Journalist files lawsuit against UC regents, alleging breach of California Public Records Act

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Katherine Chen/File

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Journalist and freelance author Irvin Muchnick filed a lawsuit against the UC Board of Regents on Tuesday, demanding that the regents comply with his request through the California Public Records Act for all documents regarding the death of former Cal football player Ted Agu.

Agu died Feb. 7, 2014 during a teamwide training session led by the team’s then-assistant coach Damon Harrington. The regents acknowledged their negligence in the death of Agu, settling the lawsuit filed by the Agu family for $4.75 million in April 2016. In his lawsuit, Muchnick is petitioning the courts for a writ of mandate, or a court order, for the university to abide by the CPRA.

Agu’s death came after a locker room altercation in November 2013 between Cal football player Fabiano Hale and a fellow teammate that resulted in Hale’s hospitalization. Controversy arose regarding Harrington’s alleged role in the incident, according to the complaint.

An author of books and articles that critique the college football system, Muchnick said in an email that he hoped a closer examination of internal university documents would result in “great public interest” in this field.

“What I hope will come out of this lawsuit is a more transparent record of Cal’s actions in the 2014 death of Ted Agu and in its precursor incident,” Muchnick said in his email.

According to the complaint, Muchnick has closely reported and analyzed issues of public policy on his website, Concussion Inc. The complaint states that these issues include alleged links, factual and interpretative, between the 2013 altercation and Agu’s death as well as the campus’s oversight of Harrington, among others.

On April 6, 2016, Muchnick issued a request to the UC Berkeley Public Records Act Office for “any and all” written records, reports or emails related to internal investigations regarding Agu’s death and the 2013 altercation. Muchnick received an email April 14, 2016, acknowledging the receipt of his request.

In May 2016, the campus’s PRA office allegedly released one of the documents that Muchnick requested — an incident report by campus police — to The Daily Californian but not to Muchnick, according to the complaint.

“You’re always flying blind with PRA requests: the public agency knows what it has and you don’t,” Muchnick said in an email. “Surely, top administrators deliberated over the Agu death and subsequent multimillion-dollar settlement. Yet the PRA office implies that there isn’t a single pertinent email or internal memo.”

Liane Ko, campus public records coordinator, sent an email to Muchnick on Feb. 10, 2017 with the campus police incident report attached, according to the complaint. In her email, Ko said Muchnick’s request was now considered closed. In his complaint, however, Muchnick alleged that Ko’s reference to the request was unclear.

Muchnick challenged Ko’s statement in a series of emails beginning Feb. 16, 2017. Muchnick alleged that the campus’s PRA office had breached the CPRA.

Campus spokesperson Dan Mogulof said in an email that Muchnick’s allegations are “without merit.”

“The University has provided (Muchnick) with all of the relevant records he has requested in accordance with both the letter and spirit of the California Public Records Act,” Mogulof said in an email. “As per the act’s provisions, certain records were exempted from disclosure so as not to violate student privacy laws. … We look forward to presenting a vigorous defense of our position in a court of law.”

Contact Sunny Tsai at [email protected].

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