Over the past pandemic year, life events and activities have moved online that we once believed must be held in person: weddings, classes, conferences, cocktail parties. Many aspects of government business also transitioned from requiring a presence in person to being facilitated through online platforms. California’s open meeting laws inscribed in the Bagley-Keene Open Meeting Act of 1967 mandates that all meetings of State boards and commissions be open and accessible to the public, with agendas posted well in advance. It provides for remote participation via “teleconference” but requires that each location, including a member’s private home or office, be open and accessible to the public for the occasion. While these regulations intend to ensure that the State’s activities are transparent to its constituents, they actually restrict access to those members of the public with the time and financial resources to attend meetings in person. Now is the time to change these rules to consider the affordances of 21st-century technology.
Given the circumstances of the pandemic, Governor Newsom signed Executive Order N-29-20 in March 2020 that suspended certain provisions of Bagley-Keene and allowed state agencies, commissions and boards to meet using current video-conferencing platforms. Last month Executive Order N-08-21 clarifies that these requirements will continue to be waived until September 30 unless the statute is amended. This is an opportune moment for the State Legislature and the Governor to update legislation to expand access to government for many more Californians.
I experienced personally the limitations imposed on state bodies by Bagley-Keene when I chaired the California Blockchain Working Group from August 2019 to July 2020. This 20-member group of professionals, civil servants, elected officials, and technology experts met three times in person before Covid restrictions precluded this possibility and we turned to online platforms to complete our work. Although disruptive in some ways, the shift also offered advantages: convenience for working group members, reduced environmental impact and expense of travel, and greater accessibility to a more geographically distributed public.
For its June 2021 report The Government of Tomorrow: Online Meetings, the Little Hoover Commission surveyed state boards and commissions bound by Bagley-Keene. Based on evidence over the past 15 months, it found similar results: increased accessibility, no drop in frequency of meetings, and cost savings to taxpayers from reduced travel expense. It urges the legislature and governor to make permanent the changes to Bagley-Keene created by Governor Newsom’s Executive Order.
These steps are essential. If implemented, additional advantages could follow, including improved representation in the deliberative bodies themselves; had the Blockchain Working Group been allowed to use remote video conferencing from the outset, we could have recruited a more geographically diverse panel of experts, unconstrained by distance and travel time. Current accessibility features of online conferencing platforms, such as real-time captioning, also expand the public’s ability to observe and participate.
I would encourage legislators to go even further and consider revising the statute to allow use of tools for collaborative writing as well. Anyone working in an office environment over the past year has likely become familiar with collaborative platforms such as Google docs, Microsoft Teams or other products that allow multiple authors to contribute to a single document. Our Working Group was charged with creating a report with recommendations to the legislature. But we were prohibited from using such tools because it would have violated open meeting requirements. To complete the report, a government staff member had to collate individual contributions to circulate to the larger group and the public, a process repeated numerous times through subsequent revisions. It was unnecessarily cumbersome, given today’s online tools that offer fine-grained sharing permissions to control levels of access for a given document. The process could have been more open to the public—and reduced taxpayer-paid staff time—had we been allowed to use such platforms.
Granted, cybersecurity is a concern, to ensure the integrity of meetings and the documents they produce. (We experienced one harrowing “Zoom-bomb” experience before learning how to lock down the platform effectively—lessons many have learned in the past year.) I am certain that technologists and professionals will be up to the task as these platforms become more ubiquitous. Government, like the private sector, should support rather than hinder these productivity gains. Amending Bagley-Keene now will accomplish the spirit of transparency and openness that it originally sought to uphold.