August 30, 2007
RETENTION OF GUN PURCHASE RECORDS
By: Veronica Rose, Principal Analyst
You asked about federal and state records retention laws with respect to gun transfers and how they will affect PA 07-163, which requires owners to report lost or stolen guns.
The regulations governing the National Instant Criminal Background Check System (NICS) contain deadlines for destroying certain gun records within the NICS database. These regulations do not supersede state laws governing retention or destruction of gun records.
Under the federal Brady Act, gun dealers and other federal firearms licensees transferring any firearm to an unlicensed individual must request a NICS background check to determine if the transfer would violate state or federal law. The system informs licensees whether a transfer may proceed (allowed), may not proceed (denied), or is delayed pending further inquiry. The act's implementing regulations also allow officials issuing gun permits to request NICS checks on permit applicants.
The regulations address concerns about the potential misuse of the information forming the basis of the checks by (among other things) requiring any personally identifying information in the NICS database related to allowed firearm transfers to be destroyed within 24 hours after the FBI notifies the licensee that the transfer may proceed. The system retains non-personally identifying information on allowed transfers for up to 90 days and all information on denied transactions indefinitely. Neither the law nor regulations indicate how long the system may retain information pertaining to permit checks. In practice, the FBI, which manages the system, says it keeps these records for up to 90 days.
The regulations governing the retention schedules specifically exempt state gun records of NICS checks if the records are part of a system created and maintained pursuant to independent state law. And the regulations do not affect state gun records that are not the result of a NICS check.
Beginning October 1, 2007, Public Act No. 07-163 requires anyone whose lawfully possessed firearm (except an antique firearm) is lost or stolen to file a police report within 72 hours after he or she discovered or should have discovered the loss or theft. It imposes penalties ranging from an infraction to a class C felony for failing to report within the deadline. The act does not set record retention limits. But under state document retention guidelines, the State Police currently retains most gun records permanently.
THE BRADY LAW AND NICS
The permanent provisions of the Brady Handgun Violence Prevention Act required the U.S. attorney general to establish NICS to immediately notify federal firearm licensees if their transfer of a firearm to an unlicensed person would violate state or federal law (18 USC § 922(t)). The act's implementing regulations also allow state, local, and federal criminal justice agencies to request NICS checks on people seeking to obtain permits or licenses to possess, acquire, or carry firearms (28 CFR § 25.6(j)).
Under federal and state requirements, prospective firearms purchasers must provide certain information to the licensees to initiate a NICS background check. Federal regulations require that gun buyers complete ATF Form 4473; Connecticut law requires them to complete DPS-67-C and DPS-3-C. For example, prospective purchasers must provide the following descriptive data on the ATF form: name, residence address, place of birth, height and weight, gender, date of birth, race, state of residence, country of citizenship, and alien registration number (for non-U.S. citizens). Licensees use the ATF Form to record information about the firearms transaction, including the type of firearm to be transferred; the NICS response (e.g., allowed or denied); and information on the firearm to be transferred (e.g., manufacturer, serial number, and model). Gun permit applicants are required to provide personal descriptive data on a state permit application (DPS-46 for initial applicants and DPS-129-C for renewal applicants, in Connecticut's case).
Licensees initiate NICS checks by submitting completed forms to either the NICS center or a state point of contact (POC) agency (the State Police, in the case of Connecticut) and requesting a background check on the subject of the application. The checking agency searches the records and notifies the licensee that the transfer is (1) allowed (if no disqualifying information was found in the database); (2) denied (if any information in the database demonstrates that the transfer would violate federal or state law; or (3) delayed (pending more research to determine if the transferee is disqualified from possessing firearms under state or federal law). If the licensee does not receive a response within three business days, he or she may transfer the firearm at his discretion (if state law allows).
Destruction of Records on Allowed Transfers and Permit Checks
The regulations require any personally identifying information in the NICS database related to allowed transfers to be destroyed within 24 hours after a licensee receives notice that the gun transfer may proceed. The system may retain all other information (except the NICS transaction and date) on allowed transfers for up to 90 days from the date of the inquiry (28 CFR § 25.9(b)(1)(iii)). The regulations are silent on the issue of information in the database relating to permit checks. But a 2005 Government Accountability Office (GAO) report notes that according to the FBI's NICS section, the 24-hour destruction requirement for personally identifying information “does not apply to permit checks. Rather, information related to permit checks is maintained in the NICS database for up to 90 days after the background check is initiated” (Gun Control and Terrorism, GAO-05-127, p. 32).
Also, according to the GAO report, NICS internally classifies a transaction as open if staff cannot make a final determination (i.e., allowed or denied) on a transaction within three business days. The system maintains personally identifying information and other details related to open transactions until either (1) a final determination is made or (2) the retention period for open transactions expires, no more than 90 days (id. at p. 32).
Destruction of NICS Records on Denied Gun Transactions
The regulations require that personally identifying information and other details related to denied firearms transactions be retained indefinitely. According to the regulations:
The NICS will retain NICS Index records that indicate that receipt of a firearm by the individuals to whom the records pertain would violate Federal or state law. The NICS will retain such records indefinitely, unless they are canceled by the originating agency. In cases where a firearms disability is not permanent, e.g., a disqualifying restraining order, the NICS will automatically purge the pertinent record when it is not longer disqualifying. . . (28 CFR § 25.9(a)).
NICS Document Destruction Schedule and State Records
Under NICS regulations, state POC records of NICS checks are not subject to the federal 24-hour destruction requirement if the records are part of a system created and maintained pursuant to independent state law on firearm transactions (28 CFR § 25.9(d)(1) and (2)).
Additionally, the regulations do not apply to state gun records that are not created as the result of a NICS check.
STATE RECORD RETENTION SCHEDULES
Under Connecticut law, the state librarian is authorized and responsible for administering a public records program, including establishing a record retention schedule, for state executive branch agencies. The librarian implements the program through the Office of the Public Records Administrator (CGS §§ 11-8 and 11-8a). The public records administrator establishes the retention schedule for documents by appraising records and determining their value.
When evaluating a document's worth or value for retention, the administrator considers five primary values: administrative (origin, development, activities, and accomplishments); legal (evidence of legally enforceable state rights or obligations); fiscal (financial transactions); historical; and research (scholarly studies and investigations). The administrator also considers requirements that determine the need for retention. These include legal and fiscal or audit requirements.
Under the current retention schedule, the State Police maintains the following gun records permanently:
1. DPS -0003-C (sale or transfer of firearm form CGS §§ 29-33 and 29-37),
2. DPS-799C (eligibility certificate to obtain firearm (CGS § 29-36g), and
3. DPS-46 (state gun permit application (CGS § 29-28a)).