HB 4758 — Creation of the Joint Oversight Committee on the Fusion Center

WEST VIRGINIA LEGISLATURE REGULAR SESSION IntroducedCommittee Substitute for House Bill 4758 By Delegates Jennings, Kimble,Ridenour, RidenourKimble and C.

Pritt [Introduced[Originating Januaryin 15,the 2024;Committee on the Judiciary;

ReferredReported to the Committee on Veterans’February Affairs5, and2024] HomelandCS Securityfor then Judiciary ] Intr HB 2024R30434758 A BILL to amend and reenact §15A-12-1, §15A-12-2, §15A-12-3, §15A-12-4, §15A-12-5 and §15A-12-7 of the Code of West Virginia,1931, as amended, all relating to the Fusion Center;

providingexempting non-the disclosureJoint agreementOversight requirements;Committee from the open meetings act;

providing non-disclosure agreement requirements;

Provided, That the Fusion Center shall not knowingly participate in activity, or knowingly cooperate, with any federal agency, or a contractor for any federal agency, when that participation or cooperation involves illegal or improper actions any action prohibited or 1 CS for HB 4758 restricted under this article or by federal or state law prohibiting intelligence gathering activities Intr HB 2024R3043 upon persons lawfully in the United States.

(b) The Fusion Center shall collect, integrate, analyze, disseminate, and maintain such information to support local, state, and federal law-enforcement agencies, other governmental agencies, and private persons, organizations, entities, or agencies in detecting, preventing, investigating, preparing for, responding to, mitigating and or recovering from any possible or actual criminal or terrorist activity, as well as any hazard or threat, including to the state’s critical infrastructure, in compliance with applicable state and federal laws and regulations, including 28 CFR 23:23 and 6 U.S.C.

§485:

Provided, however, That under no circumstance shall the Fusion Center or its officers, directors, agents, or employees engage in, or be ordered or directed to engage in prohibited non-lawnon- law enforcement intelligence gathering activities on citizens of the United States persons lawfully in the United States as set forth in any federal or state law or in contravention of the Constitution of the United States, nor shall the Fusion Center engage in or collaborate with any other entity on any information or intelligence gathering for any political purpose nor be solicited for, or cooperate in, any investigation of a public official or candidate for elected office, unless reasonable grounds exist to suspect the subject of the investigation is, or may be, involved in criminal conduct.

Any suchprohibited information or intelligence gathering will be reported to the United States Attorney for the Southern 2 CS for HB 4758 District of West Virginia, the Office of the Kanawha County Prosecuting Attorney, and the 2 Intr HB 2024R3043 leadership of the Joint Oversight Committee on the Fusion Center within 72 hours of discovery by the Director.

Any information or intelligence gathered regarding election fraud, election tampering, or other issues designed to provide the citizens of the state with which impede or impair state citizens of the right to tamper-free elections will be reported to the West Virginia Secretary of State's Office and the leadership of the Joint Oversight Committee on the Fusion Center within 72 hours of discovery by the Director.

Within the secure facilities, the Fusion Center shall house a Homeland Secure Data Network (HSDN) Homelandappropriate Securitysystems Informationand Networknetworks (HSIN) in order to access both classified and criminal justice information as permitted by state and federal law and ensure that appropriate security measures are in place for:

3 IntrCS for HB 2024R30434758 (d) (e) The West Virginia Fusion Center shall do all acts necessary and proper to carry out the powers granted to the board of the State Resiliency Office.

(3) promote and improve intelligence sharing among public safety and public service agencies at the federal, state, and local levels, and with critical infrastructure and key resource 4 IntrCS for HB 2024R30434758 entities within the private sector subject to all restrictions and prohibitions recited in this article;

citizens persons lawfully in the United States as set forth in federal or state law or in Intr5 CS for HB 2024R30434758 contravention of the Constitution of the United States, including, but not limited to, 50 U.S.C.

Provided, however, thatThat the Fusion Center shall not allow a federal agency or contractor for a federal agency to work inside the Fusion Center when it knows or has reason to know that such federal agency or federal contractor is presently engaged or intends to engage in unlawful intelligence-gathering activity against a citizen of West Virginia persons lawfully in the United States.

citizens persons lawfully in the United States as Intr6 CS for HB 2024R30434758 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.

The deputy director shall either have a current, valid federal security clearance at the appropriate level, and training and certifications commensurate with the position, or be eligible for that Intr7 CS for HB 2024R30434758 clearance, and be in the process of obtaining the appropriate clearance, and shall be responsible for assisting the director in:

and (4) the president of the West Virginia Chiefs of Police Association or designee;

and one senior status judge to be selected by agreement between the Speaker of the House of Delegates and the President of the Senate Provided, That in the event the membership of a political party is less than 15 percent in the House of Delegates or Senate, then the membership of that political party from the legislative house with less than 15 percent membership may be one from that house.

The committee Joint Oversight Committee on the Fusion Center shall be chaired by the President of the Senate and the Speaker of the House of Delegates8 orCS theirfor Intr HB 2024R30434758 Delegates or their respective designees.

All other members appointed to the select committee Joint Oversight Committee on the Fusion Center by the select committee Joint Oversight Committee on the Fusion Center chairs shall serve until their successors are appointed as provided in this section either they vacate the office through which they gained membership, are removed by the agreement of the Speaker of the House of Delegates and the President of the Senate, or the conclusion of the Legislature within which they were appointed.

The select Joint Oversight Committee on the Fusion Center's committee members, and staff counsel, and staff for the Speaker of the House of Delegates or President of the Senate must have the appropriate security clearance execute an appropriate non-disclosure agreement in a form satisfactory to the West Virginia Department of Homeland Security in order to obtain information that is classified review lawcases, enforcementcrimes, sensitiveincidents, informationand thatreports isin classifiedwhich all Personally Identifiable Information (PII) has been redacted or deidentified or intelligence and shall be subject to the same rules, regulations, and laws as the employees of the West Virginia Fusion Center for safeguarding both classified and law enforcement sensitive information or intelligence.

These select Joint Oversight Committee on the Fusion Center's committee members, and counsel, and staff shall be advised of the restrictions and protocol for handling such information or intelligence and shall sign a statement of understanding as well as a confidentiality non-disclosure agreement.

(b) Members of the select committee Joint Oversight Committee on the Fusion Center may enter and inspect the West Virginia Fusion Center at any time staff is present with select joint 9 CS for HB 4758 oversight committee members and counsel and staff,staff for the Speaker of the House of Delegates or President of the Senate, with or without notice to the West Virginia Fusion Center.

(c) Meetings of the select committee Joint Oversight Committee on the Fusion Center shall be confidentialat the call of the Speaker of the House of Delegates or President of the Senate and shall be confidential, and the information and materials, in any medium, including hard copy and Intr HB 2024R3043 electronic, coming to the attention of or placed in the custody of the Select Committee Joint Oversight Committee on the Fusion Center shall not be subject to the West Virginia Freedom of Information Act as set forth in §29B-1-1 et seq.

(d) The select committee Meetings of the Joint Oversight Committee on the Fusion Center may conduct proceedings in a confidential executive session for the purpose of conducting business, establishing policy, reviewing investigations, and interrogating a witness or witnesses.witnesses are exempt from §6-9A-1 et seq.

of this code.

10 CS for HB 4758 (f) If any person subpoenaed to appear at any hearing shall refuse to appear or to answer inquiries there propounded, or shall fail or refuse to produce books, records, documents, papers, or any other tangible thing within his or her control when the same are demanded, the select committee Joint Oversight Committee on the Fusion Center shall report the facts to the circuit court of Kanawha County or any other court of competent jurisdiction and that court may compel obedience to the subpoena as though the subpoena had been issued by that court in the first instance:

Provided, That prior to seeking circuit court relief, the select committee Joint Oversight Intr HB 2024R3043 Committee on the Fusion Center may, in its discretion, first demand the Secretary of Homeland Security or the director of the West Virginia Fusion Center under whom an employee has failed to appear or which has failed to produce requested or subpoenaed material to appear before the select committee Joint Oversight Committee on the Fusion Center and address the basis for the failure to comply and whether compliance will be forthcoming.

11 CS for HB 4758 (h) The Fusion Center shall report annually in writing by May 1st beginning in 2024 to the Joint Oversight Committee on the Fusion Center as set forth in §15A-12-3 of this code regarding the performance of the Fusion Center.

(2) a description of any and all funding sources or other streams of income, received by or on behalf of the Fusion Center during the reporting period, and include therein, the source, purpose, amount and current disposition of said Intr HB 2024R3043 funds, derived from any source other that the annual Budget of the State of West Virginia;

and (3) the unclassified narrative must include both privacy audits performed in the prior year and de- identified information from those audits regarding the cases, crimes, incidents and reports on which the Fusion Center worked during the prior year that were reviewed during the audits:audits.

Provided, Nothing contained in herein shall prevent the Joint Oversight Committee on the Fusion Center from requiring reporting of additional information which would be subject to the protection of the non-disclosure agreement as set forth in §15A-12-3 of this code.

12 CS for HB 4758 (b) Nothing in any agreement shall obligate any nongovernmental entity to provide information nor establish any duty for any nongovernmental entity to assume any police or law enforcement responsibilities.

(c) Failure of any governmental or nongovernmental entity to abide by the restrictions and use limitations set forth by the West Virginia Fusion Center may result in the suspension or termination of use privileges, discipline sanctions imposed by the user’s employing agency, or Intr HB 2024R3043 criminal prosecution.

(d) Any and all interagency memoranda of understanding and participating public or private persons, organizations, entities, or agencies described in this section shall be subject to all restrictions and prohibitions described in this sectionsection. and to unrestricted review, inspection, and auditing by the Joint Oversight Committee on the Fusion Center and its counsel and staff.

Data that has been determined not to have a 13 CS for HB 4758 nexus to criminal or terrorist activity shall be removed from such database.

Provided, however, That all such determinations shall be reported to the Legislature’s select oversight committee Joint Oversight Committee on the Fusion Center at Intr HB 2024R3043 regularly scheduled oversight audit and committee meetings.

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 14 CS for HB 4758 against U.S.