In the Public Records Act Case About the Ted Agu Football Death Cover-Up, the University of California Didn’t Even Stop Short of Outright Lying in Order to Get Its Way at the Court of Appeal

ECW Press has announced the publication next year of Without Helmets or Shoulder Pads: The American Way of Death in Youth Football Conditioning. Three chapters of this book by Irvin Muchnick will chronicle, in order, the 2014 death of Ted Agu; UC Berkeley’s cover-up of the circumstances of that death; and the surrounding corruption, including the university’s scorched-earth legal tactics to try to keep the facts of the cover-up from emerging.

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PREVIOUSLY:

“In Reversal, Appellate Court Rules UC ‘Prevailing Party’ in Public Records Case – Changing Nothing About Our Daylighting of Massive New Info in Cal’s Ted Agu Football Death Cover-Up,” November 7, https://concussioninc.net/?p=15070

“$125,000 Was a Small Price For Cal-Berkeley’s Already Successful Ted Agu Football Death Cover-Up. Fighting Even That Is Designed to Intimidate Anyone Daring to Use the Public Records Act to Investigate Cover-Ups,” November 8, https://concussioninc.net/?p=15073

“California Court of Appeal Is Setting a Harmful Precedent For Designating the ‘Prevailing Party’ in Public Records Act Cases Resulting in New Documents Exposing Public Agency Malfeasance,” November 9, https://concussioninc.net/?p=15079

“In Ted Agu Football Conditioning Death Cover-Up Public Records Act Case, Reporters Committee for Freedom of the Press and First Amendment Coalition Tell Appellate Court That University of California Seeks ‘to Chill Members of the Public, Including Journalists,’” March 24, https://concussioninc.net/?p=14970

“Flashback: Three Stories About the University of California’s Ted Agu Cover-Up That Were Specifically Enabled by Our Successful Public Records Act Lawsuit,” March 28, https://concussioninc.net/?p=14980

by Irvin Muchnick

I’ve spent this week and the four previous posts explaining how I believe California’s 1st District Court of Appeal got it wrong in Muchnick v. University of California Regents – my years-long state Public Records Act case, which daylighted more than 700 new pages of documents adding to my reporting’s exposure of the cover-up of the circumstances surrounding the 2014 death of Cal-Berkeley football player Ted Agu.

Reversing the lower court, a three-judge Court of Appeal panel ruled that I was, despite the above, not the “prevailing party.” This costs my attorney reimbursement of his legal fees and sets a terrible precedent that could scare off other journalists and the public interest lawyers supporting them.

Now I want to add a word about how the flagship public university in the country’s largest state pulled this off.

In defense of its image and its marriage to the football industry, UC used sharp tactics more often associated with a tobacco or gun company than an institution of higher learning. These included an unprecedented and out-of-bounds attempt to brand me a “clearly frivolous” litigant – which, if successful, would have kicked in monetary sanctions against me.

The Court of Appeal didn’t fall for the “clearly frivolous” gambit. But you can’t help but wonder if the court, in ordering no fees for anyone – even though the Public Records Act provides for fees for the petitioner when he “catalyzes” the production of new, previously withheld important documents – did rationalize that it was reaching some sort of Solomonic compromise, when it was actually doing something very dangerous for the whole public information landscape.

Evidently, Michael R. Goldstein, senior counsel at the UC Office of the President, felt so bullet-proof about his capacity to play fast and loose with the truth that he didn’t even refrain from communicating blatant misrepresentations in his court filings. In briefs and even in a sworn declaration, Goldstein said the university first suggested that the Agu family be asked to provide a privacy waiver. Then, in a later brief, Goldstein told the court that I should be held “clearly frivolous,” in part because I was the one who had proposed an Agu family privacy waiver. In fact, Goldstein said both contradictory things inside the same brief!

(By the way, the whole Agu privacy waiver “controversy,” contrived by UC, was a red herring, spectacularly irrelevant to the simple fact that it was my lawsuit that catalyzed the release of new information, and that I had been forced to sue in order to bring this to pass.)

Let’s call Goldstein’s calculated misstatements what they were: lies.

Lies that, far from casual, were repeated again and again. Reemphasized to distraction. Rising to the level of unindicted perjury. More on this next week.