LONG BEACH, California. (OIC) The Open Information Collective has scored a major win – both for local advocates and for open government across the state – in the November 7 meeting of the CSU Board of Trustees.
Board directions to security guards handling the meetings, which come from the CSU Long Beach Police Department, allowed them to illegally restrict the number of people who could physically view the meeting (even when ample space was available). At the November meeting in particular, they also only let in people who were going to give public comments, creating an even greater violation.
At the September meeting, hundreds of members of the public were forced to queue inside the building to enter the meeting, despite over half the available seats being open, and an entire extra row (not being counted) being “reserved”. Many more were forced to wait outside, not even being allowed to enter the building. Armed police officers pushed individuals around, which was an even more significant issue in previous meetings.
In response to this, the OIC led a grassroots effort, using cure-and-correct Bagley-Keene letters, to get the CSU to change its policies. G. Andrew Jones, the top lawyer for the CSU, refused, making false claims about what happened and trying to re-write history. Knowing this, the OIC prepared a confrontational letter that anyone at the meeting could show to security guards.
During the November meeting, a member of Students for Quality Education, Alex Gonzales, was kept out of the meeting because he was not registered for public comment. After contacting Founding Member Amy Parker, he was provided with the OIC’s defense-of-rights letter, and provided it to the security guards. They were swayed by the letter, and allowed him to exert his rights. This was a critical victory, showing the OIC and the public at large were in the right – as any individual could tell – and that the CSU establishment was wrong. He has since become an OIC Member, and is continuing to fight alongside the OIC against these issues.
The legal issues with what the CSU was doing were astounding. With regards to the November meeting specifically, in addition to attempting to keep out most members of the public, they were also trying to make a clearly illegal circumvention of the no-registration policy:
No person shall be required, as a condition to attendance at a meeting of a state body, to register his or her name, to provide other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his or her attendance.
California Government Code, section 11124
By restricting access to only those who had registered for public comment, they made registration a condition of attendance. This is so clearly illegal as to be insulting to the public to even attempt it. For this policy to be instituted after the OIC informed the CSU of their violations of the law is even more of an insult, and should not have been taken so lightly.
What makes this even more important is that the no-registration policy is designed to allow individuals to attend a meeting anonymously. This is critical for privacy, and for many individuals, their safety. California has a large population of undocumented individuals, particularly among the student body. It is often not safe to enroll their names into official lists, particularly if they are going to speak about being undocumented, due to the potential of those lists being obtained by immigration authorities. Anonymity also protects many activists and observers, as state crack-downs on activists are becoming more and more common.
The key violation, which forms the backbone of Bagley-Keene, is found in section 11123(a):
All meetings of a state body shall be open and public and all persons shall be permitted to attend any meeting of a state body except as otherwise provided in this article.
California Government Code, section 11123(a)
The legal meaning of “all persons” is that no one can be prohibited from entering the physical location of a meeting unless a specific exception exists. There is no exception that allows a meeting to exclude people who are not providing public comment. There is no exception that allows a meeting to exclude people because of some arbitrary internal limit with no connection to fire codes or the actual space available. And, unlike G. Andrew Jones has claimed previously, there is no exception that allows an agency to say that teleconferencing is a substitute to the physical presence requirement; while 11123(b) provides information on teleconferencing, it also indicates that it is an alternative means of access, and it does not allow an agency to keep an individual out of a meeting that happens to have a teleconference option. In fact, it directly states that teleconferencing is an additional location, not usable as a primary redirect:
This section does not prohibit a state body from providing members of the public with additional locations in which the public may observe or address the state body by electronic means, through either audio or both audio and video.
California Government Code, section 11123(b)(2)
Violations of Bagley-Keene are no laughing matter. First, and most importantly, violating Bagley-Keene is a serious criminal offense for every involved member of the agency:
Each member of a state body who attends a meeting of that body in violation of any provision of this article, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this article, is guilty of a misdemeanor.
California Government Code, section 11130.7
While not as clearly delineated as with the Ralph M. Brown Act, the equivalent of Bagley-Keene for local agencies, the California Constitution does also still mention the fundamental principle of Bagley-Keene as a guaranteed right:
The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.
California Constitution, Article I, section 3(b)(1)
The message of the Constitution is clear: the public – regardless of whether they’re exercising their voice, and whether or not “the public” is one individual or 1,000 – has the right to attend and scrutinize the meetings of public agencies. This sentiment is echoed even more clearly in the opening lines of Bagley-Keene:
The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
California Government Code, section 11120
Reading almost like an open government manifesto, Bagley-Keene leaves nothing to interpretation when it comes to principles: the government is subject to the people, and must be open to the people, regardless of what the government thinks about said arrangement.
The CSU is one of the more notorious and recent violators of Bagley-Keene, but it’s not the only one. Corrupt agencies across the state have violated, and continue to violate, Bagley-Keene. The University of San Diego’s Center for Public Interest Law noted in 2016 that the State Bar of California – which one would think would know and follow the law, given it is a representative body of lawyers – was violating Bagley-Keene in a meeting which, ironically, was about eliminating Bagley-Keene. The State Bar is an immensely powerful organization, and keeping people from seeing its deliberations gravely threatens the entire public. A coalition between the ACLU for California, CaliforniansAware, the First Amendment Coalition, and the Electronic Frontier Foundation also wrote in 2015 that the California Law Enforcement Telecommunications System, which is used by California police to access data on citizens (sometimes improperly) from a wide variety of California, federal, and other states’ agencies.
Without the help of people like OM Alex Gonzales, this victory wouldn’t have been possible. If you want to help continue to fight against governments hiding their conduct, secure First Amendment rights, and protect individual privacy, join the OIC today!