Gun Control: Potential Effects of Next-Day Destruction of NICS Background Check Records (07/10/2002, GAO-02-653}
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-02-653
TITLE: Gun Control: Potential Effects of Next-Day Destruction of NICS Background Check Records
DATE: 07/10/2002
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United States General Accounting Office:
GAO:
Report to the Chairman, Subcommittee on Oversight of Government
Management, Restructuring, and the District of Columbia, Committee on
Governmental Affairs, U.S. Senate:
July 2002:
Gun Control:
Potential Effects of Next-Day Destruction of NICS Background Check
Records:
GAO-02-653:
Contents:
Letter:
Results in Brief:
FBI Plans Would Address Most Potential Effects of Next-Day Destruction
of Records:
Next-Day Destruction of Records Would Affect Nonroutine Audits and
Related Support to Law Enforcement:
Next-Day Destruction of Records Would Have Public Safety Implications:
Next-Day Destruction of Records Could Lengthen Time Needed to Complete
Background Checks:
Next-Day Destruction of Records Would Lessen the FBI�s Ability to
Respond to Inquiries:
Effect of a Next-Day Destruction Policy on ATF Inspections of Gun
Dealer Records is Unclear:
Agency Comments:
Appendix I: Retention of National Instant Criminal Background Check
Records:
History of NICS Records Retention Periods:
DOJ�s Current Notice of Proposed Rulemaking:
Appendix II: Objectives, Scope, and Methodology:
Objectives:
Scope and Methodology of our Work:
Appendix III: Comments from the Department of Justice:
Table:
Table 1: Number of Calendar Days Taken to Identify NICS Proceed
Transactions That Should Have Been Denied (July 3, 2001, through Jan.
2, 2002):
Abbreviations:
ATF: Bureau of Alcohol, Tobacco and Firearms:
DOJ: Department of Justice:
FBI: Federal Bureau of Investigation:
NICS: National Instant Criminal Background Check System:
[End of section]
United States General Accounting Office:
Washington, DC 20548:
July 10, 2002:
The Honorable Richard J. Durbin:
Chairman, Subcommittee on Oversight of Government Management,
Restructuring, and the District of Columbia:
Committee on Governmental Affairs:
United States Senate:
Dear Mr. Chairman:
This report responds to your request for information about how the
Federal Bureau of Investigation�s (FBI) National Instant Criminal
Background Check System (NICS) would be affected if records related to
sales of firearms by licensed dealers were destroyed within 24 hours
after the transfers were allowed to proceed. [Footnote 1] Under the
Brady Handgun Violence Prevention Act, licensed dealers generally are
not to transfer firearms to an individual until a NICS search
determines that the transfer will not violate applicable federal or
state law. [Footnote 2] For instance, persons prohibited by federal law
from receiving a firearm include convicted felons, fugitives, unlawful
drug users, and aliens illegally or unlawfully in the United States.
However, if the background check is not completed within 3 business
days, the dealer is not prohibited from transferring the firearm.
Under current NICS regulations, records of �allowed� firearms sales can
be retained for up to 90 days in a computer database (i.e., the NICS
audit log) after which the records must be destroyed. [Footnote 3] The
audit log contains information related to each background check
requested by a licensed firearms dealer, including the NICS response
(e.g., proceed or denied) and the history of all activity related to
the transaction. According to the NICS regulations, information on
allowed firearms sales is used only for purposes related to ensuring
the proper operation of the system or conducting audits of the use of
the system. Operational uses include evaluating system performance,
identifying and resolving operational problems, generating statistical
reports, and supporting the appeals process. System audits, in general,
are designed to (1) monitor internal employee performance and adherence
to established procedures and (2) discover misuse, e.g., unauthorized
checks, or avoidance of the system.
On July 6, 2001, the Department of Justice (DOJ) published proposed
changes to the NICS regulations [Footnote 4] that would reduce the
maximum retention period from 90 days to less than 1 day for records of
allowed firearms sales. [Footnote 5] According to DOJ, the proposed
changes balance the legitimate privacy interests of law-abiding
firearms purchasers and the department�s obligation to enforce federal
laws to prevent prohibited persons from purchasing firearms. The
proposed next-day destruction policy would not apply to firearms sales
that are allowed to proceed by default. Rather, records related to
these �unresolved� transactions could continue to be retained for up to
90 days. Appendix I contains additional information about retention of
NICS records and DOJ�s proposed changes to the current NICS
regulations.
As agreed with your office, we studied the effects that next-day
destruction of records would have on NICS operations and system audits.
This report provides an overview of the extent to which the FBI�s
planned changes to NICS operations and routine system audits [Footnote
6] address the effects of the proposed next-day destruction policy.
Also, in more detail, this report discusses the effects such a policy
would have on (1) nonroutine system audits and related support to law
enforcement agencies; (2) specific aspects of NICS operations,
including the FBI�s ability to initiate firearm-retrieval actions, the
time needed to complete background checks, and the FBI�s ability to
respond to inquiries about completed checks; and (3) the ability of the
Bureau of Alcohol, Tobacco and Firearms (ATF) to inspect gun dealer
records.
Our work focused on NICS background checks conducted by the FBI� and
not those conducted by a state agency�because states that conduct NICS
checks generally have their own retention laws that may not be affected
by a federal next-day destruction policy. [Footnote 7] However, such a
policy would affect states that do not have their own retention laws.
In performing our work, we interviewed officials from the FBI and ATF,
and we reviewed documentation they provided us. We also reviewed
applicable NICS regulations and policy guidance related to uses of the
audit log. It is important to note that the proposed revisions to the
current NICS regulations, as well as the FBI�s current plans for
operating under a next-day destruction policy, could change before the
final regulations are published. Such changes could affect the
information contained in this report. We performed our work from August
2001 to May 2002 in accordance with generally accepted government
auditing standards. Our scope and methodology is discussed in greater
detail in appendix II.
Results in Brief:
While routine system audits may not be adversely affected by DOJ�s
proposed requirement for next-day destruction of records, other current
uses of NICS records would be affected, with consequences for public
safety and NICS operations. The FBI is considering certain actions to
mitigate these effects but these actions would not cover all
consequences.
The FBI has drafted plans that would address most potential effects of
the proposed policy for next-day destruction of records. In developing
these plans, the FBI reviewed each area of NICS operations and
identified the changes needed in computer systems, work processes,
policies, and procedures. [Footnote 8] According to NICS officials,
under the FBI�s plans, most areas of NICS operations would not be
adversely affected. The FBI�s plans also show that many routine audits
currently conducted monthly or quarterly�such as audits of the accuracy
of NICS examiners� decisions�would have to be conducted on a real-time
(hourly or daily) basis by adding more staff and changing procedures.
NICS officials told us, however, that the FBI would not lose any
routine audit capabilities under the proposed policy for next-day
destruction of records.
On the other hand, a next-day destruction policy would adversely affect
certain nonroutine audits of the system. Specifically, under current DOJ
policy, if a law enforcement agency has information that indicates that
an individual is prohibited from purchasing firearms under federal law,
the agency may request that the FBI check whether the name appears in
NICS records of allowed transfers. If the FBI finds a record showing an
allowed transfer to a �prohibited person� (e.g., a transfer to an alien
who is illegally or unlawfully in the United States), that record
indicates a potential violation of law, and the FBI may disclose the
record to the appropriate law enforcement entity. These audits of the
accuracy of responses given by NICS, and the additional (secondary)
benefit of assisting law enforcement investigations, generally would
not be possible under a next-day destruction policy.
Also, a next-day destruction policy would adversely affect some aspects
of current NICS operations, which would have public safety implications
and could lessen the efficacy of current operations. Regarding public
safety, the FBI would lose certain abilities to initiate firearm-
retrieval actions when new information reveals that individuals who
were approved to purchase firearms should not have been. Specifically,
during the first 6 months of the current 90-day retention policy, the
FBI used retained records to initiate 235 firearm-retrieval actions, of
which 228 (97 percent) could not have been initiated under the proposed
next-day destruction policy. [Footnote 9] Also, a next-day destruction
policy could lengthen the time needed to complete background checks and
place additional burdens on law enforcement agencies, including state
and local courts, because NICS examiners, while researching new
transactions, may have to make repeat calls for information that
otherwise would have been retained in audit log records. Furthermore,
the FBI would be less able to respond to (1) gun dealer questions about
completed transactions and (2) purchaser and congressional questions
related to the NICS appeals process, because information on allowed
firearms transfers may not be available at the time of inquiry. The FBI
is considering actions that could partially mitigate the adverse
effects of a next-day destruction policy on NICS operations.
Finally, ATF headquarters officials told us that a next-day destruction
policy would not affect ATF�s ability to inspect gun dealer records.
However, our work indicates that the effect of such a policy on ATF
inspections is unclear. For example, under the proposed next-day
destruction policy, NICS records of allowed firearms transfers would no
longer be available for a detailed comparison with dealer records of the
purportedly same transactions. Officials at the five ATF field offices
we contacted provided mixed views on the value of current comparisons of
NICS records with gun dealer records. If the proposed next-day
destruction policy is implemented, ATF plans to replace the detailed
comparisons with a �recheck� procedure, under which ATF inspectors
would request that the FBI rerun selected NICS checks based on
information taken from gun dealer records.
On June 24, 2002, in commenting on a draft of this report, DOJ said that
our primary concern regarding a possible inability to retrieve a
relatively small number of erroneously transferred firearms was
unfounded because (1) DOJ is considering an option to retain the
federal firearms dealer�s identification number for 90 days and (2) ATF
has ample investigative avenues for retrieving firearms. We disagree;
our analysis indicates that these may be only partial solutions.
FBI Plans Would Address Most Potential Effects of Next-Day Destruction
of Records:
To analyze and address the potential effects of the proposed requirement
for next-day destruction of audit log records, the FBI reviewed all
areas of NICS operations and has developed or is considering many
operational and procedural changes. More specifically, the FBI has
prepared a draft �concept of operations� document, which discusses the
changes that would be needed in the NICS program. The document addresses
applicable changes and modifications needed in computer systems and
work processes, as well as policies and procedures. For example, the
draft addresses computer system and procedural changes needed to purge
NICS audit log records, work process changes needed to monitor examiner
performance, and procedural changes needed to process appealed NICS
transactions. According to NICS officials, under the FBI�s draft plans,
most areas of NICS operations would not be adversely affected.
The FBI also has reviewed the types of routine system audits conducted
by the NICS Program Office�s Internal Assessment Group to determine how
these audits would be affected by the proposed next-day destruction of
audit log records. [Footnote 10] As a result of this review, the FBI
plans to modify existing audit procedures, combine current audits for
efficiency, and develop new audits. The FBI also determined that many
of the audits would have to be conducted on a real-time (hourly or
daily) basis, versus the current monthly or quarterly basis. Such
audits include assessments of examiners� decisions to allow firearms
transfers to proceed and analyses of the processing of appealed
transactions. The FBI plans to add 10 staff members to conduct these
real-time audits, which would bring the total number of audit staff to
19. According to NICS officials, by modifying audit procedures,
changing audit schedules, and increasing the number of audit staff, the
Internal Assessment Group will not lose any routine audit capabilities
under the proposed next-day destruction of records.
Next-Day Destruction of Records Would Affect Nonroutine Audits and
Related Support to Law Enforcement:
While the NICS Internal Assessment Group may not lose routine audit
capabilities under next-day destruction of records, such a policy would
affect certain nonroutine audits of the system. Without these nonroutine
audits, the FBI would be less able to assist law enforcement
investigations. Specifically, if a law enforcement agency has
information that indicates that an individual is prohibited from
purchasing firearms under federal law, the agency may request that the
FBI check whether the name appears in NICS records of allowed
transfers. Under current processes, if the FBI finds a record showing
an allowed transfer to a prohibited person (e.g., a transfer to an
alien who is illegally or unlawfully in the United States), that record
indicates a potential violation of law, and the FBI may disclose the
record to the appropriate law enforcement entity responsible for
investigating, prosecuting, or enforcing that law. An FBI official told
us that performing such checks has been a longstanding practice used to
audit the accuracy of responses given by NICS, with the additional
(secondary) benefit of assisting law enforcement investigations.
Following the September 11 terrorist attacks, DOJ�s Office of Legal
Counsel issued a legal opinion that supported this longstanding FBI
practice. [Footnote 11] The October 1, 2001, legal opinion noted that
checking names of known prohibited persons against audit log records of
allowed transfers provides a check on the accuracy of responses being
given by the system and, thus, constitutes an examination and
verification of the system�s records and the accuracy with which they
are being handled. In explaining the rationale for permitting the FBI
to conduct such checks, the legal opinion also noted the following:
�We gather that although the checking of names the FBI has in mind will
serve the purpose of auditing the NICS, the more immediate purpose is
assisting the investigation of the September 11, 2001 terrorist
attacks. Assisting criminal investigations generally is not one of the
purposes for which the NICS regulations authorize the FBI to use audit
log records. Nonetheless, we see nothing in the NICS regulations that
prohibits the FBI from deriving additional benefits from checking audit
log records as long as one of the genuine purposes for which the
checking is carried out is the permitted purpose of auditing the use of
the system. That the NICS has been using this method of auditing the
system all along suggests to us that this method is more than simply a
cover for using audit log records for a purpose other than those
authorized by the NICS regulations.�
According to an FBI official, on October 17, 2001, DOJ�s Office of Legal
Policy informed the FBI that DOJ was reviewing the legal opinion and
instructed the FBI to refrain from accessing information in the NICS
audit log for investigatory purposes pending the outcome of the review.
The official told us that, in late-December 2001, the Office of Legal
Policy notified the FBI that, consistent with the legal opinion, a
search of information in the NICS audit log could be conducted with
regard to known prohibited persons for auditing purposes. The FBI does
not maintain data on how often law enforcement agencies request NICS
checks on known prohibited persons, but the FBI official told us that
such inquiries frequently occur. The official noted, however, that
performing such checks generally would not be possible given next-day
destruction of records.
Next-Day Destruction of Records Would Have Public Safety Implications:
The proposed policy requiring next-day destruction of NICS records would
lessen the FBI�s ability to initiate firearm-retrieval actions involving
transactions the FBI initially allowed to proceed but subsequently
changed to denials. [Footnote 12] Specifically, during the first 6
months of the current 90-day retention policy, the FBI used retained
records to initiate 235 firearm-retrieval actions related to reversed
transactions, of which 228 (97 percent) could not have been initiated
under the proposed next-day destruction policy. [Footnote 13] Such a
policy also would have affected other NICS transactions in which
firearms could have been transferred but were not. Further, procedures
designed to help NICS identify prohibited persons who may be in
possession of firearms would be adversely affected by next-day
destruction of records.
Retained Records Were Used to Initiate Firearm-Retrieval Actions:
According to NICS officials, after the FBI informs a gun dealer that a
firearm transfer may proceed, the FBI may receive information from a
court, law enforcement agency, or other source that would prohibit the
individual from possessing a firearm. In such cases, after a NICS
examiner confirms the prohibiting factor, the audit log record showing
the allowed firearm transfer is changed to a denial. Available records
(retained under the current 90-day retention policy) are then used to
(1) identify and contact the gun dealer to verify whether a firearm was
actually transferred to the prohibited person and, if so, (2) notify
the local police department�as determined by the purchaser�s
address�and ATF. In each of these instances, ATF guidance requires that
ATF open an investigation and coordinate attempted retrieval of the
firearm with state or local law enforcement to ensure public safety.
During the first 6 months of the current 90-day retention policy�July 3,
2001, through January 2, 2002�the FBI initiated 235 firearm-retrieval
actions based on information received after NICS examiners initially
allowed the transfers to proceed. [Footnote 14] FBI data on these 235
retrieval actions show that an average of 34 calendar days elapsed
between the FBI�s initial decision to allow the transfers to proceed
and the date that the FBI reversed the transactions to denials. As
table 1 shows, of the 235 transactions:
* 7 (3 percent) were reversed in less than 1 calendar day, the amount of
time records would be maintained under the proposed next-day
destruction of NICS records;
* 116 (49 percent) were reversed in 30 calendar days or less; and;
* 192 (82 percent) were reversed in 60 calendar days or less.
Table 1: Number of Calendar Days Taken to Identify NICS Proceed
Transactions That Should Have Been Denied (July 3, 2001 through Jan. 2,
2002):
Time to deny transactions: Less than 1 day:
Transactions, Number: 7
Transactions, Percent: 3;
Cumulative transactions, Number: 7;
Cumulative transactions, Percent: 3.
Time to deny transactions: 1 to 10 days;
Transactions, Number: 46;
Transactions, Percent: 20
Cumulative transactions, Number: 53;
Cumulative transactions, Percent: 23.
Time to deny transactions: 11 to 20 days;
Transactions, Number: 37;
Transactions, Percent: 16;
Cumulative transactions, Number: 90;
Cumulative transactions, Percent: 38.
Time to deny transactions: 21 to 30 days;
Transactions, Number: 26;
Transactions, Percent: 11;
Cumulative transactions, Number: 116;
Cumulative transactions, Percent: 49.
Time to deny transactions: 31 to 40 days;
Transactions, Number: 26;
Transactions, Percent: 11;
Cumulative transactions, Number: 142;
Cumulative transactions, Percent: 60.
Time to deny transactions: 41 to 50 days;
Transactions, Number: 33;
Transactions, Percent: 14;
Cumulative transactions, Number: 175;
Cumulative transactions, Percent: 74.
Time to deny transactions: 51 to 60 days;
Transactions, Number: 17;
Transactions, Percent: 7;
Cumulative transactions, Number: 192;
Cumulative transactions, Percent: 82.
Time to deny transactions: 61 to 70 days;
Transactions, Number: 25;
Transactions, Percent: 11;
Cumulative transactions, Number: 217;
Cumulative transactions, Percent: 92.
Time to deny transactions: 71 to 80 days[A];
Transactions, Number: 18;
Transactions, Percent: 8;
Cumulative transactions, Number: 235;
Cumulative transactions, Percent: 100.
Time to deny transactions: Total;
Transactions, Number: 235;
Transactions, Percent: 101.
Cumulative transactions, Number: [Empty];
Cumulative transactions, Percent: [Empty].
Note: Percentages do not add to 100 due to rounding.
[A] Currently, NICS records of allowed firearms transfers are subject
to a 90-day retention period. However, in order to maintain 10 full
days of backup data without violating the 90-day retention period, NICS
purges all �proceed� data from the on-line system after 80 days.
Source: GAO analysis of FBI data.
[End of section]
As shown in table 1, the FBI reversed 7 (3 percent) of the 235
transactions from proceeds to denials in less than 1 calendar day.
Thus, firearm-retrieval actions related to these 7 transactions would
not have been affected if the proposed policy requiring next-day
destruction of records had been in place. However, a large majority�228
(97 percent) of the 235 transactions�would have been affected by such a
policy. More specifically, under the proposed next-day destruction
policy, records related to the 228 transactions would have been
destroyed before the FBI received the information that was used to
reverse the transactions to denials. As a result, according to NICS
officials, the FBI could not have initiated firearm-retrieval actions
related to these 228 transactions. [Footnote 15] NICS officials
provided the following examples:
* In September 2001, a man had his firearm purchase delayed while a
NICS examiner researched several criminal history charges, all of which
were found to be nondisqualifying misdemeanors. Finding no prohibiting
record, the examiner advised the gun dealer that the transaction could
proceed. The same individual attempted to purchase another firearm in
October 2001 and was again delayed. The NICS examiner researching the
second transaction found a protection order (a prohibiting record) in a
criminal history database that had been issued in January 2001 but had
not been posted to the database at the time the FBI allowed the first
firearm transfer to proceed. The examiner denied the second
transaction, and a firearm-retrieval action was initiated for the first
transaction.
* In November 2001, a woman whose criminal history record showed an
arrest for third-degree domestic battery had her firearm purchase
delayed while a NICS examiner researched the charge. The examiner
contacted a municipal court and a local police department to obtain
additional information, including the relationship of the parties
involved in the incident. The court responded that the woman was
convicted but that the charge was not domestic-violence related.
Because of this information, the examiner advised the gun dealer that
the transaction could proceed. Three days later, the examiner received
the police report on the incident, which showed that the assault was on
the woman�s husband. A firearm-retrieval action was initiated.
According to DOJ�s Office of Legal Policy, the problem of erroneous
firearms transfers stems from incomplete or inaccurate criminal history
records and will diminish as the states improve their criminal record
systems. The office noted that DOJ�s National Criminal History
Improvement Program will award $39 million to the states in fiscal year
2002 to improve their record systems, and, for fiscal year 2003, the
President�s budget requests $63 million for this purpose. The office
also noted that the Attorney General has directed the Bureau of Justice
Statistics to study and recommend ways to target these grants to improve
the accuracy of criminal history records, as well as records relating to
adjudicated mental incapacity and domestic violence.
While states are continuing to automate and otherwise improve the
completeness and accessibility of their criminal history records, this
process has been ongoing since the early 1990s and is still far from
complete. For example, during fiscal years 1995 through 2001, the
National Criminal History Improvement Program provided over $350
million in grant funds to assist states to improve the quality and
accessibility of their criminal history records. However, according to
a recent Bureau of Justice Statistics report, [Footnote 16] as of July
2001, a total of about 64 million records were held in state criminal
history repositories, of which an estimated 23 million (36 percent)
were not accessible to the FBI for NICS checks.
According to DOJ�s Office of Legal Policy, in the transition period
while the states perfect their record systems, DOJ will try to ensure
that firearms transferred erroneously can be properly retrieved. One
option under consideration�as part of the proposed policy for next-day
destruction of records�is to retain the firearms dealer�s
identification number for 90 days, as well as the NICS transaction
number and the date of the transaction, which are kept indefinitely.
Under this option, DOJ explained that (1) when a state agency or other
external source provides information showing that a proceed was given
in error, the FBI could use the NICS transaction number and date to
trace the transaction to the firearms dealer and refer the transaction
to ATF and (2) ATF could then use the dealer�s record, which provides
information on the purchaser, to retrieve the firearm.
Our work indicates, however, that DOJ�s proposed option may be only a
partial solution, because the FBI still may not have been able to
initiate firearm-retrieval actions for about one-half of the 228
retrieval actions discussed above. NICS officials explained that when a
state agency or other external source provides information showing that
a transfer should be denied, the FBI uses this information to determine
if the audit log contains prior records of allowed transfers for the
same individual that also should have been denied. If so, the FBI will
reverse the prior transactions to denials and initiate a retrieval
action if firearms were transferred. NICS officials told us that DOJ�s
proposal to temporarily retain (for 90 days) the firearms dealer�s
identification number generally would not allow the FBI to link the
prohibiting information from one transaction to a prior transaction
that also should have been denied. Rather, the individual�s name or
other personal identifying information needs to be retained in the
audit log to make such a link. To reiterate, FBI data show that�of the
228 firearm-retrieval actions initiated during the period July 3, 2001,
through January 2, 2002�about one-half were related to prior
transactions and were initiated using personal identifying information
retained under the current 90-day retention policy. The FBI generally
would not have been able to initiate these retrieval actions under
DOJ�s proposed option.
Next-Day Destruction of Records Would Have Affected Other Transactions:
In addition to the 228 transactions that resulted in firearm-retrieval
actions, a policy requiring next-day destruction of records would have
affected other NICS transactions in which firearms could have been
transferred but were not. More specifically, during the 6-month period,
FBI data show that the FBI reversed an additional 179 transactions from
proceeds to denials 1 or more days after the initial decision to allow
the transfers to proceed. Thus, firearms could have been transferred to
prohibited persons in each of these 179 transactions. However, using
records retained under the current 90-day retention policy, the FBI
contacted gun dealers and found that firearms were not transferred.
NICS officials speculated that the primary reason why transfers did not
occur was because the transactions may have been initially delayed and
the prospective purchasers did not return to buy the firearms.
The 228 transactions that resulted in firearm-retrieval actions�as well
as the 179 transactions that did not involve firearms transfers�were all
�regular proceed� transactions in which the FBI gave gun dealers
affirmative responses that the transfers could proceed. As mentioned
previously, each of these transactions would have been affected by the
proposed policy requiring next-day destruction of records. FBI
officials noted, however, that the vast majority of firearm-retrieval
actions initiated by the FBI would not be affected by such a policy.
[Footnote 17] The officials explained that retrieval actions generally
involve �default proceed� transactions. [Footnote 18] Such transactions
occur when the FBI cannot complete a NICS background check within 3
business days, after which gun dealers are legally allowed to transfer
firearms without an affirmative response from the FBI as to the
purchasers� eligibility. Under the proposed changes to the NICS
regulations, the FBI could retain data for up to 90 days on default
proceed transactions that have not been resolved with affirmative
proceed or denial responses. Thus, these transactions would not be
affected by a policy requiring next-day destruction of records.
Retained Records Were Used to Research Previous Transaction and Identify
Potential Firearm Retrievals:
In addition to the firearm-retrieval actions discussed above, the FBI
has developed procedures that use retained audit log records to identify
prohibited persons who may be in possession of firearms. For example,
under current procedures, when a NICS examiner receives a transaction to
research, the examiner is to search audit log records to determine if
research had previously been done on the individual through a prior
background check. If the examiner�s search finds that an individual has
multiple firearms transactions with different final statuses (e.g., both
proceeds and denials), the examiner is to review each transaction to
ensure that correct decisions were made. If the examiner determines that
an individual had been legally allowed to purchase a firearm in the past
but is currently prohibited from doing so, the examiner is to enter a
comment in the audit log record to alert ATF that the currently
prohibited person may be in possession of firearms from previous
transactions initiated within the 90-day retention period. ATF
officials told us that when ATF is notified of any past purchases by a
prohibited person, this information is referred to the appropriate ATF
field office for investigation.
The FBI does not maintain data on how often these procedures have
identified prohibited persons in possession of firearms, but FBI
officials told us that it does occur. The officials noted that next-day
destruction of records would lessen the effectiveness of these
procedures in identifying the need for firearm-retrieval actions.
Next-Day Destruction of Records Could Lengthen Time Needed to Complete
Background Checks:
As mentioned previously, when a NICS examiner receives a transaction to
research, the examiner is to search the audit log to determine if
research had previously been done on the individual through a prior
background check. If research had been done previously, the examiner
can use this information in making a determination as to whether the
firearm transaction should proceed or be denied. Under a next-day
destruction of records policy, NICS examiners would lose the ability to
reference previous audit log transactions for information that may
assist in resolving current transactions.
NICS officials explained that audit log records have a comment field
that includes the case history of all activity related to the respective
transaction. For example, the comment field may include clarifications
and verifications provided orally by outside law enforcement agencies,
as well as information related to charges (arrest records) that cannot
be formally posted to national criminal history databases.19 If the same
individual attempts to purchase another firearm within the current 90-
day retention period, the NICS examiner can access audit log records to
resolve the second transaction.
Without records of allowed transfers, NICS examiners may have to make
repeat calls to law enforcement agencies, including state and local
courts, for the same information. This rework could lengthen the amount
of time needed to complete NICS background checks and may result in
cases in which the FBI is unable to complete such checks within 3
business days, after which the firearm transfer is allowed to proceed
by default. Also, according to NICS officials, states may resist
performing this rework if they know they provided the same records in
the past, such as police reports and mental health information. The
officials noted, however, the same problem applies under the current 90-
day retention policy if, after 90 days, the same information is needed.
FBI officials told us that the audit log assists NICS examiners in
resolving current transactions many times each day, although the FBI
does not maintain data on the extent to which this occurs.
The impact of losing information from previous NICS transactions may be
partially mitigated by an FBI proposal to create a �voluntary appeals
file,� which would allow lawful purchasers to request that NICS retain
information to facilitate future NICS transactions. Under this proposal,
individuals who have experienced erroneous delays or denials by the
system will have the option of supplying the FBI with information�such
as name, date of birth, Social Security number, other identifying
numbers, and any documents�that may clarify their record. Such
documents may include a governor�s pardon, restoration of rights
document, or conviction dismissal. Individuals would have to agree to
have information posted to the voluntary appeals file.
FBI officials did not know the extent to which individuals would
actually volunteer information for the appeals file or whether
individuals would be reluctant to do so based, for example, on concerns
that such a file could be a registry of gun owners. However, based on
its analysis of appealed transactions, the FBI plans to add 17 new
staff members to maintain the voluntary appeals file.
Next-Day Destruction of Records Would Lessen the FBI�s Ability to
Respond to Inquiries:
Next-day destruction of records would lessen the FBI�s ability to
respond to gun dealer, purchaser, and congressional inquiries related
to the outcomes of background checks. According to NICS officials,
licensed gun dealers sometimes call NICS to obtain or confirm proceed
or denial decisions after the initial notifications. For example, a gun
dealer�s employee may have forgotten to record the NICS response on the
firearms transaction form (ATF form 4473) or may have noted the
response on a piece of paper that was inadvertently thrown away. NICS
officials told us that such calls primarily come from major retail
corporations that do a large volume of firearms sales, have a high
turnover of personnel, hire seasonal employees, or have people filling
in for gun department employees for short periods of time. The FBI does
not maintain data on the number of such inquiries received from gun
dealers, but NICS officials estimated that about three to five calls
are received each week. Generally, the FBI also would not be able to
respond to purchaser and congressional inquiries related to proceeded
transactions. NICS officials explained that such inquiries usually are
related to the NICS appeals process. For example, a purchaser may
contact NICS to determine why a proceeded transaction was initially
delayed. If the proposal for next-day destruction of records is
implemented, the FBI plans to respond to such inquiries with generic
letters, simply stating that no information is available.
Effect of a Next-Day Destruction Policy on ATF Inspections of Gun
Dealer Records is Unclear:
According to ATF headquarters officials, although ATF will need to
adjust procedures related to checking for abuses of NICS if a next-day
destruction policy is adopted, such a policy would not affect ATF�s
ability to inspect gun dealer records. However, our work indicates that
the effect of such a policy on ATF inspections is unclear.
Under current procedures, ATF inspectors are to use a worksheet to
record the total number of NICS background checks a firearms dealer�s
records show were conducted in the 3 months prior to the date of the
inspection, as well as the total number of responses (proceed, denied,
and delayed) provided by NICS during this time. [Footnote 20] Also, on
the worksheet, ATF inspectors are to record�for a sample of
transactions�the date the firearms dealer contacted NICS; the NICS
transaction number; the transferee�s name, sex, race, date of birth,
and state of residence; the type of transaction (e.g., transfer of a
handgun or long gun); and the final response provided by NICS. The
completed worksheet then is to be forwarded to FBI staff, who are to
compare the worksheet data to the NICS audit log. Discrepancies are to
be noted and returned to ATF.
According to ATF and FBI officials, discrepancies in personal
identifying information could indicate misuse of the system. For
example, discrepancies could indicate that a firearms dealer submitted
inaccurate or false information to NICS for the purpose of avoiding a
background check on the person to whom the gun was transferred. Also,
discrepancies could indicate that a firearms dealer used NICS for
unauthorized purposes, such as running checks on individuals not
intending to purchase firearms. Current NICS regulations note that it
is essential to retain information on approved firearms transfers
temporarily to allow for the possibility of discovering such abuses.
The regulations further state that, at a minimum, allowing for the
possibility of audits should have a deterrent effect on certain
firearms dealers who might otherwise consider abusing the system. The
ATF worksheet review procedure will no longer be used if the proposal
for next-day destruction of records is implemented.
According to ATF headquarters officials, no ATF field office has found
any NICS violations specifically involving the falsification of
purchaser names through the worksheet review procedure. Officials at
the five ATF field offices we contacted (Birmingham, Buffalo, San
Antonio, Detroit, and Fresno) also told us they had not detected any
misuse of NICS or identified other significant discrepancies through
the worksheet reviews. [Footnote 21] The officials noted that the vast
majority of discrepancies identified during reviews occur because of
clerical errors made by firearms dealers or ATF inspectors, such as
dealer errors in recording purchaser information onto firearms
transaction records or inspector errors in copying this information
onto worksheets. [Footnote 22] The officials provided mixed views on
the value of the worksheet reviews. Three of the five officials told us
that the reviews are useful for monitoring firearms dealers� use of
NICS and for deterring some firearms dealers from misusing the system.
According to these three officials, without NICS records of allowed
firearms transfers, (1) it would be more difficult to identify
potential misuse of the system and (2) much, if not all, of the
deterrent value of the worksheet reviews would be lost. Officials from
the other two field offices told us that the current worksheet reviews
do not yield useful information. The two officials also noted that the
reviews have little deterrent value because firearms dealers are not
aware that their records are being compared with NICS data. However,
ATF headquarters officials told us they believe firearms dealers are
aware of ATF�s procedures for conducting inspections of their records.
According to ATF headquarters officials, under the proposed next-day
destruction policy, the worksheet review procedure would be replaced by
a NICS �recheck� procedure, under which ATF inspectors would request
that the FBI rerun selected NICS checks based on information taken from
gun dealer records. The officials noted that such rechecks would allow
ATF to detect potential misuse of NICS and would serve as a deterrent.
At the time of our review, ATF was still in the process of developing
plans for requesting rechecks. Nonetheless, rerunning background checks
would not allow a detailed comparison of information in NICS records
with gun dealer records and, thus, may not be conducive to identifying
or deterring some types of potential system misuse, such as using NICS
for unauthorized purposes.
Also, the proposed revisions to the NICS regulations would allow the FBI
to extract information from NICS to create, upon prior written request
from ATF, individual firearms dealers audit logs that contain not more
than 30 days worth of transactions. The individual audit logs would
contain the NICS transaction number and the date of inquiry for allowed
transactions, and all information on denied or unresolved transactions.
ATF could then determine if a firearms dealer had requested more or
fewer background checks than its records indicated, which may reveal
possible misuse of the system. ATF also could determine if a dealer
sold a firearm to someone the NICS record showed should have been
denied.
Agency Comments:
On June 4, 2002, we provided a draft of this report for comment to DOJ
and the Department of the Treasury. In its written comments, DOJ
emphasized that the statutory authority for retaining records of
approved firearms transactions extends only to the limited purpose of
auditing the system to ensure its privacy, accuracy, and proper
performance. DOJ explained that although information obtained from the
audit log of approved transfers pursuant to a system audit may be used
incidentally for investigative or other functions, such secondary use
cannot replace auditing as the sole permissible purpose for accessing
information in the audit log of approved transfers. These comments are
consistent with the information that we are reporting.
DOJ also said that our primary concern regarding a possible inability to
retrieve a relatively small number of erroneously transferred firearms
was unfounded for two reasons. First, DOJ reiterated that it was
considering an option to retain the firearms dealer�s identification
number for 90 days. Second, DOJ noted that after the FBI has made a
referral for ATF to retrieve a firearm erroneously transferred to a
prohibited person, ATF has ample investigative avenues (beyond the
audit log) to determine whether the prohibited person has other
firearms that are illegally possessed. Thus, according to DOJ, contrary
to the conclusion of our report, all erroneously transferred firearms
could be retrieved.
We disagree. Our analysis indicates that DOJ�s option and ATF�s
investigative avenues are only partial solutions. As indicated
previously, FBI data show that�of the 228 firearm-retrieval actions
initiated during the period July 3, 2001, through January 2, 2002�about
one-half were initiated using the purchasers� personal identifying
information retained under the current 90-day retention policy. The FBI
generally would not have been able to initiate these retrieval actions
under DOJ�s proposed option of retaining the dealer�s identification
number but not retaining personal identifying information about the
respective purchaser.
Further, we recognize that ATF has various investigative avenues to
determine if a prohibited person is in possession of firearms. For
instance, in the course of an investigation, ATF can question the
individual and examine gun dealer records. However, in many cases,
absent an FBI referral, ATF would have no reason or basis for opening
an investigation. Further, expecting ATF agents to probe for illegally
possessed firearms would not be as effective as the FBI using
retainable records to notify ATF that firearms definitely have been
transferred to prohibited persons.
The full text of DOJ�s comments is reprinted in appendix III.
The Department of the Treasury and the FBI provided technical comments
and clarifications, which have been incorporated in this report where
appropriate.
As arranged with your office, unless you publicly announce this report�s
contents earlier, we plan no further distribution until 30 days after
the date of this report. We will then send copies to the relevant
congressional committees, the Attorney General, the FBI Director, and
the ATF Director. We will also make copies available to other
interested parties upon request. In addition, the report will be
available at no charge on the GAO Web site at [hyperlink,
http://www.gao.gov].
Please contact me at (202) 512-8777, or Danny Burton at (214) 777-5600,
if you or your staff have any questions. Other key contributors to this
report were Philip Caramia, Eric Erdman, Geoffrey Hamilton, Jan
Montgomery, and Linda Kay Willard.
Sincerely yours,
Signed by:
Laurie E. Ekstrand:
Director, Justice Issues:
[End of section]
Appendix I: Retention of National Instant Criminal Background Check
Records:
This appendix provides an overview of the history of retention periods
related to National Instant Criminal Background Check System (NICS)
records. The appendix also summarizes the current Department of Justice
(DOJ) notice of proposed rulemaking, which, among other things, would
require next-day destruction of NICS records related to allowed firearms
transfers.
History of NICS Records Retention Periods:
The Brady Handgun Violence Prevention Act (Brady Act) required the
Attorney General to establish a national instant criminal background
check system to be contacted by licensed firearms dealers for
information as to whether the transfer of a firearm would violate
federal or state law. [Footnote 23] In June 1998, DOJ published the
initial notice of proposed rulemaking that outlined policies and
procedures for implementing NICS. [Footnote 24] The proposed rule
provided that the Federal Bureau of Investigation (FBI) would
maintain information on allowed firearms transfers in NICS for 18
months, after which time the information would be destroyed. Based on
comments objecting to the proposed 18-month retention period, DOJ
reexamined the time period needed to perform audits of NICS.
As a result, the final NICS regulations [Footnote 25] (effective Nov.
30, 1998) provided that information on allowed firearms transfers may
be retained for no more than 6 months. [Footnote 26] According to the
final rule, in light of the statutory requirement that records of
allowed transfers be destroyed, and the countervailing statutory
requirement to provide for system privacy and security, the general
retention period for records of allowed transfers in the NICS audit log
should be the minimum reasonable period for performing audits on the
system, but in no event more than 6 months. The final rule also
provided that such records may be retained for a longer period if
necessary to pursue identified cases of misuse of the system. Further,
the rule noted that the FBI shall work toward reducing the retention
period to the shortest practicable period of time less than 6 months
that would allow for basic security audits of NICS.
On March 3, 1999, DOJ issued proposed changes to the NICS regulations
that would reduce the maximum retention period from 6 months to 90
days. [Footnote 27] In making this proposal, DOJ noted that there was
(1) no formula to determine with precision what retention period would
be the minimum necessary to allow adequate audits of NICS and (2) no
historical data regarding the use of NICS that could be analyzed
because NICS was a new system. According to the proposal, DOJ
recognized the need for a sufficient period of system activity to be
audited, as well as time to administer the audits. DOJ concluded that
90 days was the shortest practicable period of time for retaining
records of allowed transfers that would permit the performance of basic
security audits of NICS. DOJ cautioned, however, that the shorter the
retention period, the less likely it would be that random audits would
uncover or deter system misuse. This proposal also (1) clarified that
only the FBI has direct access to the NICS audit log and (2) authorized
the FBI to extract and provide information from the audit log to the
Bureau of Alcohol, Tobacco and Firearms (ATF) for use in inspections of
firearms dealers� records, under certain conditions. [Footnote 28]
In January 2001, DOJ published the final rule amending the NICS
regulations that reduced the maximum retention period for records of
allowed firearms transfer from 6 months to 90 days. [Footnote 29]
According to the final rule, many of the comments on the proposed rule
asserted that the Brady Act required immediate destruction of records
related to lawful transactions and that retention of this information
constituted an illegal firearms registry. DOJ noted that (1) the Brady
Act required the Attorney General to establish an adequate system of
oversight and review of NICS and (2) the FBI consequently proposed the
retention of records of approved transactions in an audit log for a
limited period of time to satisfy the Brady Act�s requirement of
ensuring the privacy and security of NICS and the proper operation of
the system. DOJ also noted that although the Brady Act mandates the
destruction of all personally identified information in NICS associated
with approved firearms transactions (other than the NICS transaction
number and the date the number was assigned), the statute does not
specify a period of time within which records of approvals must be
destroyed. Further, DOJ noted that the temporarily retained information
on approved firearms transfers is used only for purposes related to
discovering misuse or avoidance of the system and the proper operation
of the system. The final rule also provides that NICS will not be used
to establish any system for the registration of firearms, firearm
owners, or firearm transactions or dispositions, except with respect to
persons prohibited from receiving a firearm under federal or state law.
The final rule reducing the maximum retention period to 90 days was
originally scheduled to take effect on March 5, 2001. However, DOJ
postponed the effective date twice, and set a revised date of July 3,
2001. According to DOJ, these postponements were prompted by the
department�s need to conduct a review of the rule and record in light of
the department�s original commitment that it would �work toward
reducing the retention period to the shortest practicable period of time
less than six months that will allow basic security audits of the NICS.�
Based on this review, DOJ took two related steps. First, DOJ determined
that the final rule implementing the 90-day retention period would take
effect on July 3, 2001. Second, on July 6, 2001, DOJ published a new
notice of proposed rulemaking to propose further changes in the NICS
regulations, including a proposal for prompt destruction of records of
allowed transactions. These proposed changes are discussed later in this
appendix.
The temporary retention of NICS records has withstood a legal challenge.
Specifically, in November 1998, the National Rifle Association of
America, Inc., filed a suit against the U.S. Attorney General
challenging the temporary retention of audit log data. The association
argued that the Brady Act required immediate destruction of personal
information related to firearms transactions. DOJ asserted that
temporary retention of audit log data for at most 6 months was
necessary to audit NICS to ensure its accuracy and privacy. In January
1999, a U.S. district court dismissed the complaint, finding that
nothing in the Brady Act required immediate destruction and that the
Attorney General�s construction of the Brady Act was reasonable. In
July 2000, a U.S. court of appeals affirmed the district court�s
dismissal, finding that the Brady Act did not prohibit temporary
retention of information about lawful firearms transactions and that the
Attorney General had reasonably interpreted the Brady Act to permit the
retention of such information for audit purposes. [Footnote 30] In May
2001, the Supreme Court declined to hear the National Rifle
Association�s appeal
from the U.S. Court of Appeals for the District of Columbia.
DOJ�s Current Notice of Proposed Rulemaking:
On July 6, 2001, DOJ published a notice of proposed rulemaking
[Footnote 31] that contained five proposals to make additional changes
in the current NICS regulations. According to DOJ, the proposed changes
balance the legitimate privacy interests of law-abiding firearms
purchasers and the department�s obligation to enforce the Brady Act to
prevent prohibited persons from purchasing firearms. The five proposals
are summarized below, generally using language contained in the notice
of proposed rulemaking. At the time of our review, DOJ had not
published a final rule related to this notice.
Proposal Number 1: Prompt Destruction of Records of Allowed
Transactions:
According to the notice of proposed rulemaking, the first proposal would
amend current NICS regulations to provide for a general rule requiring
prompt destruction of information in the NICS audit log pertaining to
allowed transfers, coupled with specific statutory authority to retain
information in certain situations in order to ensure the security and
integrity of the system. This proposal also would revise and reorganize
existing provisions in current NICS regulations for greater clarity.
This proposal would require the destruction of all information in the
audit log relating to the lawful purchaser or the transfer (other than
the NICS transaction number and the date of inquiry) on all allowed
transactions prior to the start of the next business day following the
date on which the �proceed� message was received by the initiator of
the NICS check. [Footnote 31] However, when requested in writing by ATF
for inspection purposes, this proposal would authorize the FBI to
retain certain identifier information, such as the firearms dealer
identifier issued by ATF (see proposal number 2 below). Proposal number
1 makes no change in the existing provisions of the NICS rules
pertaining to the retention of records of transactions where the
transfer was denied because the putative purchaser is prohibited by
state or federal law from purchasing a firearm. There also is no change
in the existing provision authorizing the FBI to retain and use
information pertaining to allowed transfers as long as needed to pursue
cases of identified misuse of the system.
By keeping all records until the start of the next business day, the
NICS Operations Center would be able to compile statistics on the
operation of the system, such as the number of calls per state per day,
the percentage of checks run on long guns versus handguns, and other
statistical information that does not include personally identifiable
information on lawful purchasers. By destroying personally identifiable
information on allowed transfers before the start of the next business
day, the NICS Operations Center would have the hours between the close
of one business day and the start of the next business day to run
internal audits, amass statistical data, accomplish destruction of the
necessary records, and carry out other system maintenance with minimal
disturbance to the system.
Proposal Number 2: Individual Firearms Dealers Audit Logs:
Under federal law, firearms dealers are required, prior to transferring
a firearm to an unlicensed individual, to examine a valid identification
document of the potential purchaser, contact NICS, receive and record
from NICS a unique NICS transaction number, and either receive an
indication that the transaction may proceed or wait until 3 business
days have passed without receiving a determination from NICS that the
transfer is denied. [Footnote 33] In addition, federal law outlines
firearms dealers� record keeping requirements and the authority for ATF
to review dealer records. [Footnote 34] Specifically, federal law
provides for ATF inspection or examination, not more than once in any
12-month period, of the inventory and records of a licensed dealer to
ensure compliance with federal record keeping requirements.
This proposal would allow the FBI to extract information from NICS to
create, upon prior written request from ATF in connection with its
inspections of firearms dealers� records, individual firearms dealer
audit logs that contain not more than 30 days worth of allowed
transactions from an identified dealer. Such individual audit logs
would contain, with respect to allowed transfers, the NICS transaction
number and the date of inquiry. All information on denied transactions
or unresolved transactions will also be included in the individual
audit log. The proposal seeks to meet the law enforcement needs of ATF
and the FBI by providing to ATF, prior to an inspection of an
identified firearms dealer, information necessary to ensure that the
dealer is complying with federal requirements to conduct a NICS check
prior to transferring a firearm to an unlicensed person. Under this
proposal, ATF would be required to destroy all information on allowed
transfers within a set period of time (90 days) after the date of
creation of the individual firearms dealer audit log. NICS would also
be required to delete other identifier information, such as the firearms
dealer identifier, from the system within 90 days of the date of the
transaction.
Proposal Number 3: New Definition of �Unresolved� Transaction:
According to the notice of proposed rulemaking, this proposal would
provide a new definition in NICS regulations pertaining to �unresolved�
transactions, for two reasons. First, in those states in which NICS
performs background checks for firearms dealers, [Footnote 35] if the
NICS examiner cannot determine within 3 business days whether the
proposed firearm transfer would violate state or federal law, the
transaction is designated informally as a �default proceed.� Under
federal law, the firearms dealer is not prohibited from transferring
the firearm if NICS has not responded with a denial notification within
3 business days. [Footnote 36] Despite the fact that 3 business days
have elapsed, it is the practice of NICS examiners to continue research
on such transactions for 21 days to determine whether the transaction
is an actual �proceed� (allowed) or �denied.� Under proposal number 1
above, the system may be required to purge information concerning
�default proceeds� after 3 business days. DOJ does not intend this
result. NICS should retain information on transactions that have not
been definitively resolved after 3 business days.
This proposal would create a new internal classification system for
transactions that are �unresolved,� meaning the NICS examiner could not
verify that a �hit� in the database is or is not a disqualifier under
state or federal law. This classification will allow NICS to maintain
such unresolved transactions until either (1) a final determination on
the transaction is reached, resulting in the transaction being changed
to a �proceed� (prompt destruction) or a �denied� (permanent retention)
status, or (2) the expiration of the retention period for unresolved
transactions. DOJ proposes a retention period of no more than 90 days,
consistent with the retention period under the final rule that took
effect on July 3, 2001. In cases of unresolved transactions, the NICS
examiner would continue to respond to a firearms dealer in the same
manner as is current practice for �default proceeds.� This change does
not affect the manner or form in which response information is relayed
by the NICS examiner to the firearms dealer.
Second, in �point-of-contact� states, a state agency is responsible for
performing background checks for potential gun purchasers, including
contacting NICS as part of that background check. When a state agency
contacts NICS as part of a background check it initiates, NICS presently
records that transaction as an �implied proceed� unless and until the
state transmits to the system the ultimate determination for that
transaction (either �proceed� or �denied�). Once again, under a prompt
destruction alternative, these transactions records could be removed
from NICS before a final determination is made. In order to have the
most accurate record of denials in the system, this proposal would
classify all state-initiated transactions as �unresolved� until the
state transmits the final determination to NICS. In cases of �proceed�
or allowed transfers, NICS would be required to destroy such records
within the time frame discussed in proposal number 1 above. Again,
records of unresolved transactions would be deleted from the system
within 90 days. The new category of �unresolved� would not affect a
firearms dealer�s ability to transfer or not transfer a firearm after 3
business days but would allow NICS to keep accurate records of the
precise status of NICS transactions.
Proposal Number 4: Require Point-of-Contact States to Transmit State
Determinations to NICS:
According to the notice of proposed rulemaking, under current NICS
regulations, point-of-contact states are encouraged, but not required,
to provide NICS with the results of background checks indicating that a
firearm transfer is denied. Most point-of-contact states do not
transmit this information to NICS. This means that a potential
purchaser could be prohibited under state or federal law (based upon
information available to a state from records available to that state
only), yet NICS would not have access to that determination. If the
prohibited purchaser then traveled to another state and again attempted
to purchase a firearm, NICS would be unable to stop the prohibited
purchase. [Footnote 37]
This proposal would condition participation as a point-of-contact state
on transmission of state determination information to NICS as soon as
it is available, so that NICS will have accurate records of all
prohibited persons. Because state laws vary on how quickly the
background check must be completed, the proposed rule does not specify
a particular length of time for transmittal, but instead requires the
transmittal �upon communication of the determination to the firearms
dealer or the expiration of any applicable state waiting period.� Until
NICS receives the determination information, it will identify the
transaction as unresolved. Determination information from point-of-
contact states would still be subject to the rules governing record
retention. NICS may not retain information on allowed transfers that
originate in a point-of-contact state for a longer period of time than
it may keep information about a NICS-originated allowed transaction.
Proposal Number 5: Voluntary Appeals File:
According to the notice of proposed rulemaking, this proposal addresses
those situations in which a lawful firearms purchaser might desire to
have personal information retained in NICS to avoid confusion or delays
in future purchases. Because NICS must destroy all identifying
information on allowed transactions after not more than 90 days (or
before the start of the next business day under proposal number 1
above), if a potential purchaser is delayed or denied a firearm and
then successfully appeals the decision, NICS would not be able to
retain a record of the appeal and supporting documents. This means that
if a lawful purchaser has a similar name and date of birth as a
convicted felon, he or she may be delayed, or denied a purchase, until
NICS can determine that the lawful purchaser is not the felon. Often,
this is done through submission of fingerprints. However, under the
existing retention rules, once that purchase is determined to be
allowed, NICS cannot retain the information identifying the person as a
lawful purchaser for more than 90 days and must destroy all identifying
information relating to the person and the transfer�even if retention
is requested by the lawful purchaser. Both the NICS Operations Center
and individual purchasers have requested creation of a mechanism by
which NICS can keep, upon request of the purchaser, such clarifying
information in a separate computer file within NICS.
This proposal would allow the creation of a Voluntary Appeals File for
the purpose of allowing lawful purchasers to request that NICS retain
such information to facilitate future NICS transactions. Under this
proposal, potential firearms transferees experiencing erroneous delays
or denials by the system will have the option to supply the FBI with
information�such as name, date of birth, Social Security number, any
other identifying numbers, and any documents�that may clarify their
records or prove their identity. NICS would be required to destroy any
records submitted to the Voluntary Appeals File upon written request
from the individual. Such information could be retained and used by the
FBI as long as needed to pursue cases of identified misuse of the
system.
[End of section]
Appendix II: Objectives, Scope, and Methodology:
Objectives:
Senator Richard J. Durbin, Chairman, Subcommittee on Oversight of
Government Management, Restructuring, and the District of Columbia,
Senate Committee on Governmental Affairs, requested that we provide
information about how the Federal Bureau of Investigation�s (FBI)
National Instant Criminal Background Check System (NICS) would be
affected if records related to sales of firearms by licensed dealers
were destroyed within 24 hours after the transfers were allowed to
proceed. Under the Brady Handgun Violence Prevention Act, licensed
dealers generally are not to transfer firearms to an individual until a
NICS search determines that the transfer will not violate applicable
federal or state law. For instance, persons prohibited by federal law
from receiving a firearm include convicted felons, fugitives, unlawful
drug users, and aliens illegally or unlawfully in the United States.
However, if the background check is not completed within 3 business
days, the sale is allowed to proceed by default.
Under current NICS regulations, records of allowed firearms sales can be
retained for up to 90 days in a computer database (i.e., the NICS audit
log), after which the records must be destroyed. The audit log contains
information related to each background check requested by a licensed
firearms dealer, including the NICS response (e.g., proceed or denied)
and the history of all activity related to the transaction. According
to the NICS regulations, information on allowed firearms sales is used
only for purposes related to ensuring the proper operation of the
system or conducting audits of the use of the system. On July 6, 2001,
the Department of Justice (DOJ) published proposed changes to the NICS
regulations that would reduce the maximum retention period from 90 days
to less than 1 day for records of allowed firearms sales. [Footnote 38]
As agreed with the requester, we studied the effects that next-day
destruction of records would have on NICS operations and system audits.
Our work provides an overview of the extent to which the FBI�s planned
changes to NICS operations and routine system audits address the effects
of the proposed next-day destruction policy. Also, in more detail, our
work provides information on the effects such a policy would have on
(1) nonroutine system audits and related support to law enforcement
agencies; (2) specific aspects of NICS operations, including the FBI�s
ability to initiate firearm-retrieval actions, the time needed to
complete background checks, and the FBI�s ability to respond to
inquiries about completed checks; and (3) the ability of the Bureau of
Alcohol, Tobacco and Firearms (ATF) to inspect gun dealer records.
Scope and Methodology of our Work:
Generally, in performing our work, we met and had various telephone
discussions with officials from the FBI�s NICS Program Office and the
Criminal Justice Information Services Division in Clarksburg, West
Virginia. During our visit to the program office, we interviewed
applicable managers and reviewed relevant documents related to NICS
operations, system audits, and current uses of the audit log. Also, we
reviewed applicable federal regulations (e.g., NICS regulations and
related Privacy Act Notices), DOJ and FBI policies and procedures, and
DOJ�s current proposed changes to the NICS regulations. [Footnote 39]
Further, we interviewed officials from ATF headquarters and five field
offices, and we reviewed documentation they provided us. We relied on
testimonial and documentary evidence�such as agency statistics�provided
by FBI and ATF officials. We did not fully assess the reliability or
accuracy of the data provided to us. However, we did discuss the
sources of data with agency officials, and we worked with them to
resolve any inconsistencies. Our work focused on how the proposal for
next-day destruction of records would affect NICS background checks
conducted by the FBI�and not those conducted by a state agency.
[Footnote 40] States that conduct NICS checks generally have their own
retention laws that may not be affected by a federal next-day
destruction policy. However, such a policy would affect states that do
not have their own retention laws.
To obtain information on the extent to which the FBI�s planned changes
to NICS operations and routine system audits address the effects of the
proposed next-day destruction policy, we interviewed FBI officials and
reviewed relevant documents related to current NICS operations,
including NICS operating procedures, operations reports, and audit
reports. We also reviewed the FBI�s revised draft NICS concept of
operations document, which addresses operational changes needed to
support a next-day destruction policy. Further, we interviewed officials
from the NICS Program Office�s Internal Assessment Group and reviewed
relevant documents to determine (1) how the audit log is currently used
to support routine system audits, (2) the results of current system
audits, (3) how these audits would be affected by a next-day
destruction policy, and (4) the FBI�s proposed plan for conducting
routine audits under such a policy.
To obtain information on the effects the proposed next-day destruction
policy would have on nonroutine system audits and related support to law
enforcement agencies, we interviewed FBI officials and reviewed an
October 1, 2001, DOJ legal opinion on checking the names of prohibited
persons against NICS audit log records of allowed firearms transfers.
Regarding NICS operations, we studied the effects the proposed next-day
destruction policy would have on the FBI�s ability to initiate firearm-
retrieval actions, and the related public safety implications.
Specifically, we focused on (1) identifying the number of NICS
transactions that the FBI initially allowed to proceed but later
determined should have been denied, (2) determining how many of these
transactions resulted in the FBI initiating firearm retrieval actions,
and (3) determining how many of the retrieval actions could not have
been initiated under the proposed next-day destruction policy. Related
to these transactions, we obtained data on how the FBI became aware of
information that resulted in proceeded transactions being changed to
denials, as well as data on prohibiting offenses related to the
retrieval actions. We focused on retrieval actions that the FBI
initiated during the first 6 months of the current 90-day retention
policy�July 3, 2001, through January 2, 2002. We also reviewed FBI
procedures that are designed to identify prohibited persons who may be
in possession of firearms.
To obtain information on the effects a next-day destruction policy would
have on other aspects of NICS operations, we focused on current
operations that would be adversely affected (i.e., the time needed to
complete background checks and the FBI�s ability to respond to
inquiries), while obtaining more general information on capabilities
that would require operational changes but would not be adversely
affected. In addition to interviews with FBI officials, the primary
source of this information was the FBI�s draft NICS concept of
operations document. In some cases, we had to rely on FBI officials to
provide estimates and anecdotal information related to the effects of a
next-day destruction policy on NICS operations, because data on the
frequency and the specific outcomes of current operations that would be
adversely affected generally were not comprehensive or readily
available.
To obtain information on the effects of a next-day destruction policy on
the ability of ATF to inspect firearms dealers, we interviewed officials
from the NICS Program Office and ATF headquarters, reviewed current
inspection procedures, and obtained information on proposed changes to
the procedures. We also interviewed officials from 5 ATF field offices
to (1) determine if they had detected any misuse of NICS during their
inspections, (2) obtain their views on the usefulness of current
inspections, and (3) obtain their views on the effects of a next-day
destruction policy on ATF inspections. The 5 ATF field offices were
selected using a two-stage process. First, we identified the 5 ATF field
divisions�out of a total of 23 divisions�that conducted the highest
number of inspections of federal firearms dealers during fiscal year
2001 (Nashville, Boston, Houston, Detroit, and San Francisco). Within
each of these divisions, we selected the field office that conducted
the highest number of inspections during fiscal year 2001 (Birmingham,
Buffalo, San Antonio, Detroit, and Fresno).
It is important to note that the proposed revisions to the current NICS
regulations, as well as the FBI�s current plans for operating under a
next-day destruction policy, could change before the final regulations
are published. Such changes could affect the information contained in
this report.
[End of section]
Appendix III: Comments from the Department of Justice:
U.S. Department of Justice:
Office of Legal Policy:
Washington, DC 20530:
June 24, 2002:
Ms. Laurie Eckstrand:
Director of Justice Issues:
General Accounting Office:
441 G Street, N.W.
Washington, D.0 20548:
Re: GAO Review of the National Instant Criminal Background Check System
Audit Log:
Dear Ms. Eckstrand:
Thank you for the opportunity to review the final draft of the General
Accounting Office ("GAO") report entitled "Gun Control: Potential
Effects of Next-Day Destruction of NICS Background Check Records, GAO-
02-653." This letter constitutes the funnel comments of the Department
of Justice, and I request that it be included with that report.
The report makes a number of observations concerning the use of the
NICS Audit Lug of Approved Transfers for, among other purposes,
response to investigative or congressional requests for information. We
note that, under governing regulations "[i]nformation in the NICS Audit
Log pertaining to allowed transfers may be accessed only by the FBI for
the purpose of conducting audits of the use, and performance of the
NICS." 28 C.F.R. 25.9(b)(2). This regulation effectuates the twin
commands of the Brady Act that the FBI "destroy all records of the
system" relating to approved transactions, 18 U.S.C. 922(t)(2)(C) and
that the Attorney General "ensure the privacy and security" of the
system, 18 U.S.C. 922 (Statutory Note).
Accordingly, statutory authority for retaining records of approved
transactions extends only to the limited purpose of auditing the system
to ensure its prelacy, security, and proper performance. See, e.g., NRA
v. Ashcroft, 216 F.3d 122, 137-38 (2000) (noting that maintenance of
the Audit Log is limited "to the minimum reasonable period for
performing audits on the system"). Although information obtained from
the Audit Log of Approved Transfers pursuant to a system audit may be
used incidentally for investigative or other functions, such secondary
use cannot replace auditing as the sole permissible purpose for
accessing information in the Audit Log of Approved Transfers.
Although most of the issues raised in draft report were anticipated by
the Notice of Proposed Rulemaking, National Instant Criminal Background
Check System, 66 Fed. Reg 35567 (July 6, 2001), or will be addressed in
the final rule, I will discuss here the GAO's primary concern that,
under the proposed rule, the FBI would be unable to initiate firearms
retrievals in cases where a transaction had been erroneously approved.
In a small number of cases (240 out of 2.5 million checks, or .0096
percent), the state or local reporting agency will clear the NICS to
approve a transaction, only to notify the NICS more than 24 hours later
that its prior communication was in error.
As I wrote to you on May 14, 2002, this problem stems from incomplete
or inaccurate state criminal history records and will diminish as the
states improve their criminal record systems. To that end, the
Department's National Criminal History Improvement Program (NCHIP) has
awarded nearly $40 million in FY01 and will award $39 million in FY02
to the states to improve their record systems. For FY03, the
President's budget requests $63 million for this purpose. The Attorney
General has directed the Bureau of Justice Statistics to study and
recommend ways to target these grants to improve the accuracy of state
criminal history records, as well as records relating to adjudicated
mental incapacity and domestic violence.
Nevertheless, in the transitional period while the states perfect their
record systems, the Department seeks to ensure that firearms
transferred erroneously are properly retrieved. One option under
consideration is, for each transaction, to retain the Federal Firearms
Licensee number for 90 days as well as the NICS Transaction Number
("NTN") and date of the transaction, which are kept indefinitely. When
a state agency provides information showing that a proceed was given in
error, the FBI can use the NTN and date to trace the transaction to the
licensee and refer the transaction to the Bureau of Alcohol, Tobacco
and Firearms ("ATF") to initiate a firearm retrieval. The licensee is
required to retain ATF Form 4473, Firearms Transaction Record, which
provides information on the purchaser and transaction that ATF would
use to retrieve the firearm. This option, and others under
consideration, would both effectuate the Brady Act's requirement that
the FBI "destroy all records of the system" relating to personally
identifiable consumer information of approved transfers and facilitate
ATF follow-up to ensure effective enforcement of the Gun Control Act.
Your report acknowledges that this option, if adopted, would enable the
FBI to identify and, where appropriate, to refer erroneous transfers to
the ATF to initiate a firearm retrieval. However, your report asserts
that this option is only a partial solution because it would not allow
the FBI to "determine if the audit log contains prior records of
allowed transfers for the same individual that also should have been
denied." Draft Report at 11 (emphasis added). We note, however, that
once the FBI has referred for retrieval an erroneous firearm transfer
to a prohibited person, ATF is not limited in its investigation to that
particular transaction and has ample investigative avenues (beyond the
audit log) to determine whether the prohibited person has other
firearms which he illegally possesses. Keep in mind that the ATF not
only retrieves erroneously transferred firearms, but also enforces the
federal ban on possession of any firearms by prohibited persons. Thus,
contrary to the conclusion of your report, under the option described
above, the ATF would be able to undertake retrieval of all firearms
erroneously transferred to the prohibited person and, indeed, other
firearms that he illegally possesses.
The Department continues its efforts to finalize the rule and fulfill
its original commitment to "work toward reducing the retention period
to the shortest practicable period of time less than six months that
will allow basic security audits of the NICS," 63 Fed. Reg. 59304 (Oct
30. 1998). We appreciate the GAO's comments in this process and thank
the Congress for its support in our continuing efforts to improve the
NICS to effectuate fully the requirements of the Brady Act.
Sincerely,
Signed by:
Viet D. Dinh:
Assistant Attorney General:
[End of section]
Footnotes:
[1] We provided you preliminary information on this issue earlier this
year. See U.S. General Accounting Office, Preliminary Information on
Proposal for Next-Day Destruction of Records Generated by the National
Instant Criminal Background Check System, GAO-02-511R (Washington,
D.C.: Mar. 11, 2002).
[2] Brady Handgun Violence Prevention Act, Public Law 103-159, 107
Stat. 1536 (1993).
[3] 28 C.F.R. � 25.9(b)(1).
[4] 66 Fed. Reg. 35,567 (2001) (proposed July 6, 2001).
[5] Generally, the proposed changes to the NICS regulations would
require next-day destruction of records. More specifically, the
proposed changes would require that records related to allowed firearms
transfers be destroyed before the start of the next business day
following the date on which a �proceed� message allowing the transfer
was received by the licensed dealer that requested the NICS search.
According to an FBI official, the term �business day� should be
interpreted as the NICS operational day, which starts at 8:00 a.m. and
runs until 1:00 a.m. NICS operates every day of the year except
Thanksgiving and Christmas day.
[6] For this report, we define routine system audits as regularly
scheduled audits conducted by the NICS Program Office�s Internal
Assessment Group.
[7] Depending on the willingness of their state government to act as a
NICS liaison, firearms dealers contact either the FBI or a designated
state agency to initiate background checks on individuals purchasing
firearms.
[8] In an earlier report, we provided a detailed overview of NICS
operations. See U.S. General Accounting Office, Gun Control:
Implementation of the National Instant Criminal Background Check
System, GAO/GGD/AIMD-00-64 (Washington, D.C.: Feb. 29, 2000).
[9] The 235 firearm-retrieval actions involved transactions in which
the FBI initially gave gun dealers affirmative responses that the
transfers could proceed but subsequently changed to denials. As
discussed later in this report, the vast majority of all retrieval
actions initiated by the FBI�including those related to transactions
that are allowed to proceed by default�would not be affected by the
proposed next-day destruction policy.
[10] In general, the Internal Assessment Group uses the audit log to
obtain a list of transactions worked by each examiner, from which
samples are selected for a review of compliance with NICS policies and
procedures.
[11] The legal opinion was conveyed in a memorandum from DOJ�s Office
of Legal Counsel to DOJ�s Office of Legal Policy.
[12] Under federal law, persons are prohibited from receiving a firearm
if they (1) have been convicted of, or are under indictment for, a
felony; (2) are a fugitive from justice; (3) are unlawful drug users or
are addicted to a controlled substance; (4) have been involuntarily
committed to a mental institution or judged to be mentally defective;
(5) are aliens illegally or unlawfully in the United States, or certain
other aliens admitted under a nonimmigrant visa; (6) have been
dishonorably discharged from the military; (7) have renounced their
U.S. citizenship; (8) are under a domestic violence restraining order;
or (9) have been convicted of a misdemeanor crime of domestic violence.
See 18 U.S.C. � 922(g) and 922(n).
[13] FBI data show that the FBI processed a total of about 2.6 million
NICS transactions during this 6-month period.
[14] FBI data show that 43 (18 percent) of the 235 transactions that
resulted in firearm-retrieval actions involved NICS examiner errors
(e.g., failure to research a criminal history record). According to FBI
officials, additional examiner training will be provided and other
actions are planned to prevent such errors from occurring in the
future.
[15] FBI data show that 90 (39 percent) of the 228 firearm-retrieval
actions were initiated based on criminal history records showing felony
indictments or convictions, 58 (25 percent) of the retrieval actions
were related to domestic violence issues (misdemeanor convictions or
restraining orders), and 28 (12 percent) involved wanted persons. The
remaining 52 firearm-retrieval actions involved other prohibiting
categories.
[16] Department of Justice, Bureau of Justice Statistics, Improving
Criminal History Records for Background Checks, NCJ-192928 (Washington,
D.C.: Feb. 2002).
[17] FBI data show that, from November 30, 1998 (when NICS became
operational), through December 31, 2001, the FBI initiated a total of
approximately 13,000 firearm-retrieval actions.
[18] In an earlier report, we provided detailed information on NICS
default proceed transactions. See U.S. General Accounting Office, Gun
Control: Options for Improving the National Instant Criminal Background
Check System, GAO/GGD-00-56 (Washington, D.C.: Apr. 12, 2000).
[19] For example, arrest records not supported by fingerprints are
ineligible for posting to certain national criminal history databases.
[20] Licensed dealers are required to retain records of firearms
transactions for at least 20 years after the date of sale or transfer.
[21] Our methodology for selecting ATF field offices to contact is
presented in appendix II.
[22] According to ATF headquarters officials, another possible reason
for discrepancies identified during worksheet reviews is that FBI
examiners could incorrectly enter information from ATF worksheets into
their computer systems.
[23] The Brady Handgun Violence Prevention Act, Public Law 103-159, 107
Stat. 1536 (1993), amended the Gun Control Act of 1968, Public Law 90-
618, 82 Stat. 1213 (1968).
[24] 63 Fed. Reg. 30,430 (1998) (proposed June 4, 1998).
[25] 63 Fed. Reg. 58,303 (1998).
[26] NICS regulations are found at 28 C.F.R. Part 25.
[27] 64 Fed. Reg. 10,262 (1999) (proposed March 3, 1999).
[28] The FBI�s authority to provide ATF with audit log information went
into effect on July 3, 2001. However, in its July 6, 2001, notice of
proposed rulemaking, DOJ noted that, during the public comment period,
the FBI will not exercise its discretionary authority to provide this
information to ATF, except as specifically authorized by the Attorney
General.
[29] 66 Fed. Reg. 6,470 (2001).
[30] National Rifle Association of America, Inc. v. Reno, 216 F.3d 122,
(D.C. Cir. 2000), cert. denied 533 U.S. 928 (2001).
[31] 66 Fed. Reg. 35,567 (2001) (proposed July 6, 2001).
[32] According to an FBI official, the term �business day� should be
interpreted as the NICS operational day, which starts at 8:00 a.m. and
runs until 1:00 a.m.
[33] 18 U.S.C. 922(t).
[34] 18 U.S.C. 923(g)(1).
[35] Depending on the willingness of their state government to act as a
NICS liaison, firearms dealers contact either the FBI or a designated
state agency to initiate background checks on individuals purchasing
firearms. At the time of our review, the FBI conducted all background
checks in 25 states, the District of Columbia, and 4 U.S. territories,
while a state agency conducted all checks in 15 states. In the
remaining 10 states, both the FBI and a state agency conducted
background checks, depending on the type of firearm being purchased
(e.g., handgun or long gun).
[36] 18 U.S.C. 922(t)(1)(B)(ii).
[37] According to ATF officials, it is unlawful for a firearms dealer
to sell a handgun to an out-of-state resident. The officials noted that
a firearms dealer may sell a long gun to an out-of-state resident
provided the sale does not violate the state law in the purchaser�s
state or the dealer�s state.
[38] Generally, the proposed changes to the NICS regulations would
require next-day destruction of records. More specifically, the
proposed changes would require that records related to allowed firearms
transfers be destroyed before the start of the next business day
following the date on which a �proceed� message allowing the transfer
was received by the licensed dealer that requested the NICS search. The
NICS business day starts at 8:00 a.m. and runs until 1:00 a.m.
[39] DOJ�s current notice of proposed rulemaking related to NICS is
summarized in appendix I.
[40] Depending on the willingness of their state government to act as a
NICS liaison, firearms dealers contact either the FBI or a designated
state agency to initiate background checks on individuals purchasing
firearms. At the time of our review, the FBI conducted all background
checks in 25 states, the District of Columbia, and 4 U.S. territories,
while a state agency conducted all checks in 15 states. In the
remaining 10 states, both the FBI and a state agency conducted
background checks, depending on the type of firearm being purchased
(e.g., handgun or long gun).
[End of section]
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