§15A-12-5. Confidentiality and immunity from service of process; penalties.
(a) Papers, records, documents, reports, materials, databases, or other evidence or information relative to criminal intelligence, any terrorism investigation, threat assessment, or information on infrastructure which if released would compromise the public safety in the possession of the West Virginia Fusion Center shall be confidential and shall not be subject to the West Virginia Freedom of Information Act (§29B-1-1 et seq. of this code): Provided, That this exemption from the West Virginia Freedom of Information Act may be lifted in the event a court determines in a state or federal whistleblower action that unlawful or unauthorized activity has taken place, and shall in no way restrict the Legislature’s select oversight committee from access to all such information. Every five years, the West Virginia Fusion Center shall conduct a review of information contained in any database maintained by the West Virginia Fusion Center. Data that has been determined not to have a nexus to criminal or terrorist activity shall be removed from such database. A reasonable suspicion standard shall be applied when determining whether or not information has a nexus to terrorist activity for non-U.S. citizens, but a probable cause standard shall apply for U.S. citizens: Provided, however, That all such determinations shall be reported to the Legislature’s select oversight committee at regularly scheduled oversight audit and committee meetings.
(b) No person having access to information maintained by the West Virginia Fusion Center shall be subject to subpoena in a civil action in any court of the state to testify concerning a matter of which he has knowledge pursuant to his access to criminal intelligence information maintained by the West Virginia Fusion Center.
(c) No person or agency receiving information from the West Virginia Fusion Center shall release or disseminate that information without prior authorization from the West Virginia Fusion Center.
(d) Intelligence data in the possession of a criminal or juvenile justice agency, state or federal regulatory agency, or peace officer, or disseminated by such agency or peace officer, are confidential records under §29B-1-1 et seq. of this code.
(e) Any person who knowingly disseminates information in violation of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $200 nor more than $1,000, or be confined in jail for not more than 20 days, or both fined and confined. If such unauthorized dissemination results in death or serious bodily injury to another person, such person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than five years: Provided, That all state and federal Whistleblower Protection Act protections shall apply to any person whose disclosures are found to have been made to report or protect against violation or attempted violation of any and all restrictions and prohibitions against conducting non-law enforcement intelligence operations against U.S. citizens as set forth in federal or state law or in contravention of the Constitution of the United States, including, but not limited to, 50 U.S.C. §3036(d).
(f) Any person, being an officer or employee of the United States, the State of West Virginia or of any department, agency, or political subdivision thereof, or any person from the private sector or industry assigned to or working with the West Virginia Fusion Center in any capacity, who knowingly publishes, divulges, discloses, or makes known in any manner, or to any extent not authorized by law, any critical infrastructure or national intelligence information protected from disclosure by this section coming to him or her in the course of his or her employment, affiliation, or official duties with the West Virginia Fusion Center, or by reason of any examination or investigation made by, return, report, or record made to or filed with, such department or agency, officer or employee thereof, shall be guilty of a felony and, upon conviction, be imprisoned in a state correctional facility for not less than one year, and shall be removed from office or employment and affiliation with the West Virginia Fusion Center: Provided, That all state and federal Whistleblower Protection Act protections shall apply to any person whose disclosures are found to have been made to report or protect against violation or attempted violation of any and all restrictions and prohibitions against conducting non-law enforcement intelligence operations against U.S. citizens as set forth in federal or state law or in contravention of the Constitution of the United States, including, but not limited to, 50 U.S.C. §3036(d).
(g) The West Virginia Department of Homeland Security shall provide legal counsel to the West Virginia Fusion Center to serve as privacy and civil liberties counsel to the West Virginia Fusion Center. Such attorney shall advise the West Virginia Fusion Center director and its deputy director on all matters necessary to ensure compliance with all applicable federal and state privacy or civil liberties laws, obligations, restrictions, and prohibitions as set forth herein.
(h) For purposes of this article:
(1) “Criminal intelligence information” means data or information that has been evaluated and determined to be relevant to the identification and criminal activity of individuals or organizations that are reasonably suspected of involvement in criminal activity.
(2) “Critical Infrastructure” means systems and assets as defined in 42 U.S.C. § 5195c(e).
(3) “National Intelligence” means data or information determined to meet the definition stated in 50 U.S.C. §3003 (5): Provided, That Fusion Center activities and operations relating to National Intelligence shall at all times strictly abide by all restrictions and prohibitions against conducting non-law enforcement intelligence operations against U.S. citizens as set forth in federal or state law or in contravention of the Constitution of the United States, including, but not limited to, 50 U.S.C. §3036(d).
