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EPIC v. Virginia Department of State Police: Fusion Center Secrecy Bill

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  • Supreme Court Upholds Residents-Only Provision in Virginia Open Records Law: The Supreme Court ruled today that Virginia's freedom of information law, which allows only Virginia residents to pursue open government requests, does not violate the U.S. Constitution. Petitioners argued that the law impermissibly burdened out-of-state residents ability to provide open records services to clients, to purchase and transfer Virginia property, to access Virginia court proceedings, and to access important public information. But the Court found in McBurney v. Young that the majority of state records were available to non-residents in some form and that there was no fundamental "right to access public information" at the time the Constitution was adopted. EPIC and other open government groups filed a amicus brief arguing that residents-only provisions limit public access to information necessary for political advocacy. In 2008, EPIC obtained documents from Virginia revealing an agreement to limit oversight of a state fusion center. For more information, see EPIC: McBurney v. Young and EPIC v. Virginia Department of State Police: Fusion Center Secrecy Bill. (Apr. 29, 2013)
  • Senate Report Finds Fusion Centers "Wasteful," Likely Violate Federal Privacy Laws: A Senate Investigations Committee has released a new report on "State and Local Fusion Centers", government data warehouses that store an enormous amount of information on Americans. The Senate report found that Fusion Centers, operated by the Department of Homeland Security, "often produced irrelevant, useless or inappropriate intelligence" and stored records on U.S. persons, "possibly in violation of the Privacy Act." In 2007, EPIC's "Spotlight on Surveillance" warned that Fusion Centers would lead to "abuse and misuse." In subsequent FOIA cases, and comments to the DHS, EPIC helped document the many problems with the federal Fusion Center program, including lack of oversight and ineffective privacy safeguards. For more information, see EPIC: Information Fusion Centers and Privacy and EPIC: EPIC v. Virginia Department of State Police: Fusion Center Secrecy Bill. (Oct. 3, 2012)
  • EPIC Prevails in Virginia Fusion Center FOIA Case. Yesterday, Richmond General District Court held that EPIC "substantially prevailed" on the merits of its freedom of information lawsuit against the Virginia State Police. EPIC filed the case after the State Police refused to disclose documents describing the federal government's involvement in efforts to limit Virginia's transparency and privacy laws. Through the litigation, EPIC uncovered a secret contract between the State Police and the FBI that limits the rights of Virginia citizens to learn what information the State Police collect about them. The court's letter opinion requires the State Police to pay EPIC's litigation costs, but not its attorneys' fees. For more information about fusion centers, see EPIC's Fusion Center Page (May 9)
  • EPIC Obtains Documents Revealing Federal Role In State Fusion Center Secrecy. Pursuant to a Freedom of Information Act lawsuit, EPIC has obtained a Memorandum of Understanding between the FBI and the Virginia State Police that limits the state's open government law. The agreement requires the state agency to comply with federal regulations that restrict the disclosure of public records about the Virginia Fusion Center that would otherwise be available to the public. But many other documents that EPIC is seeking about the fusion center and communications between the State Police and federal agencies have not yet been disclosed. At a hearing today in Richmond, a District Court judge required the State Police to produce all records that EPIC has sought by Monday, April 14. The Virginia Governor is currently considering a bill that would limit the state's open government and privacy laws for the Virginia Fusion Center. (Apr. 9)
  • EPIC Sues to Compel Disclosure of Documents About Federal Role in Virginia Secrecy Bill. Today, EPIC filed a Virginia Freedom of Information Act lawsuit (pdf) challenging the Virginia State Police's failure to make public documents relating to the role of federal agencies in recent legislative efforts to limit the state's open government and privacy laws for "fusion centers." These intelligence databases collect information on ordinary citizens and have raised substantial privacy concerns. Press reports and statements from Virginia officials have raised questions about federal involvement in the Virginia legislation. The lawsuit follows EPIC's original requests (pdf). (Mar. 21)
  • Virginia Lawmakers Consider Fusion Center Secrecy Bill as Role of Federal Agencies Remains Unknown. Today the Virginia Senate is considering legislation that would limit the state's open government and privacy laws for "fusion centers." These intelligence databases collect information on ordinary citizens and have raised substantial privacy concerns. Press reports and statements from Virginia officials have also raised questions about federal involvement in the Virginia legislation. EPIC filed Freedom of Information Act requests with two Virginia agencies on February 12, 2008 to determine whether the Dept. of Justice or the Dept. of Homeland Security participated in the development of the legislation. Despite the expiration of the statutory deadline and the pending vote in the Virginia Assembly, the state agencies have not released a single public record in response to EPIC's requests. (Feb. 26)
  • EPIC Seeks Documents About Federal Role in Effort to Limit Accountability of State "Fusion Centers."EPIC filed a Freedom of Information Act request (pdf) with the Virginia State Police today. EPIC's request seeks documents about a plan that would shroud the Virginia Fusion Center, a database that collects detailed information on ordinary citizens, in secrecy. The Virginia legislature is considering a bill that would limit Virginia's open government and privacy statutes, as well as Virginia's common law right of privacy, for Virginia agencies connected to the Fusion Center. Press Groups have criticized the proposed law, and warned that, if passed, Virginia citizens can "say hello to Big Brother." EPIC's FOIA request focuses on the possible role of the US Department of Justice and the US Department of Homeland Security in the development of the Virginia legislation. (Feb. 12)

Background

In January 2008, HB 1007 was introduced before the Virginia General Assembly. The bill exempts the Virginia Fusion Intelligence Center (Virginia Fusion Center) - and other Commonwealth agencies assigned to the Virginia Fusion Center - from Virginia privacy and government transparency laws. The bill includes an anti-whistleblower provision and would also prevent the enforcement of privacy rights established by Virginia courts. The Virginia Fusion Center is one of several similar entities established by state governments throughout the United States. HB 1007 was passed by the Virginia Assembly on March 8, 2008, and subsequently signed by the Governor.

HB 1007

HB 1007 adds two sections (Section 52-48 and Section 52-49) to Chapter 11 of the Virginia Code. Section 52-48(A) exempts the Virginia Fusion Center from the government transparency requirements set forth in the Virginia Freedom of Information Act, as well as the privacy provisions set forth in the Virginia Government Data Collections and Disseminations Practices Act. Section 52-48(B) shields Virginia employees connected to the Virginia Fusion Center from subpoena. Sections 52-48(C)-(D) bar individuals from disclosing any information received from the Virginia Fusion Center, and impose criminal penalties for disclosure. Section 52-49 eliminates several long-standing civil rights of action (e.g. defamation and invasion of privacy) for citizens harmed by information provided to the Virginia Fusion Center.

The Virginia Freedom of Information Act (FOIA) states that its purpose is to "ensure the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted." The Virginia FOIA recognizes that "[t]he affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government." The Virginia FOIA sets forth procedures for "ensuring the people of the Commonwealth ready access to public records." By exempting the Virginia Fusion Center from the Virginia FOIA, HB 1007 guarantees that the affairs of the Virginia Fusion Center will be "conducted in an atmosphere of secrecy."

The Virginia Government Data Collections and Disseminations Practices Act recognizes that "[a]n individual's privacy is directly affected by the extensive collection, maintenance, use and dissemination of personal information," "[t]he increasing use of computers and sophisticated information technology has greatly magnified the harm that can occur from these practices," and "[a]n individual's opportunities to secure employment, insurance, credit, and his right to due process, and other legal protections are endangered by the misuse of certain of these personal information systems." Moreover, the statute "preserve[s] the rights guaranteed a citizen in a free society" by "establish[ing] procedures to govern [government] information systems containing records on individuals." The Virginia Government Data Collections and Disseminations Practices Act bars "personal information system[s] whose existence is secret." The statute also prohibits the use of inaccurate information, prohibits the misuse of personal information, prevents "personal information collected for one purpose from being used for another purpose," and provides procedures for citizens to "learn the purpose for which information has been recorded and particulars about its use and dissemination." By exempting the Virginia Fusion Center from the Virginia Government Data Collections and Disseminations Practices Act, HB 1007 removes these statutory privacy protections from personal information collected by the Virginia Fusion Center.

The Virginia Fusion Center

Fusion centers are intelligence databases that collect information on ordinary citizens. They have raised substantial privacy concerns. Federal guidelines call for fusion centers to accumulate and retain information about citizens from a wide range of public and private sources. Such information includes, but is not limited to: financial records, credit reports, medical records, internet and email data, video surveillance from retail stores and sporting facilities, data from preschools, and welfare records. The Virginia Fusion Center's operations involve contact with federal agencies and federal programs. Press reports and statements from Virginia officials have raised questions about federal involvement in the Virginia legislation. Shortly after HB 1007 was introduced, the Virginia Fusion Center's administrative head implied that federal policies might have been the impetus for HB 1007, but did not provide further details. For more information about fusion centers, see EPIC's page: Information Fusion Centers and Privacy.

EPIC's Virginia FOIA Requests and Subsequent Lawsuit

On February 12, 2008, EPIC filed Virginia FOIA requests with the Virginia Department of State Police (the VSP) for public records that directly relate to alleged federal government involvement with HB 1007. EPIC requested the following public records:

  • all correspondence, communications, and records of meetings between the VSP and the U.S. Department of Homeland Security concerning the Virginia Fusion Center, including funding, development, and impact on the Virginia Freedom of Information Act and the Virginia Collections and Disseminations Practices Act;all correspondence, communications, and records of meetings between the VSP and the U.S. Department of Justice concerning the Virginia Fusion Center, including funding, development, and impact on the Virginia Freedom of Information Act and the Virginia Collections and Disseminations Practices Act; and
  • all correspondence, communications, and records of meetings between the VSP and the Institute for Intergovernmental Research concerning the Virginia Fusion Center, including funding, development, and impact on the Virginia Freedom of Information Act and the Virginia Collections and Disseminations Practices Act.

EPIC urged the VSP to provide the requested public records as soon as possible because of the public records' relevance to the Virginia General Assembly's consideration of (then-pending) HB 1007 - a bill that, if passed, would impact the rights of Virginia residents. On February 19, 2008, the VSP sent a letter to EPIC. The letter acknowledged the VSP's receipt of EPIC's public records requests, and further stated that the VSP would not disclose any public records in response. On March 21, 2008, EPIC filed a lawsuit under the Virginia Freedom of Information Act challenging the VSP's failure to disclose public records and failure to comply with the Virginia Freedom of Information Act.

Documents Obtained by EPIC Through Its Lawsuit

On April 7, 2008, EPIC obtained documents from the VSP as a result of EPIC's ongoing lawsuit. But many other documents sought by EPIC were not disclosed. The disclosed documents include a Memorandum of Understanding between the FBI and the VSP that limits Virginia's open government and privacy laws. The agreement requires the VSP to comply with federal regulations (28 CFR Part 16) that restrict the disclosure of public records about the Virginia Fusion Center that would otherwise be available to the public. The federal regulations contain at least thirty-seven exemptions from open government and privacy laws. The Memorandum also requires the VSP to refer open government requests to federal agents if the requests relate to information shared by the FBI with the VSP. EPIC also obtained documents that indicate that the federal government requires the VSP to implement a fusion center privacy policy that is consistent with federal guidelines. Such guidelines may impact privacy rights granted by the Virginia Government Data Collections and Disseminations Practices Act.

Legal Documents

EPIC v. the Virginia Department of State Police, et al., Case No. 08-01357 (Va. Gen. Dist. Ct. filed March 12, 2008)

Freedom of Information Act Documents

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