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Introduced Version Senate Bill 595 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia Legislature

2018 regular session

Introduced

Senate Bill 595

By Senator Azinger

[Introduced February 19, 2018; Referred to the Committee on the Judiciary]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §1-7-1, §1-7-2, §1-7-3, and §1-7-4, all relating to creating the Protect Our Right to Unite Act; providing its purpose and intent; providing for the protection of privacy of association; authorizing enforcement by state or citizen action; providing for damages and attorneys’ fees; and defining terms.

Be it enacted by the Legislature of West Virginia:


ARTICLE 7. The Protect Our Right to Unite Act.


§1-7-1. Purpose; intent.

(a) The purpose of this article is to protect an individual’s right to support organizations that represent their beliefs without threat of intimidation or loss of employment. If a state actor or entity violates this protection by making an individual’s name, address and support for nonprofit groups public, either by publication on a public website or other type of broadcast, this article gives the citizen a right to bring suit for relief.

(b) It is the intent of this article to recognize that the individual freedom to associate with others for the purpose of advancing ideas and beliefs is a fundamental right, and that such a right is violated when an individual’s privacy is invaded merely due to their association with a group advocating a particular point of view. Guilt by association has no place in a free society. Therefore, this article should be liberally construed in favor of the individual right to association to ensure that private association is not discouraged or suppressed by any actions of the public servants of this state.


§1-7-2. Definitions.

For the purposes of this article:

“Attorney General” includes both the agents of the State Attorney General’s office and the prosecuting authorities of political subdivisions of this state.

“Donor information” means any record, which identifies the association of a private person with an entity, including information that does not directly identify a person but which, in combination with other information, would allow a reasonable person to identify the person involved. Donor information includes, but is not limited to, a person’s name, address, occupation, employer, or any electronic or technical data, including social media accounts, email accounts, location data, or other identifying information.

“Investigate” includes the power to require any member of any public agency who there is reason to believe is or has been acting in violation of this article to appear at a time and place designated in the county in which such person resides or is found, to give such information under oath and to produce all accounts, bills, receipts, books, paper and documents which may be relevant or material to the investigation.

“Public agency” means any department, office, commission, board, or division of state government; and any county, city, district, or other political subdivision or municipal corporation or any department, office, commission, court, or board or any other state or local government unit, however designated.


§1-7-3. Protecting privacy of association.

(a) Except as provided in §6B-1-1 et seq. of this code or successor provisions, and as specified in subsections (d) and (e) of this section, no public agency may require any entity to provide it with donor information.

(b) Where the state or a public agency nevertheless obtains donor information, it may not be released.

(1) In particular, the state or public agency may not release, allow to be released, nor be required to release any record which identifies the association of a private person with an entity organized under Section 501(c) of the Internal Revenue Code (or any successor provision of federal tax law), or which identifies the type or level of financial or nonfinancial support of a private person for such an entity, without the express written permission of the entity or person or at the request of the person.

(2) All donor information is exempt from production under the state’s Freedom of Information Act, §29B-1-1 et seq. of this code.

(c) A public agency may satisfy subsections (a) and (b) of this section by redacting from a record any donor information that would tend to show association of private persons, including nonspecific information that would allow a reasonable person to identify the person or persons involved.

(d) This section does not preclude any lawful warrant for information issued by a court of competent jurisdiction.

(e) This section does not preclude any lawful request for discovery in litigation: Provided, That both of the following qualifications are met:

(1) The state or public agency demonstrates a compelling need for the donor information by clear and convincing evidence; and

(2) The state or public agency obtains a protective order barring distribution of donor information to any governmental employee not directly involved in the litigation or enforcement matter, and to any other person whatsoever.

(f) Whenever possible, record filing rules issued by the state or public agencies should not require the collection of the kind of private association information meeting the definition of donor information or described in §1-7-3(b)(1) of this code. Or, if collected, such information should be discarded when retention is no longer necessary for the original purpose of collection.


§1-7-4. Enforcement by state or private citizen action.

(a) An individual who believes his individual right to privacy has been invaded in violation of this statute may bring suit for any appropriate civil remedy.

(b) If the person who brings the citizen's action prevails, he or she is entitled to be reimbursed by the state for costs and attorneys fees he or she has incurred, and to be made whole for any personal or property damage that would not have occurred but for the violation of this article.

(c)  If the defendant state or public agency prevails, each party is responsible for their own attorneys fees and the costs of the trial shall be split between the parties, except as determined by any applicable statutes concerning frivolous cases.

(d) If the violation is found to have been intentional by the state or public agency, the amount of the judgment, which for this purpose includes costs and attorneys fees, may be trebled as punitive damages.

 

NOTE: The purpose of this bill is to create The Protect Our Right to Unite Act. The bill provides its purpose and intent. The bill provides for the protection of privacy of association. The bill authorizes enforcement by state or citizen action. The bill provides for damages and attorneys fees. The bill defines terms.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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