Full Brief by the Reporters Committee for Freedom of the Press and the First Amendment Coalition in the University of California’s Appeal in the Ted Agu Football Conditioning Death Cover-Up

Below is the full text of the amicus curiae (“friend of the court”) brief by the Reporters Committee for Freedom of the Press and the First Amendment Coalition rebutting the University of California’s appeal of our win in the state Public Records Act case for documents on the cover-up of the circumstances of the 2014 conditioning drill death of football player Ted Agu. A facsimile of the brief can be viewed at http://muchnick.net/muchnickamicusbrief.pdf.

INTRODUCTION

Access to public records is essential in a democracy; it prevents the government from operating in secret and allows the public to monitor the actions of government agencies and officials. For this reason, the California Public Records Act, Cal. Gov’t Code § 6250 et seq. (the “CPRA”), and the California Constitution guarantee the public’s “right of access to information concerning the conduct of the people’s business.” Cal. Const. art. I, § 3(b)(1). Despite this guarantee, financial hurdles can deter public records requesters with even the most meritorious claims from enforcing their rights. Section 6259(d)—CPRA’s fee-shifting provision— was intended to remove those hurdles by entitling members of the public to mandatory attorneys’ fees when they succeed at obtaining records.

Petitioner-Respondent Irvin Muchnick (“Petitioner”), a freelance investigative journalist, is precisely the type of plaintiff that Section 6259(d) is designed to apply to. On April 6, 2016, he submitted a public records request to the Respondent-Appellant, The Regents of the University of California (the “Regents”), for records related to an altercation between football players at the University of California-Berkeley, and the death of another football player, Ted Agu. See Petitioner-Respondent’s Br. (“Pet’r’s Br.”) at 7. Petitioner’s request was part of an investigation into potential abuses in the strength and conditioning programs of university athletic programs. Id. On April 18, 2017, Petitioner filed suit challenging the Regents’ withholding of responsive records. Id. at 8. On October 16, 2020, after litigation over the production of documents had concluded, the Superior Court found that the filing of the Petition caused the production of further records and granted Petitioner’s motion for attorneys’ fees. Id. at 12. In doing so, the Superior Court denied the Regents’ motion seeking to be declared the prevailing party, and rejected the Regents’ assertion that the Petition was frivolous. Id.

Amici Reporters Committee for Freedom of the Press (“RCFP”) and First Amendment Coalition (“FAC”) (collectively, “amici”) agree with Petitioner that the issue of attorneys’ fees under Section 6259(d) was correctly decided by the Superior Court and that Petitioner is entitled to recover his fees. Id. at 21-43. Amici write to underscore the important legal and policy considerations that support affirmance of the Superior Court’s decision or, alternatively, dismissal of this appeal.

The Regents’ arguments contravene the presumption of access under the CPRA and, if accepted, would flip the protections and incentives of Section 6259(d) on their head. First, in attempting to foist attorneys’ fees upon Petitioner by arguing that the Petition was “frivolous,” the Regents’ seek to chill members of the public, including journalists, from going to court to enforce their rights—a result that would harm the accountability of public institutions. And, indeed, the financial challenges faced by the news media in carrying out its constitutionally recognized newsgathering role are already especially acute for freelance journalists like Petitioner. Second, the Regents’ broad characterization of the Federal Educational Rights and Privacy Act, 20 U.S.C. § 1232g (“FERPA”), as an all-encompassing privacy mandate is not only legally meritless, but also, if accepted, would hinder crucial investigative journalism by improperly shielding records of great public interest. Accordingly, amici urge this Court to dismiss the appeal or affirm the judgment of the lower court.

ARGUMENT

I. The Regents’ attempted characterization of the Petition as “clearly frivolous” is without merit and seeks to chill future public records litigation.

The California Public Records Act (“CPRA” or the “Act”) is predicated on the principle that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” Cal. Gov’t Code § 6250. Indeed, the California Supreme Court has recognized Section 6259(d)—the Act’s fee-shifting provision—as one of the Act’s primary “protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure.” Filarsky v. Superior Ct., 28 Cal. 4th 419, 427 (2002); see also Braun v. City of Taft, 154 Cal. App. 3d 332, 349 (1984) (“Section 6259 was enacted to carry out the purposes of the California Public Records Act. Through the device of awarding attorney fees, citizens can enforce its salutary objectives.”). Conversely, fees may only be awarded to the responding government agency if a requester’s lawsuit is determined to be “clearly frivolous.” Cal. Gov’t Code § 6259(d).

By incorrectly characterizing the Petition as “clearly frivolous,” the Regents press an interpretation of Section 6259(d) that would chill future public records requesters from pursuing litigation to vindicate their right to access information—in direct contravention of the purpose for that provision.

A. The Regents’ argument that the Petition is “clearly frivolous” is an incorrect interpretation of Section 6259(d).

The Regents claim that the Petition was “frivolous as filed and as maintained” because the Superior Court never granted Petitioner’s motions on the merits of the Regents’ exemption claim and the Petition was not a catalyst for the Regents’ release of records. See Respondent-Appellant’s Br. (“Regents’ Br.”) at 55. But even assuming, arguendo, the Petition was an unsuccessful challenge to the Regents’ exemption claims, or that it was not a catalyst for the Regents’ release of records (which the Superior Court found it was), that does not make the Petition “clearly frivolous.”

In determining whether a CPRA suit is frivolous, courts have relied on the standard discussed in In re Marriage of Flaherty, where the California Supreme Court cautioned that the power to punish attorneys and plaintiffs for frivolous appeals should be used “sparingly.” 31 Cal. 3d 637, 651 (1982). The Court reasoned that due to the difficulty of drawing the line between a frivolous appeal and a meritless appeal, the punishment should be used “to deter only the most egregious conduct.” Id. (emphasis added); see also Bertoli v. Sabastopol, 233 Cal. App. 4th 353, 369 (2015) (holding that an interpretation of Section 6259 to deter only “the most egregious conduct by a PRA petitioner clearly advances the people’s right of access to public records”) (citation omitted). Indeed, the First Appellate District declined to find a suit frivolous even when the PRA request at issue was “overly aggressive, unfocused, and poorly drafted to achieve their desired outcomes.” Bertoli, 233 Cal. App. 4th at 371.

Here, the Regents proffer no evidence, whatsoever, that the Petition represents “egregious conduct” on the part of Petitioner. To the contrary, there is ample evidence in the record that Petitioner filed the action in a good-faith effort to obtain records for his reporting on a matter of great public interest. As an investigative reporter covering sports and collegiate athletics, Petitioner has helped ensure that institutions are accountable by reporting on issues ranging from dangerous training regimens to sexual assault scandals in athletics. See, e.g., Irvin Muchnick, Welcome to Plantation Football, L.A. Times (Aug. 31, 2003), https://perma.cc/HQ4WJFLK; Irvin Muchnick, Podcasts Stir New Sex Abuse Allegations Against Former Irish Olympic Swim Coach in the U.S., Gazette (Feb. 27, 2021), https://perma.cc/RER7-FYY7. Here, Petitioner sought records as part of an investigation into the suspicious death and injuries of student-athletes at the University of California-Berkeley. Pet’r’s Br. at 7. And, since making that public records request, Petitioner has continued to write on the topic of abusive training and conditioning regimes at the University of California football teams. See, e.g., Irvin Muchnick, Football’s Unknown Epidemic: When Black Players Die Suddenly, the Cover-Up Begins, Salon (Nov. 13, 2021), https://perma.cc/Z4KF-NT6M . Far from being “frivolous,” the Petition falls squarely within the purpose of the CPRA: it sought to enforce the public’s right to monitor, and hold accountable, the actions of public institutions and officials.

     B. The Regents’ attempt to characterize the Petition as frivolous seeks to chill future litigation by public records requesters and deter investigative reporting.

By characterizing the Petition here as frivolous, the Regents seek to saddle ordinary requesters who would assert their rights under the CPRA with potentially devastating attorneys’ fees. The threat of such fees, alone, could chill the willingness of members of the public with legitimate claims to pursue litigation to enforce their right to access information—especially in cases presenting close questions of law. And by upsetting the deliberate scheme of incentives and protections under Section 6259(d), the Regents’ position, if accepted, would stymie reporting on matters of public interest and concern.

California courts have been reluctant to find a CPRA suit to be frivolous under Section 6259(d). See Bertoli, 233 Cal. App. 4th at 369. Outside the context of the CPRA, California courts have recognized that the injudicious award of fees to a defendant discourages plaintiffs from enforcing their rights through litigation. For instance, the Court of Appeal, Second District, found that under the Fair Employment and Housing Act (“FEHA”), a plaintiff’s suit can only be found frivolous, and fees awarded to the defendant, in “extreme cases.” Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 91 Cal. App. 4th 859, 868 (2001). As the court explained, if such awards were applied in the absence of a finding of frivolousness, clients with meritorious claims may “opt to forgo the rights and remedies provided by FEHA, rather than risk an attorney fees award which may well destroy their financial well-being. Such a result would be directly contrary to the public policies FEHA was designed to vindicate.” Id. at 868. The same logic applies in the context of Section 6259(d): if public records requesters risk being burdened with devastating attorneys’ fees, they will be more reluctant to go to court to vindicate their rights.

As the news media industry continues to address financial challenges, arguments like the Regents’ can be very real roadblocks to public-interest journalism. A 2021 report from the Pew Research Center showed that newsroom layoffs had increased dramatically in recent years, with newsroom employment in the United States dropping by 26% since 2008, and newspaper newsroom employment falling 57% between 2008 and 2020, from roughly 71,000 jobs to around 31,000. Mason Walker, U.S. Newsroom Employment Has Fallen 26% Since 2008, Pew Rsch. Ctr. (July 13, 2021), https://perma.cc/HV5W-XUUF. And financial concerns are only heightened among freelance and independent journalists like Petitioner. Two surveys conducted by the Freelancers Union of their members in March 2020 and April 2020 found that 80% of respondents who self-identified as journalists had lost work by the end of April 2020. Molly McCluskey, Estimates of COVID-19’s Impact of Journalism Fail to Count Freelancers, Whose Livelihoods Have Vanished Overnight, Poynter (June 23, 2020), https://perma.cc/EA7U-Y5U3. Freelance journalists, like Petitioner, may already face significant challenges when filing public records cases due to a lack of available legal and financial resources; they will be even less likely to pursue such litigation with the looming threat that an agency will argue their suit should be deemed frivolous.

Section 6259(d) was meant to ensure that members of the public and journalists who lacked financial resources could nonetheless enforce their right of access to information through litigation. The Regents’ position is wholly incompatible with this purpose, and contrary to the CPRA’s promise of an open government accountable to the public.

 C. Petitioner should not be penalized for the imbalance in information between requesters and agencies, which is inherent in public records litigation.

Throughout their brief, the Regents attempt to cast the Petition as frivolous by describing the Petitioner’s request as “too broad” and “deficien[t].” Regents’ Br. at 27-28, 34. In doing so, the Regents ignore the well-accepted assumption in the public records context that members of the public do not have perfect knowledge as to how government entities store or organize their internal documents. In the context of the federal Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,[footnote 1] for example, courts have recognized that FOIA’s provisions assume that there is an imbalance of information and expertise between members of the public and the agency. For instance, FOIA does not require that requests be written exactly as an agency expert might craft them to be valid, and agencies have a duty to construe requests “liberally” when identifying responsive records. Inst. for Just. v. Internal Revenue Serv., 941 F.3d 567, 572 (D.C. Cir. 2019) (citing Nation Mag. v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). Noting that “other sister circuits have recognized that federal agencies have a duty to construe FOIA records requests liberally,” the Ninth Circuit has affirmed that such “a duty of liberal construction accords with the basic purpose of FOIA to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” Yagman v. Pompeo, 868 F.3d 1075, 1080 (9th Cir. 2017) (internal citation omitted); see also Rubman v. U.S. Citizenship & Immigr. Servs., 800 F.3d 381, 389-91 (7th Cir. 2015) (concluding that the defendant agency was required to liberally construe plaintiff’s request for “all documents” despite the ambiguity of the word “documents” in the request); Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1255 (11th Cir. 2008) (holding that the EPA was obliged to interpret the request “liberally in favor of disclosure” even if the request was ambiguous). Crucially, a federal agency “‘must be careful not to read [a] request so strictly that the requester is denied information the agency well knows exists’” in its files. Conservation Force v. Ashe, 979 F. Supp. 2d 90, 102 (D.D.C. 2013) (quoting Hemenway v. Hughes, 601 F. Supp. 1002, 1005 (D.D.C. 1985)).

California courts have similarly recognized that “without certain knowledge of the nature of the documents, the requester may be unable to provide the specificity an agency may require.” Cmty. Youth Atheltic Ctr. v. City of Nat’l City, 220 Cal. App. 4th 1385, 1425 (2013). They have further recognized that “government agencies—particularly those with an incentive not to assist in the dissemination of their files—may demand an unreasonable level of specificity.” Am. C.L. Union of N. Cal. v. Superior Ct., 202 Cal. App. 4th 55, 85 (2011) (citation omitted). As such, when faced with a PRA request, agencies have affirmative obligations under Government Code § 6253.1 to remedy this asymmetry. Specifically, the agency must “(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; […] and (3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.” Cal. Gov’t Code § 6253.1(a). The agency “is obligated to make reasonable efforts toward clarification and production.” Cmty. Youth Athletic Ctr., 220 Cal. App. 4th at 1418.

Here, Petitioner sought records “dealing with any internal investigation within the University of California-Berkeley of the facts surrounding: (a) the death of Ted Agu; [and] (b) an altercation between football players J.D. Hinnant and Fabiano Hale, which occurred on or around November 1, 2013.” Pet’r’s Br. at 7-8. Given the imbalance of knowledge between Petitioner and the Regents as to the exact nature and organization of the latter’s files, and the Regents’ affirmative obligations under Section 6253.1, Petitioner had every right to expect that the Regents would construe his request broadly, including to encompass the records eventually released and “make reasonable efforts toward clarification and production.” Cmty. Youth Athletic Ctr., 220 Cal. App. 4th at 1418.

At the minimum, the Regents’ characterization of Petitioner’s request as “too broad” and “deficien[t],” Regents’ Br. at 27-28, 34, is specious. It not only attempts to impose an improperly stringent burden upon Petitioner not required by or consistent with the CPRA, but also goes further by claiming Petitioner (and presumably other requesters in the future) should face potentially crippling attorneys’ fees if they file and subsequently litigate such requests. The high bar to finding a suit to be “frivolous” under Section 6259(d) and the purpose of the CPRA to uphold the public’s right to access information militates against such a reading. Galbiso v. Orosi Pub. Util. Dist., 167 Cal. App. 4th 1063, 1088 (2008) (finding that Section 6259 must be interpreted “in keeping with the overall remedial purpose of the Public Records Act to broaden access to public records”). The Regents’ attempt to punish a public records requester for not meeting some arbitrary and unreasonable standard chills future requesters from pursuing litigation where there is the slightest possibility of not prevailing.

II. The Regents’ Proffered Interpretation of FERPA is overbroad.

In the effort to support their characterization of Petitioner’s public records request and Petition as frivolous, the Regents contend that Petitioner’s initial request was too narrow as “FERPA bars the University from disclosing records relating to its students” and that “FERPA was triggered by [Petitioner’s] overly specific formulation of [the] request which identified students by name.” See Regents’ Br. at 28-29. However, the Regents’ representation of FERPA as an all-encompassing bar to the disclosure of any records related to students—even those of public interest—is simply inaccurate. Further, were it adopted, such an overbroad interpretation of FERPA would hinder investigative journalism and shield educational institutions from public scrutiny.

A. FERPA is a narrow statute that applies only to a policy or practice of failing to secure centrally maintained education records.

Contrary to the Regents’ arguments, FERPA does not prohibit the disclosure of education records “relate[d] to its students.”[footnote 2] Regents’ Br. at 28. FERPA applies only to “education records” that are centrally maintained in a file. The Supreme Court rejected an expansive reading of “education records” in Owasso Independent School District No. I-011 v. Falvo, 534 U.S. 426, 433 (2002), holding that FERPA applied only to records “maintained” by the school. In Owasso, the Court found that the records at issue—peer-graded classroom assignments—did not fall under FERPA’s purview because they had not been filed in a central repository, and were thus not retrievable as a student’s permanent record. Id.

The California Court of Appeal, Third District, has affirmed this definition, finding that the analogous definition of “pupil record” under Education Code § 49061:

“does not encompass every document that relates to a student in any way and is kept by the school in any fashion. . . . We agree with the Supreme Court that the statute was directed at institutional records maintained in the normal course of business by a single, central custodian of the school. Typical of such records would be registration forms, class schedules, grade transcripts, discipline reports, and the like.”

BRV, Inc. v. Superior Ct., 143 Cal. App. 4th 742, 754 (2006), as modified on denial of reh’g (Oct. 26, 2006).

Here, the Regents’ description of FERPA as a blanket mandate of confidentiality as to any and all “records relating to its students” is simply a misrepresentation of FERPA. Compare Regents’ Br. at 28 with Owasso, 534 U.S. at 433 (holding that FERPA only applies to education records that are “maintained,” or kept in a school’s record room or on a secure database) and BRV, Inc., 143 Cal. App. 4th at 752 (noting that federal courts interpreting FERPA have found the following records not to be education records: “students’ individual assignments handled by student graders in their separate classrooms; transcripts of students’ depositions in a sexual harassment case against a school coach that were not maintained by the school; and a voluntary student survey participated in anonymously”) (citations omitted). Amici are aware of no case from any court that has adopted such an expansive interpretation like that of the Regents—one that would be directly contrary to binding Supreme Court precedent interpreting FERPA’s nondisclosure provisions.

To be clear, such a broad interpretation of FERPA would transform it into a tool to conceal virtually all school records.[footnote 3] FERPA was not designed to operate in this manner. It “was clearly not intended as an ‘invisibility cloak’ that can be used to shield any document that involves or is associated in some way with a student.” Univ. of Ky. v. Kernel Press, Inc., 620 S.W.3d 43, 57 (Ky. 2021); see also Kirwan v. The Diamondback, 721 A.2d 196, 204 (Md. 1998) (“Prohibiting disclosure of any document containing a student’s name would allow universities to operate in secret, which would be contrary to one of the policies behind [FERPA].”); 120 Cong. Rec. 14,580 (1974) (statement of Sen. James Buckley) (“The secrecy . . . that seem[s] to be a frequent feature of American education is disturbing.”). Indeed, the court in BRV, Inc., v. Superior Court noted the absurd policy implications if FERPA were interpreted so expansively, cautioning that if FERPA were read to bar the disclosure of investigation reports of a student’s verbal and physical harassment, it would place educators “‘in an untenable position: they could not adequately convey to the parents of affected students that adequate steps were being undertaken to assure the safety of the student.’” 143 Cal. App 4th at 754 (quoting Jenson v. Reeves, 3 F. App’x 905, 910 (10th Cir. 2001)). If educational institutions are permitted to broadly and improperly assert FERPA as a bar to releasing any records related to students, not only will journalists not be able to carry out their duty of reporting on matters of public interest, but the public will be left in the dark.

CONCLUSION

For all the reasons stated above, Amici urges the Court to dismiss the appeal or affirm the decision of the Superior Court.

[footnote 1] The CPRA is modeled on the FOIA and judicial interpretations of that federal statute may be useful in construing the CPRA. BRV, Inc. v. Superior Ct., 143 Cal. App. 4th 742, 756 (2006).

[footnote 2] FERPA does not prohibit the disclosure of any records; rather, it states that no funds shall be made available to educational institutions that have a policy or practice of improperly releasing specific “education records.” See 20 U.S.C. § 1232g(b)(1).

[footnote 3] The Regents’ characterization of FERPA falls into a troubling trend of educational institutions asserting overbroad interpretations of FERPA in response to requests for records that an educational institution is reluctant to disclose. Indeed, universities have incorrectly invoked FERPA to obstruct records ranging from athlete concussion statistics to sexual assault reports. See Adam Goldstein, Department of Education Releases FAQ on Student Privacy Law and School Safety, FIRE (Feb. 12, 2019), https://perma.cc/8SQ6-LLYB. More recently during the pandemic, the University of Alabama—which had one of the highest infection counts among the nation’s universities at the time—went as far as to cite FERPA to not only withhold the number of infections from the public, but to also ban faculty from speaking about the COVID-19 infections on campus. Meryl Kornfield, Universities Can’t Use Privacy Laws to Withhold Data on Coronavirus Outbreaks, Experts Say, Wash. Post (Sept. 2, 2020), https://perma.cc/DU9W-QV5H.