whether the writings or information of the type described in the request are under its control. However, the requirement of clarity must be tempered by the reality that a requester, having no access to agency files, may be unable to precisely identify the documents sought.” (Community Youth Athletic Center v. City of National City, supra, 220 Cal.App.4th at p. 1424, citation and quotation marks omitted, emphasis added.)

Thus, Government Code section 6253.1 places an obligation on an agency to work with a member of the public to better frame a request in light of its superior knowledge of what is there to be found that could be responsive to the overall purpose of the request. Specifically, subdivision (a) of that statute provides: “When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances: (1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated. (2) Describe the information technology and physical location in which the records exist.” This language means that the agency, not the CPRA petitioner, bears the burden of clarifying an unclear request. Furthermore, if the University felt constrained in what it could produce by privacy issues, it should have proactively sought waivers before the litigation. (See Belth v. Garamendi, supra, 232 Cal.App.3d at p. 902 [fee awards that encourage public agencies to seek consent for disclosure of possibly confidential records before refusing requests would further CPRA’s objective of increasing freedom of information].)

Had the University initially carried out its legal duty to work with Muchnick to identify documents that were responsive to the purpose of the request — which was clearly to get to the bottom of the nexus between the strength and conditioning program and the altercation between the two students and the death of Agu and how the University handled the aftermath — that would have allowed him to expressly identify “subsets” and “logical extensions.” However, nothing in the record indicates the University met that obligation before Muchnick filed his petition after being told there was nothing more the University could or would do. In fact, it took the litigation — and the directions of the court — to get to the point where the University finally agreed to work with Muchnick to formulate categories of documents that were responsive to the original request. It makes no sense for the University to complain that these categories were more express than the original request, when it failed in its initial obligation to help better frame that request. And, again, the fact that records were eventually turned over without a judgment requiring it does not prevent the University from being liable for fees. To the contrary, plaintiffs should not be denied attorney fees because resolution in their favor after litigation begins is reached in some sort of collaborative or consensual process. (Belth v. Garamendi, supra, 232 Cal.App.3d at p. 901, citing to California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 742.)

The University has no basis to shelter under FERPA.

The University places emphasis on the role FERPA played and on its efforts — after Muchnick filed his petition — to obtain a FERPA waiver from the family of Agu. In the proceedings below, it repeatedly invoked FERPA as the reason why it could not release records concerning any of the three students named in Muchnick’s CPRA request (i.e., Agu and the two students involved in the earlier altercation). Putting aside the fact that the listed categories allowed for the production of documents, such as communications among university officials, that did not necessarily implicate FERPA, this argument by the University is deeply flawed.

First, neither a deceased student nor his or her family has continuing privacy rights under FERPA. [The U.S. Department of Education has issued an advisory opinion to this effect.]

Thus, far from helping to accommodate Muchnick by gratuitously obtaining a waiver from the Agu family — which is how the University tries to characterize its actions — there was never any basis to invoke FERPA in the first place with regard to Agu. Significantly, the University’s opening brief on appeal concedes that FEPRA did not apply to Agu. That marks a change from what it argued in the trial court. There, it repeatedly said — prior to obtaining the waiver from the Agu family — that FEPRA was a bar to producing records relating to any of the three students named in Muchnick’s CPRA request.

Second, with regard to the other two students, even if there were a basis to withhold some records under FERPA, that would not mean Muchnick was not the prevailing party. This is because, as already shown, it is not necessary that he obtained everything he sought. (Los Angeles Times v. Alameda Corridor Transp. Authority, supra, 88 Cal.App.4th at p. 1391.) And there must have been numerous documents produced after the petition was filed that did not violate the FERPA rights of those other two students (who never did sign waivers) — because otherwise, presumably, those documents would not have been released.

Furthermore, the University cites to no authority indicating that the scope of FERPA is so broad that it prevents the release of all records concerning an event in which a student takes part. And that is no oversight, because there is no such authority. It is worth adding that FERPA anyway does not actually prohibit a university from disclosing any records. Its provisions merely prohibit the federal funding of educational institutions that have a policy or practice of releasing education records to unauthorized persons, and they create no personal rights of enforcement. (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1439, fn. 7.) Furthermore, as noted earlier, case law encourages public agencies to proactively try to obtain waivers before turning down CPRA requests on privacy grounds. (See Belth v. Garamendi, supra, 232 Cal.App.3d at p. 902.)

It is surely obvious that Muchnick was not seeking to pry into the private affairs of any students. He was trying to investigate the football team’s strength and conditioning program and how the University handled the aftermath of the two events at issue. The University cannot take shelter under FERPA. It is irrelevant to the outcome of this appeal.

The University’s Argument That Muchnick’s Petition was “Clearly Frivolous” is Itself Frivolous

The University asks this Court not only to find that Muchnick should not have been found to have prevailed, but that his petition was frivolous such that he should be liable for its fees. This portion of its argument should not even be reached. But if it is reached, it is devoid of any merit.

The University does not even try to point to any improper motive on the part of Muchnick. As for the suggestion that his petition was utterly void of any merit, the fact is it was good enough for the Superior Court to enter judgment in his favor. Muchnick believes the judgment should be affirmed. But even if this Court were to reverse, that would not make Muchnick’s petition frivolous under Marriage of Flaherty standards as applied to the CPRA. At worst, it would render his position merely flawed (not that Muchnick concedes there is any reason so to find). (Bertoli v. City of Sebastopol, supra, 233 Cal.App.4th at pp. 372-373.) Indeed, the suggestion that the University would be entitled to fees is itself frivolous. If a powerful state institution makes such a meritless demand in a case such as this, it suggests a purpose to chill the right of journalists — and citizens generally — to petition under the CPRA by threatening potentially life-changing consequences for those who dare to not take “no” for an answer. And, implicitly, the University is suggesting that this respondent’s brief — disputing its view — is itself necessarily “clearly frivolous” and, therefore, sanctionable, since it is advocating the merits of Muchnick’s position. The University’s unreasonable aggression in this regard is, perhaps, indicative of how it has handled this entire matter and sheds light on why this case has got to this point.

Appellate sanctions may be imposed if only part of an appeal is frivolous. (Maple Properties v. Harris (1984) 158 Cal.App.3d 997, 1010.) Muchnick — in the spirit of winding down, not ramping up, the litigation — is disinclined to bring a motion for appellate sanctions relating to this part of the University’s opening brief. But the University should be admonished for its overreach.