Brady Act Implementation Issues ( 1996 )

Brady Act Implementation Issues
T he A ttorney G eneral m ay im pose an expiration date on the validity o f a check, conducted pursuant
to the B rady A ct by the national instant crim inal background check system , that authorizes the
transfer o f a firearm .
Inform ation from the national instant crim inal background check system m ay be disclosed to law
enforcem ent agencies to further their crim inal investigations, b ut disclosures m ay n ot be m ade
fo r th e purpose o f establishing firearm s registries and non-consensual disclosures m ay n ot be m ade
for em ploym ent and licensing purposes.
T he P rivacy Act p laces no restrictions on the A ttorney G en eral’s express authority under the B rady
A ct to request inform ation from federal agencies identifying individuals w ho fall w ithin the cat­
eg o ries o f persons prohibited from possessing firearm s.
February 13, 1996
M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
F e d e r a l B u r e a u o f In v e s t ig a t io n
This memorandum responds to your request for our advice concerning imple­
mentation of the Brady Handgun Violence Prevention Act, Pub. L. No. 103-159,
107 Stat. 1536 (1993) (“ Brady Act” ). Specifically, you have asked three questions
relating to the national instant criminal background check system (“ NICS” ) man­
dated by the Brady Act:
(I) May the Attorney General impose an expiration date on a NICS
check that allows the transfer of a firearm?
(II) May NICS be used for purposes other than conducting back­
ground checks on prospective firearms purchasers?
(III) May the Attorney General request from federal agencies all
information identifying individuals who fall within the categories
of persons prohibited from possessing firearms?
We address each of these questions below.
You have also asked us to review a memorandum prepared by the Office of
Policy Development (“ OPD” ) that concludes that the Brady Act does not preempt
states from imposing additional restrictions providing for waiting periods on the
sale of firearms. We agree with the conclusion reached by OPD.
I. The Attorney General May Impose An Expiration Date on a NICS Check
Section 103 of the Brady Act provides for the establishment of NICS by the
Attorney General. The system must be operational by the start of 1999. Firearms
dealers will then be required to refer the proposed firearm transfer to that system
to determine whether any legal impediment exists to the sale. 18 U.S.C. §922(t)(l)
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(1994). You have advised us that upon completion of the NICS check, the system
would notify the firearm dealer of the results of the check by an indication that
the transfer would be legal or not. You have asked whether the Attorney General
has the authority to impose an expiration date on the validity of a NICS check
that allows for the transfer of a firearm. As discussed below, we conclude that
the Attorney General may impose an expiration date on a NICS check.
Section 103(b) of the Brady Act states that “ the Attorney General shall establish
a national instant criminal background check system that any licensee may contact
. . . to be supplied immediately, on whether receipt of a firearm by a prospective
transferee would violate section 922 of title 18, United States Code, or State law.”
107 Stat. at 1541. Section 103(d) provides that “ [o]n establishment of the system
under this section, the Attorney General shall notify each licensee and the chief
law enforcement officer of each State of the existence and purpose of the system
and the means to be used to contact the system.” Id. at 1541-42. Section 103(e)(2)
authorizes the Attorney General to develop the computer software and design as
necessary to “ establish and operate the system in accordance with this section.”
Id. at 1542.
Although the Brady Act does not specifically provide for an expiration date
for a NICS check that authorizes a firearm transfer, we believe that in carrying
out her responsibilities under the Act, the Attorney General has the authority to
impose, in effect, a “ useful life” limitation on the validity of the check. Such
an exercise of authority would be supported by the Act’s legislative history.
The Supreme Court has acknowledged the legitimacy of the executive branch’s
completing the work of Congress, notwithstanding the lack of a specific direction
by the legislative branch to do so. “ The power of an administrative agency to
administer a congressionally created and funded program necessarily requires the
formulation of policy and the making of rules to fill any gap left, implicitly or
explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974). More re­
cently, the Court stated: “ As we emphasized in [Chevron, U.S.A., Inc. v. Natural
Resources D efense Council, 467 U.S. 837 (1984)], when an agency is charged
with administering a statute, part of the authority it receives is the power to give
reasonable content to the statute’s textual ambiguities.” Departm ent o f Treasury,
Internal Revenue Serv. v. Federal Labor Relations Authority, 494 U.S. 922, 933
(1990).
A decision by the Attorney General to impose an expiration date on a NICS
check would be supported by the Brady Act’s legislative history. The purpose
of the Brady Act is to prevent convicted felons and other persons who are barred
by law from purchasing guns from gun dealers. See H.R. Rep. No. 103-344, at
7 (1993). This purpose is served by the Attorney General establishing a national
instant criminal background check system that is “ capable of instant response
to inquiries and use by licensed gun dealers . . . at the point of firearm purchase.”
Id. at 8. NICS will enable firearms dealers to determine “ whether a proposed
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Brady Act Implementation Issues
transfer would be a prohibited one.” Id. at 11. NICS “ guarantees immediate deliv­
ery of a handgun to a proven law-abiding citizen.” Id. at 33 (dissenting views).
These congressional statements reveal an intent that the NICS check be con­
ducted close to the time of the proposed sale and that the Attorney General estab­
lish a system that will operate in that fashion. The purpose of the Brady Act,
which is to prohibit the sale of firearms to certain individuals, is served by a
system that requires a check to occur in close proximity to a firearm sale. If a
NICS check could be requested at any time prior to a sale and the results of
that check were to remain valid for an indefinite period of time, a purchaser could
obtain a NICS check, wait to purchase the firearm, and then engage in conduct
that would otherwise bar the purchase of the firearm. Imposing an expiration date
on the NICS results would better ensure that firearm transfers are made to law-
abiding citizens because the dealers would not be able to rely on stale information
in transferring the weapon.
We now turn to your suggestion that the Attorney General impose an expiration
date of thirty days following each NICS check. We believe that although a thirty
day period might be reasonable, a forty-five or sixty day period might be more
reasonable. Imposing a longer period of time would better afford an opportunity
to those individuals who were unable to return to the firearms dealer because
of health or other legitimate personal reasons.
n . NICS May Be Accessed fo r Other Law Enforcement Purposes
In establishing NICS, section 103 of the Brady Act directs the Attorney General
to gather state criminal history records to include with the federal criminal records
system and to obtain information on persons for whom receipt of a firearm would
violate 18 U.S.C. § 922(g) or (n) or state law. You have advised us that the system
will include, inter alia, records on dishonorable dischargees from Defense Depart­
ment files, on drug users and mental defectives/commitments from Veterans Af­
fairs Department and Defense Department files, and on drug users from the pilot
license files of the Federal Aviation Administration. You have asked whether in­
formation from NICS may be disclosed to law enforcement agencies to further
their investigations and to other agencies for employment and licensing purposes
unrelated to firearm purchases. As discussed below, we believe NICS may be
accessed by, or information therefrom may be disclosed to, law enforcement agen­
cies. Disclosures for purposes of establishing firearms registries, however, are pro­
hibited. Also, non-consensual disclosures for employment and licensing purposes
are not authorized.
Under 28 U.S.C. §534 (1994), the Attorney General has the authority to dis­
seminate NICS information to authorized federal, state, and local officials for their
official use. The disclosure, however, must satisfy the requirements of the Privacy
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Act. Section 105 of the Brady Act states that the Act “ shall not be construed
to alter or impair any right or remedy” under the Privacy Act. 107 Stat. at 1543.
The Privacy Act provides, in relevant part, that:
No agency shall disclose any record which is contained in a sys­
tem of records . . . to any person, or to another agency, except
pursuant to a written request by, or with the prior written consent
of, the individual to whom the record pertains, unless disclosure
of the record would be—
(1) to those officers and employees of the agency which maintains
the record who have a need for the record in the performance of
their duties;
(3) for a routine use . . .;
(7) to another agency . . . for a civil or criminal law enforcement
activity if the activity is authorized by law, and if the head of the
agency or instrumentality has made a written request to the agency
which maintains the record specifying the particular portion desired
and the law enforcement activity for which the record is sought.
5 U.S.C. § 552a(b) (1994).
The Privacy Act defines a “ system of records” as a group of records under
the control of an agency “ from which information is retrieved by the name of
the individual or by some identifying number.” 5 U.S.C. §552a(a)(5) (1994).
Based upon your description, it is clear that NICS constitutes a “ system of
records” as that term is defined in the Privacy Act. Accordingly, only disclosures
falling within an exception under the Act are permissible.
Section 552a(b)(l) provides a “ need to know” exception and authorizes the
intra-agency disclosure of information for necessary, official purposes. Under this
exception, components of the Department of Justice needing to know the informa­
tion in the performance of their official duties will be able to access NICS for
that purpose.
Section 552a(b)(3) permits the disclosures pursuant to “ routine use notices”
published in the Federal Register. A “ routine use” is defined as the use of infor­
mation “ for a purpose which is compatible with the purpose for which it was
collected.” 5 U.S.C. §552a(a)(7). The purpose for which the information in NICS
will be collected is a law enforcement purpose. As discussed earlier, the system
will be used to prevent convicted felons and other ineligible persons from pur­
chasing guns. We believe that disclosure of NICS information to law enforcement
agencies to further their criminal investigations should be held to be compatible
with the law enforcement purpose for which the information was collected.
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Brady Act Implementation Issues
Even if a “ routine use” were not promulgated under §552a(b)(3), law enforce­
ment agencies would be able to access NICS or obtain NICS information pursuant
to § 552a(b)(7), if the requests were submitted in writing and signed by the head
of the agencies or authorized designees.
There are no exceptions in the Privacy Act that would permit the non-consensual
disclosures of NICS information for non-law enforcement purposes. Accordingly,
consent from the individual would be required to access NICS for purposes of
employment and licensing inquiries. *
Section 103(i) of the Brady Act does not change our analysis or conclusion
relating to NICS disclosures. Section 103(i) reads:
PROHIBITION RELATING TO ESTABLISHMENT OF REG­
ISTRATION SYSTEMS WITH RESPECT TO FIREARMS.—No
department, agency, officer, or employee of the United States
may—
(1) require that any record or portion thereof generated by the
system established under this section be recorded at or transferred
to a facility owned, managed, or controlled by the United States
or any State or political subdivision thereof; or
(2) use the system established under this section to establish any
system for the registration of firearms, firearm owners, or firearm
transaction or dispositions, except with respect to persons, prohib­
ited by section 922 (g) or (n) of title 18, United States Code or
State law, from receiving a firearm.
107 Stat. at 1542. The clear intent of Congress in adopting this provision was
to prohibit the establishment of a firearm registry. The title of the provision, the
relation between subparagraphs (1) and (2), and the legislative history support
our conclusion.
“ Titles have a communicative function. . . . Since the title of an act is essen­
tially a part of the act and is itself a legislative expression of the general scope
of the bill, it is proper to consider it in arriving at the intent of the legislature.”
2A Norman J. Singer, Sutherland on Statutes and Statutory Construction § 47.03
(5th ed. 1992) (“ Sutherland” ). Here, the title explicitly limits the scope of the
provision to the prohibition of the establishment of a firearm registry.
Likewise, the interrelation between subparagraphs (1) and (2) confirm our view
that the provision is intended to prohibit the use of NICS in establishing a firearm
registry. Section 103(i)(l) is a specific prohibition of a particular method in estab­
lishing a registry. Section 103(i)(2) establishes a general prohibition against using
the system to establish a registry. Drafting a statute that includes a specific provi-
•E d ito r’s Note: The Department o f Justice published a Privacy Act System Notice for the NICS on 11/25/98
that exempts the NICS from the record access provisions o f the Privacy Act, 63 Fed. Reg. 65,060 (1998). Privacy
Act requests for non-exempt records must comply with the alternative procedure set forth in the notice.
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sion followed by a general one can be explained as a common “ technique de­
signed to save the legislature from spelling out in advance every contingency in
which the statute could apply.” 2A Sutherland at §47.17.
Finally, the legislative history supports the conclusion we have reached based
on the text of the statute. The report of the House Committee on the Judiciary
explained that section 103(i) “ prohibits any Federal department, agency, officer,
or employee from using the system or any part thereof to establish a registry
of firearms, firearms owners, or firearms transactions” except with respect to per­
sons falling within the ambit of 18 U.S.C. § 922(g) or (n). H.R. Rep. No. 103-
344, at 20 (1993). The report thus confirms that the sole purpose of section 103(i)
was to prohibit the use of NICS information for the purpose of establishing firearm
registries.
HI. The Attorney General May Request Information From Federal Agencies
The Brady Act directs that the Attorney General gather the necessary informa­
tion in establishing NICS. Section 103(e)(1) states:
AUTHORITY TO OBTAIN OFFICIAL INFORMATION.—
Notwithstanding any other law, the Attorney General may secure
directly from any department or agency of the United States such
information on persons for whom receipt of a firearm would violate
subsection (g) or (n) of section 922 of title 18, United States Code
or State law, as is necessary to enable the system to operate in
accordance with this section. On request of the Attorney General,
the head of such department or agency shall furnish such informa­
tion to the system.
107 Stat. at 1542.
Section 105 states that the Brady Act “ shall not be construed to alter or impair
any right or remedy” under the Privacy Act. 107 Stat. at 1543. You have asked
whether the Privacy Act places any limitation on the Attorney General’s express
authority in section 103(e)(1) to request from federal agencies all information
identifying individuals who fall within the categories of persons prohibited from
possessing firearms. We do not believe that it does.
The plain meaning of the phrase “ notwithstanding any other law,” in section
103(e)(1) convinces us that Congress did not intend for the Privacy Act or any
other law to prohibit the Attorney General from gathering the critical information
necessary to create a registry of individuals prohibited from owning a firearm.
NICS serves the Brady Act’s fundamental purpose of identifying those individuals
who are not permitted by law to own a firearm. Limiting the Attorney General
in identifying those individuals would be contrary to the purpose of the Act. In
our view, the effect of the “ notwithstanding any other law” language in section
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103(e)(1) is that the Privacy Act does not apply to disclosures by agencies to
the Attorney General for the purpose of putting information into NICS. The effect
of section 105 is that the Privacy Act regulates disclosures out o f NICS.
RICHARD L. SHIFFRIN
D eputy Assistant Attorney General
Office o f Legal Counsel
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