oversight

Gun Control: Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks

Published by the Government Accountability Office on 2012-07-16.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

             United States Government Accountability Office

GAO          Report to Congressional Requesters




July 2012
             GUN CONTROL

             Sharing Promising
             Practices and
             Assessing Incentives
             Could Better Position
             Justice to Assist
             States in Providing
             Records for
             Background Checks




GAO-12-684
                                           July 2012

                                           GUN CONTROL
                                           Sharing Promising Practices and Assessing
                                           Incentives Could Better Position Justice to Assist
                                           States in Providing Records for Background Checks
Highlights of GAO-12-684, a report to
congressional requesters




Why GAO Did This Study                     What GAO Found
The 2007 Virginia Tech shootings           From 2004 to 2011, the total number of mental health records that states made
raised questions about how the             available to the National Instant Criminal Background Check System (NICS)
gunman was able to obtain firearms         increased by approximately 800 percent—from about 126,000 to 1.2 million
given his history of mental illness. In    records—although a variety of challenges limited states’ ability to share such
the wake of this tragedy, the NICS         records. This increase largely reflects the efforts of 12 states. However, almost
Improvement Amendments Act of 2007         half of all states increased the number of mental health records they made
was enacted to, among other things,        available by fewer than 100 over this same time period. Technological, legal, and
provide incentives for states to make      other challenges limited the states’ ability to share mental health records. To help
more records available for use during
                                           address these challenges, the Department of Justice (DOJ) provides assistance
firearm-related background checks.
                                           to states, such as grants and training, which the 6 states GAO reviewed reported
GAO was asked to assess the extent
to which (1) states have made
                                           as helpful. DOJ has begun to have states share their promising practices at
progress in making mental health           conferences, but has not distributed such practices nationally. By disseminating
records available for use during NICS      practices that states used to overcome barriers to sharing mental health records,
checks and related challenges, (2)         DOJ could further assist states efforts.
states have made progress in making
unlawful drug records available and        The states’ overall progress in making unlawful drug use records available to
related challenges, (3) DOJ is             NICS is generally unknown because of how these records are maintained. The
administering provisions in the act to     vast majority of records made available are criminal records—such as those
reward and penalize states based on        containing arrests or convictions for possession of a controlled substance—which
the amount of records they provide,        cannot readily be disaggregated from other records in the databases checked by
and (4) states are providing a means       NICS. Most states are not providing noncriminal records, such as those related to
for individuals with a precluding mental   positive drug test results for persons on probation. On May 1, 2012, DOJ data
health adjudication or commitment to       showed that 30 states were not making any noncriminal records available. Four
seek relief from the associated federal    of the 6 states GAO reviewed raised concerns about providing records outside
firearms prohibition. GAO reviewed         an official court decision. Two states also noted that they did not have centralized
laws and regulations, analyzed Federal     databases that would be needed to collect these records. DOJ has issued
Bureau of Investigation data from 2004     guidance for providing noncriminal records to NICS.
to 2011 on mental health and unlawful
drug use records, interviewed officials
                                           DOJ has not administered the reward and penalty provisions of the NICS
from a nongeneralizable sample of 6
states (selected because they provided     Improvement Amendments Act of 2007 because of limitations in state estimates
varying numbers of records) to obtain      of the number of records they possess that could be made available to NICS.
insights on challenges, and interviewed    DOJ officials were unsure if the estimates, as currently collected, could reach the
officials from all 16 states that had      level of precision needed to serve as the basis for implementing the provisions.
legislation as of May 2012 that allows     The 6 states GAO reviewed had mixed views on the extent to which the reward
individuals to seek relief from their      and penalty provisions—if implemented as currently structured—would provide
federal firearms prohibition.              incentives for them to make more records available. DOJ had not obtained the
                                           states’ views. Until DOJ establishes a basis for administering these provisions—
What GAO Recommends                        which could include revising its current methodology for collecting estimates or
GAO recommends that DOJ share              developing a new basis—and determining the extent to which the current
promising practices in making mental       provisions provide incentives to states, the department cannot provide the
health records available and assess        incentives to states that were envisioned by the act.
the effectiveness of rewards and
penalties and how to best implement        Nineteen states have received federal certification of their programs that allow
them. DOJ agreed with the results.         individuals with a precluding mental health adjudication or commitment to seek
                                           relief from the associated firearms prohibition. Having such a program is required
View GAO-12-684. For more information,
contact Carol Cha at (202) 512-4456 or     to receive grants under the 2007 NICS act. Officials from 10 of the 16 states we
chac@gao.gov.                              contacted said that grant eligibility was a strong incentive for developing the
                                           program. Reductions in grant funding could affect incentives moving forward.
                                                                                    United States Government Accountability Office
Contents


Letter                                                                                    1
               Background                                                                 4
               Most States Have Made Limited Progress in Providing Mental
                 Health Records and Could Benefit from DOJ Sharing Promising
                 Practices                                                                9
               States Generally Are Not Sharing Unlawful Drug Use Records That
                 Are Not Associated with an Arrest or Conviction                         20
               DOJ Has Not Administered Reward and Penalty Provisions; Sample
                 States Had Mixed Views on whether Provisions Provided an
                 Incentive                                                               24
               Nineteen States Have Programs to Relieve Federal Firearms
                 Prohibitions for People with Precluding Mental Health
                 Adjudications or Commitments                                            29
               Conclusions                                                               34
               Recommendations for Executive Action                                      35
               Agency Comments                                                           36

Appendix I     Objectives, Scope, and Methodology                                        39



Appendix II    State Options for Conducting Background Checks using the National
               Instant Criminal Background Check System                                  43



Appendix III   Minimum Criteria for Certification of Qualifying State Relief from
               Disabilities Programs                                                     46



Appendix IV    Federal and State Efforts to Ensure the Accuracy and Timeliness of
               Records Used by the National Instant Criminal Background Check
               System                                                                    49



Appendix V     Comments from the Department of Justice                                   52




               Page i                             GAO-12-684 NICS Improvement Amendments Act
Appendix VI   GAO Contacts and Staff Acknowledgments                                   55



Tables
              Table 1: Relief from Disabilities Applications Received, Approved,
                       and Denied, as Reported from September 2011 to May 2012         30
              Table 2: States with Federal Relief Programs and NARIP Grant
                       Awards by State, Fiscal Year 2009 to Fiscal Year 2011           32


Figures
              Figure 1: Total Number of State Mental Health Records Made
                       Available to the NICS Index, October 2004 to October
                       2011                                                            10
              Figure 2: Point of Contact States as of October 2011                     44




              Page ii                           GAO-12-684 NICS Improvement Amendments Act
Abbreviations

ATF               Bureau of Alcohol, Tobacco, Firearms and Explosives
BJS               Bureau of Justice Statistics
CJIS              Criminal Justice Information Services
DOJ               Department of Justice
FBI               Federal Bureau of Investigation
HHS               Department of Health and Human Services
HIPAA             Health Insurance Portability and Accountability Act
III               Interstate Identification Index
JAG               Edward Byrne Memorial Justice Assistance Grants
                  Program
NARIP             NICS Act Record Improvement Program
NCHIP             National Criminal History Improvement Program
NCIC              National Crime Information Center
NIAA              NICS Improvement Amendments Act of 2007
NICS              National Instant Criminal Background Check System
POC               point of contact
R.E.A.C.H.        Report, Educate, and Associate Criminal Histories
SEARCH            National Consortium for Justice Information and Statistics


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Page iii                                   GAO-12-684 NICS Improvement Amendments Act
United States Government Accountability Office
Washington, DC 20548




                                   July 16, 2012

                                   Congressional Requesters

                                   The April 2007 Virginia Tech shootings raised questions about how the
                                   gunman in this incident was able to obtain firearms despite a national
                                   background check process and his history of mental illness. Under the
                                   Brady Handgun Violence Prevention Act 1 and implementing regulations,
                                   the Federal Bureau of Investigation (FBI) and designated state and local
                                   criminal justice agencies use the FBI’s National Instant Criminal
                                   Background Check System (NICS) to conduct background checks on
                                   individuals seeking to purchase firearms from federally licensed firearm
                                   dealers or obtain permits to possess, acquire, or carry firearms. Persons
                                   are prohibited from possessing firearms under federal law if they, among
                                   other things, have been convicted of a felony, have been involuntarily
                                   committed to a mental institution, or are unlawful users of or addicted to
                                   any controlled substance. Most of the records in the databases checked
                                   by NICS originate with states, which are not required to submit records to
                                   NICS, but do so voluntarily for public safety and other law enforcement
                                   purposes. In previous reports, we noted that states had made progress in
                                   automating records and making them nationally available for law
                                   enforcement purposes, but that continued progress would involve a
                                   partnering of federal, state, and local resources and long-term
                                   commitments from all governmental levels. 2

                                   In the wake of the Virginia Tech tragedy, the NICS Improvement
                                   Amendments Act of 2007 (NIAA) was enacted into law to, among other
                                   things, help states make more records available for use during NICS
                                   background checks. 3 For example, the act provides for certain financial
                                   incentives, such as rewards and penalties, based on the percentage of
                                   records each individual state makes available. The act also requires the
                                   Department of Justice (DOJ) to make NICS Act Record Improvement


                                   1
                                    Pub. L. No. 103-159, 107 Stat. 1536 (1993).
                                   2
                                    See, for example, GAO, National Criminal History Improvement Program: Federal Grants
                                   Have Contributed to Progress, GAO-04-364 (Washington, D.C.: Feb 27, 2004), and
                                   Bureau of Justice Statistics Funding to States to Improve Criminal Records,
                                   GAO-08-898R, (Washington, D.C.: July 8, 2008).
                                   3
                                    Pub. L. No.110-180, 121 Stat. 2559 (2008).




                                   Page 1                                   GAO-12-684 NICS Improvement Amendments Act
Program (NARIP) grants available to states to improve their ability to
provide records. To be eligible for a grant, a state must (1) provide DOJ
with a reasonable estimate of the number of NICS-related records it
possesses and (2) establish a program that allows individuals who have
been prohibited from possessing firearms due to a mental health-related
adjudication or commitment to seek relief from the associated federal
firearms prohibition.

In this context, you requested that we assess the progress DOJ and
states have made in implementing key provisions of the NIAA.
Accordingly, this report addresses the extent to which

•   states have made progress in making mental health records available
    for use during NICS background checks and DOJ could take actions
    to help states overcome any challenges in providing these records, 4
•   states have made progress in making unlawful drug use records
    available for use during NICS background checks, and DOJ could
    take actions to help states overcome any challenges in providing
    these records,
•   DOJ has administered the reward and penalty provisions provided for
    in the act and whether selected states report that these provisions
    provide incentives to make records available to the FBI, and
•   states have established programs that allow individuals who have a
    precluding mental health adjudication or commitment to seek relief
    from the associated federal firearm prohibition.

To determine state progress in making mental health and unlawful drug
use records available, we analyzed FBI data from fiscal years 2004
through 2011—about 4 years before and after the enactment of NIAA—
on the number of such records that states made available. To assess the
reliability of these data, we questioned knowledgeable officials about the
data and the systems that produced the data, reviewed relevant
documentation, examined data for obvious errors, and (when possible)
corroborated the data among the different agencies. We determined that


4
 When states submit mental health records to the NICS Index, they provide descriptive
information about the prohibited individual (such as the individual’s name and date of
birth), along with a code to identify which federal prohibitor applies. States do not share an
individual’s actual treatment records or other health care records, nor do they provide
specifics related to the individual’s prohibiting mental health condition. Use of the term
“mental health records” in this report should be understood to mean the identifying
information on prohibited persons supplied by states to the NICS Index.




Page 2                                      GAO-12-684 NICS Improvement Amendments Act
the data were sufficiently reliable for the purposes of this report. To
assess the extent to which DOJ is providing assistance to help states
overcome challenges in making records available, we reviewed guidance
DOJ provided to states and attended a DOJ-hosted regional NIAA
conference. Additionally, we analyzed all NARIP grant applications from
2009 to 2011 submitted by states, territories, and tribal entities to identify
challenges that 28 unique applicants reported facing in making records
available and the amount of funding these applicants believed was
necessary to overcome their challenges. Further, we interviewed officials
from a nonprobability sample of 6 states (Idaho, Minnesota, New Mexico,
New York, Texas, and Washington) to discuss challenges they faced in
sharing mental health and unlawful drug use records. We selected these
states to represent a range of factors, including the number of mental
health records and unlawful drug use records made available for NICS
checks and whether the state received a NARIP grant. We also
interviewed officials from various DOJ components with responsibility for
managing and maintaining NICS records, including the Bureau of Justice
Statistics (BJS), the FBI’s Criminal Justice Information Services (CJIS)
Division and NICS Section, and the Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF).

To determine the extent to which DOJ has administered the reward and
penalty provisions of the act and whether these provisions provide
incentives for states to share records, we assessed state record
estimates for 2009, 2010, and 2011 and two reports from the National
Center for State Courts that evaluated these estimates. 5 We reviewed the
scope, methodology, and findings of the reports and conducted related
interviews with center officials. We determined that the scope and
methodology were sufficient for us to rely on the results. We also
interviewed officials from our 6 selected states on the process they used
for completing the estimates and related challenges, and the effect of the
act’s reward and penalty provisions on record sharing. Further, we
interviewed officials with the National Center for State Courts and the
National Consortium for Justice Information and Statistics (SEARCH) who
were responsible for collecting state record estimates and evaluating their




5
 The National Center for State Courts is an independent, nonprofit court improvement
organization that conducts research, information services, education, and consulting.




Page 3                                    GAO-12-684 NICS Improvement Amendments Act
             reasonableness. 6 From these interviews, we learned more about the
             reasonableness of the estimates, changes to the estimate methodology
             over time, and next steps for the estimates.

             To determine the extent to which states are providing a means for
             individuals with a precluding mental health adjudication or commitment to
             seek relief from the associated federal firearms prohibition, we
             interviewed officials in each of the 16 states that had a federally certified
             relief program as of May 2012 to identify why they developed a program
             and related challenges, the extent of federal assistance received, and
             data on the number of relief applicants to date. 7 We also interviewed
             officials from the 6 sample states and DOJ components to learn about
             states’ motivation to establish relief programs, challenges to doing so,
             and DOJ resources available to help states. Additionally, we interviewed
             groups with an interest in, among other things, relief from disability
             programs and firearm background checks, including Mayors Against
             Illegal Guns, the National Rifle Association, and Gun Owners of America.
             Appendix I contains a more detailed discussion of our objectives, scope,
             and methodology.

             We conducted this performance audit from August 2011 to July 2012 in
             accordance with generally accepted government auditing standards.
             Those standards require that we plan and perform the audit to obtain
             sufficient, appropriate evidence to provide a reasonable basis for our
             findings and conclusions based on our audit objectives. We believe that
             the evidence obtained provides a reasonable basis for our findings and
             conclusions based on our audit objectives.


             The permanent provisions of the Brady Handgun Violence Prevention Act
Background   (Brady Act) took effect on November 30, 1998. Under the Brady Act,
             before a federally licensed firearms dealer can transfer a firearm to an
             unlicensed individual, the dealer must request a background check
             through NICS to determine whether the prospective firearm transfer


             6
              SEARCH’s primary objective is to identify and help solve the information management
             and information-sharing challenges of state, local, and tribal justice and public safety
             agencies confronted with the need to exchange information with other local agencies,
             state agencies, agencies in other states, or the federal government.
             7
              In June 2012, 3 additional states received certification of their relief from disabilities
             programs. We did not interview officials in these states.




             Page 4                                        GAO-12-684 NICS Improvement Amendments Act
would violate federal or state law. 8 The Brady Act’s implementing
regulations also provide for conducting NICS checks on individuals
seeking to obtain permits to possess, acquire, or carry firearms. Under
federal law, there are 10 categories of individuals who are prohibited from
receiving or possessing a firearm. 9 During a NICS check, descriptive data
provided by an individual, such as name and date of birth, are to be used
to search three national databases containing criminal history and other
relevant records to determine whether or not the person is disqualified by
law from receiving or possessing firearms.

•   Interstate Identification Index (III)—Managed by the FBI, III is a
    system for the interstate exchange of criminal history records. III
    records include information on persons who are indicted for, or have
    been convicted of, a crime punishable by imprisonment for a term
    exceeding 1 year or have been convicted of a misdemeanor crime of
    domestic violence.
•   National Crime Information Center (NCIC)—An automated, nationally
    accessible database of criminal justice and justice-related records,
    which contains, among other things, information on wanted persons
    (fugitives) and persons subject to restraining orders.
•   NICS Index—Maintained by the FBI, this database was created for
    presale background checks of firearms purchasers and contains
    information on persons predetermined to be prohibited from
    possessing or receiving a firearm.

According to DOJ, approximately 16 million background checks were run
through NICS during 2011, of which about half were processed by the
FBI’s NICS Section and half by designated state and local criminal justice
agencies. States may choose among three options for performing NICS
checks, which include the state conducting all of its own background


8
 Pursuant to ATF regulations, a Federal Firearms License is a license that enables an
individual to engage in commerce in firearms, including dealing in firearms, manufacturing
ammunition and firearms, and importing firearms.
9
 Under federal law, persons are prohibited from possessing or receiving a firearm if they
(1) have been convicted of a felony; (2) are a fugitive from justice; (3) are an unlawful user
of or addicted to any 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 qualifying domestic violence restraining order; (9) have been convicted of
a misdemeanor crime of domestic violence. In addition, federal law prohibits persons
under felony indictment from receiving a firearm. See 18 U.S.C. § 922(g) and § 922(n).




Page 5                                       GAO-12-684 NICS Improvement Amendments Act
checks, the state and DOJ sharing responsibility for background checks,
or DOJ conducting all background checks for a state. See appendix II for
further discussion of these differences.

The Gun Control Act of 1968, 10 as amended, and ATF regulations 11
establish the definitions of the mental health and unlawful drug use
prohibiting categories and, therefore, the scope of relevant records to be
made available to the FBI by states and territories. As defined in ATF
regulations, mental health records that would preclude an individual from
possessing or receiving a firearm include (1) persons who have been
adjudicated as “a mental defective,” including a finding of insanity by a
court in a criminal case, incompetent to stand trial, or not guilty by reason
of insanity, 12 and (2) individuals involuntarily committed to a mental
institution by a lawful authority. 13 The prohibitor—that is, the condition or
factor that prohibits an individual from possessing or receiving firearms—
does not cover persons in a mental institution for observation or a
voluntary admission to a mental institution. Mental health records are
found within two databases checked during a NICS background check,
the III, and the NICS Index.

Federal law prohibits individuals who are unlawful users of or addicted to
any controlled substance from possessing or receiving a firearm. ATF
regulations define an unlawful user of or addicted to any controlled
substance as a person who uses a controlled substance and has lost the
power of self-control with reference to the use of the controlled substance
and any person who is a current user of a controlled substance in a



10
  Pub. L. No. 90-618, 82 Stat. 1213 (1968).
11
  27 C.F.R. § 478.11.
12
  ATF regulations at 27 C.F.R. § 478.11 defines “adjudicated as a mental defective” as a
determination by a court, board, commission, or other lawful authority that a person, as a
result of marked subnormal intelligence, or mental illness, incompetency, condition, or
disease: (1) is a danger to himself or others; or (2) lacks the mental capacity to contract or
manage his own affairs. The terms shall include—(1) a finding of insanity by a court in a
criminal case; and (2) those persons found incompetent to stand trial or found not guilty by
reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform
Code of Military Justice, 10 U.S.C. 850a, 876b.
13
  ATF regulations at 27 C.F.R. § 478.11 define the term “committed to a mental institution”
as a formal commitment of a person to a mental institution by a court, board, commission,
or other lawful authority. The term includes commitments for other reasons, such as for
drug use.




Page 6                                      GAO-12-684 NICS Improvement Amendments Act
manner other than as prescribed by a licensed physician. In general,
under these regulations, use of such substances is not limited to the
precise time the person seeks to acquire or receives a firearm; instead,
inference of current use may be drawn from evidence of recent use or
pattern of use through convictions, multiple arrests, and failed drug tests,
among other situations. ATF regulations further provide examples upon
which an inference of current use may be drawn, including a conviction
for use or possession of a controlled substance within the past year or
multiple arrests related to controlled substances within the past 5 years if
the most recent arrest occurred within the past year. 14 Unlawful drug use
records associated with a criminal arrest or conviction are generally found
in the III and those that are not associated with an arrest or conviction are
entered into the NICS Index. FBI officials reported that states submit the
vast majority of their unlawful drug use records to the III.

Since state submission of records to NICS is voluntary, the NIAA strives
to increase the availability of state records through a series of financial
incentives. To reward states for submitting records, the NIAA provides
that beginning in January 2011, a state shall be eligible to receive a
waiver of the 10 percent matching requirement for DOJ’s National
Criminal History Improvement Program (NCHIP) grants if the state
provides at least 90 percent of its records relevant to the determination of
whether a person is disqualified from possessing or receiving a firearm. 15
NIAA penalty provisions provide that during the period January 8, 2011,
to January 8, 2013, the U.S. Attorney General may withhold up to 3
percent of the amount that would otherwise be allocated to a state under
DOJ Edward Byrne Memorial Justice Assistance (JAG) Program formula


14
  More specifically, the ATF regulations provide that “such use is not limited to the use of
drugs on a particular day, or within a matter of days or weeks before, but rather that the
unlawful use has occurred recently enough to indicate that the individual is actively
engaged in such conduct. A person may be an unlawful current user of a controlled
substance even though the substance is not being used at the precise time the person
seeks to acquire a firearm or receives or possesses a firearm.” This definition additionally
provides that “an inference of current use may be drawn from evidence of a recent use or
possession of a controlled substance or a pattern of use or possession that reasonably
covers the present time, e.g., a conviction for use or possession of a controlled substance
within the past year; multiple arrests for such offenses within the past 5 years if the most
recent arrest occurred within the past year; or persons found through a drug test to use a
controlled substance unlawfully, provided that the test was administered within the past
year.” 27 C.F.R. § 478.11
15
  The NIAA provides that such disqualification determinations are those made under
subsection (g) or (n) of section 922 of title 18, United States Code, or applicable state law.




Page 7                                      GAO-12-684 NICS Improvement Amendments Act
grants if the state provides less than 50 percent of the records requested
under the NIAA. 16 This discretionary penalty may be increased to 4
percent through 2018 and to a mandatory 5 percent penalty thereafter if a
state provides less than 90 percent of records requested under the act. 17

Additionally, the NIAA establishes the NARIP grant program to assist
states in providing records to NICS. In order to be eligible for such grants,
states must meet two conditions. First, states are to provide DOJ with
estimates, pursuant to a methodology provided by the Attorney General,
of their numbers of potentially NICS-applicable records. Second, states
must establish a program that allows individuals who have been
prohibited from possessing firearms due to a mental health adjudication
or commitment to seek relief from the associated federal firearms
prohibition (disability). The NIAA refers to such programs as “relief from
disabilities” programs. ATF is responsible for determining whether a
state’s relief program satisfies the conditions of the NIAA and has
developed minimum criteria for certifying a state’s program. For example,
the program has to be established by state statute—or administrative
regulation or order pursuant to state law—and include due process
requirements that allow persons seeking relief the opportunity to submit
evidence to the lawful authority considering the relief application. 18




16
  The goal of the NCHIP grant program is to enhance the quality, completeness, and
accessibility of criminal history record information and includes direct financial and
technical assistance to states to improve their criminal records systems that support
background checks. Justice Assistance Grants are used broadly for, among other things,
information sharing, law enforcement, and crime victim and witness programs and can
fund criminal justice records improvement and automated fingerprint identification
systems.
17
  The NIAA additionally provides that the Attorney General may waive the application of
the mandatory penalty if the state provides substantial evidence, as determined by the
Attorney General, that the state is making a reasonable effort to comply with specified
records submission provisions of the NIAA.
18
 See appendix III for a copy of ATF’s minimum criteria document.




Page 8                                    GAO-12-684 NICS Improvement Amendments Act
                              States increased the number of mental health records available for use
Most States Have              during NICS background checks from 200,000 in October 2004 to 1.2
Made Limited                  million in October 2011, but this progress largely reflects the efforts of 12
                              states, and most states have made little or no progress in providing these
Progress in Providing         records. 19 DOJ and state officials identified technological, legal, and other
Mental Health                 challenges that hinder states’ ability to make these records available.
Records and Could             DOJ has made several forms of assistance available to help states
                              provide records—including grants, conferences, and training—and the 6
Benefit from DOJ              states we met with generally reported finding these helpful. DOJ has
Sharing Promising             begun to have states share their promising practices during regional
                              meetings, but DOJ has not shared these practices nationally.
Practices
Mental Health Records         The total number of mental health records that states made available to
Have Increased since NIAA     the NICS Index increased by approximately 800 percent—from about
Enactment, but Progress       126,000 records in October 2004 to about 1.2 million records in October
                              2011—according to FBI data. 20 As shown in figure 1, there was a marked
Largely Reflects Efforts of
                              increase in the number of mental health records made available by states
12 States                     since 2008, when the NIAA was enacted. This increase largely reflects
                              the efforts of 12 states that had each made at least 10,000 mental health
                              records available by October 2011.




                              19
                               Unless otherwise noted, “states” will refer to all 50 states and the District of Columbia.
                              20
                                According to NICS Section officials, the vast majority of mental health records that
                              states make available are contained in the NICS Index. The officials noted that states
                              submit a small number of mental health records—such as those involving a finding by a
                              court of not guilty by reason of insanity—to other databases but that these records cannot
                              be readily identified.




                              Page 9                                     GAO-12-684 NICS Improvement Amendments Act
Figure 1: Total Number of State Mental Health Records Made Available to the NICS
Index, October 2004 to October 2011




Note: Data are as of October 1 each year.


From October 2004 to October 2011, 3 states increased the number of
mental health records they made available by over 150,000 each. On the
other hand, during this same time period, almost half of the states
increased the number of mental health records they made available by
less than 100 records. As of October 2011, 17 states and all five U.S.
territories had made fewer than 10 mental health records available to the
NICS Index. 21

Factors other than the NIAA could have also contributed to the increase
in mental health records made available to NICS, including state efforts
already under way before the act, changes in state funding or leadership,
and increases in the number of individuals with mental health records that


21
  See appendix IV for steps DOJ and states have taken to ensure the accuracy and
timeliness of state mental health records made available for use during NICS background
checks.




Page 10                                     GAO-12-684 NICS Improvement Amendments Act
                             would preclude them from receiving or possessing a firearm. In addition,
                             in August 2008, the FBI’s NICS Section requested that states move
                             certain records they had previously submitted to a “denied persons”
                             category in the NICS Index to more specific categories of prohibitors,
                             including the mental health category. According to NICS Section officials,
                             the majority of records in the mental health category were new records
                             submitted by states and not transferred from the denied persons
                             category.

                             The increase in available mental health records could be a factor in the
                             increasing number of firearm transactions that have been denied based
                             on these records. According to FBI data, the number of firearm
                             transactions that were denied based on mental health records increased
                             from 365 (or 0.5 percent of 75,990 total gun purchase denials) in 2004 to
                             2,124 (or 1.7 percent of 123,432 total gun purchase denials) in 2011. 22
                             According to NICS Section officials, the vast majority of these denials
                             were based on mental health records in the NICS Index, but that a small
                             number could have been based on prohibiting information contained in
                             other databases checked by NICS (e.g., criminal history records in the III
                             noting a court finding of incompetence to stand trial).


DOJ and States Reported
That Technological, Legal,
and Coordination
Challenges Hindered
States’ Ability to Make
Mental Health Records
Available

Technological Challenges     DOJ and state officials we met with identified technological challenges to
                             making mental health records available to NICS, such as updating aging
                             computer systems and integrating existing record systems. DOJ officials
                             noted that technological challenges are particularly salient for mental
                             health records because these records originate from numerous sources
                             within the state—such as courts, private hospitals, and state offices of


                             22
                               According to NICS Section officials, the number of denials based on mental health
                             records may be underreported, since some states conduct their own NICS checks and
                             have not always reported the reason for denials to the FBI.




                             Page 11                                  GAO-12-684 NICS Improvement Amendments Act
                   mental health—and are not typically captured by any single state agency.
                   For example, records that involve involuntary commitments to a mental
                   institution typically originate in entities located throughout a state and
                   outside the scope of law enforcement, and therefore a state may lack
                   processes to automatically make these records available to the FBI.

                   In addition, 6 of the 16 states that applied for NARIP grant funding in
                   2011 cited technology barriers as a reason for requesting funding in their
                   grant applications. For example, Virginia received a NARIP grant to,
                   among other things, equip district courts with an automated means to
                   transmit mental health records to the FBI and replace its previous manual
                   and labor-intensive process. Five of the 6 states we reviewed also noted
                   that technological challenges impaired their ability to identify, collect, and
                   provide mental health records to NICS. Minnesota officials said that it is
                   difficult to share historical records involving involuntary commitments to a
                   mental institution since they are paper records that cannot be
                   automatically transmitted. The 1 state in our sample that did not cite
                   technology as a challenge, Texas, already had an automated system in
                   place that to facilitate the transmission of mental health records. DOJ
                   officials were aware that states faced technological barriers to making
                   mental health records available and cited that NARIP grants help states
                   address these challenges. Additionally, BJS has made improving the
                   submission of mental health records, including efforts to automate the
                   reporting of such information, a funding priority of the NARIP grant
                   program for 2011 and 2012.

Legal Challenges   Addressing state privacy laws is a legal challenge that some states
                   reported facing in making mental health records available to NICS.
                   Specifically, officials from 3 of the 6 states we reviewed said that the
                   absence of explicit state-level statutory authority to share mental health
                   records was an impediment to making such records available to NICS.
                   For example, Idaho officials reported deferring to the protection of
                   individual privacy until clear state statutory authority was established to
                   allow state agencies to make mental health records available. Idaho
                   enacted a law in 2010 requiring, among other things, that the state’s
                   Bureau of Criminal Identification obtain and transmit information relating
                   to eligibility to receive or possess a firearm to NICS, and the state was
                   preparing to submit its first set of mental health records to the NICS Index




                   Page 12                              GAO-12-684 NICS Improvement Amendments Act
in the first quarter of 2012. 23 Overall, 20 states have been identified by the
FBI as having enacted statutes that require or permit agencies to share
their mental health records, and some of these states in our sample
reported an increase in record availability as a result. For example, Texas
enacted a law in 2009 requiring court clerks to prepare and forward
certain types of mental health records to the state record repository within
30 days of specified court determinations. 24 Following the passage of the
law, Texas officials said that the number of mental health records
provided to NICS increased by about 190,000 records.

States that have not enacted laws requiring state agencies to share their
mental health records could also face challenges to reporting such
information based on the applicability of the federal Health Insurance
Portability and Accountability Act (HIPAA) Privacy Rule to their particular
circumstances. 25 The HIPAA Privacy Rule establishes certain
requirements for the treatment of protected health information and applies
to “covered entities” including health care providers like hospitals and
could also cover certain types of state agencies (e.g., departments of
mental health). According to Department of Health and Human Services
(HHS) officials, the Privacy Rule strikes a balance between permitting
important uses and disclosures of individuals’ health information and
protecting the privacy of patients who seek care by requiring covered
entities to, among other things, use or disclose protected health
information only as permitted by the rule. The Privacy Rule allows
covered entities to disclose protected health information without written
authorization of the individual under certain specified circumstances, such
as where the disclosure is required by law. 26 Within this context, officials
from 3 of the 6 states in our sample reported that the absence of explicit
state statutory authority to share mental health records was an


23
  Idaho Code § 67-3003(1)(i). The 2010 statute also requires Idaho state courts finding a
defendant incompetent to stand trial to (1) make a finding as to whether the defendant is
prohibited under federal law (18 U.S.C. 922(d)(4) and (g)(4)) from receiving or possessing
a firearm, and (2) if such a finding is made, forward a copy of the order to the Idaho state
police to, in turn, forward for inclusion in NICS.
24
 Texas Government Code § 411.052.
25
 45 C.F.R. Part 164.
26
  The Privacy Rule defines the term “required by law” to include, among other things,
court orders and court-ordered warrants; subpoenas or summons issued by a court, grand
jury, a governmental or tribal inspector general; or an administrative body authorized to
require the production of information.




Page 13                                    GAO-12-684 NICS Improvement Amendments Act
                          impediment to making such records available to NICS. To help address
                          these types of challenges as they relate to HIPAA, DOJ has asked HHS
                          to consider a potential change to the Privacy Rule that would specifically
                          allow disclosure of mental health records for NICS reporting purposes.
                          According to a senior HHS health information privacy policy specialist,
                          HHS is in the process of reviewing this issue and has not yet made a
                          decision to pursue a proposed change to the Privacy Rule.

Coordination Challenges   DOJ and state officials we met with said that states often faced
                          challenges in getting relevant state agencies to collaborate, particularly
                          because many mental health records reside in entities—such as hospitals
                          and departments of mental health—that are typically not connected to the
                          law enforcement agencies that make the majority of records available to
                          NICS. For example, according to the State of Illinois’ Office of the Auditor
                          General, approximately 114,000 mental health records were maintained
                          in state nursing homes, private hospitals, state mental health facilities,
                          and circuit courts in 2010. 27 However, because of coordination and other
                          challenges, only about 5,000 records (or 4.4 percent) were made
                          available to the FBI. In addition, 2 of the 6 states in our sample reported
                          that deciding which state agency would act as the liaison to the FBI was
                          challenging because of limited staff resources and technological
                          requirements needed to make records available. New Mexico, for
                          instance, has not yet assigned responsibility to an agency to be the
                          primary entity for making mental health records available to the FBI,
                          despite discussions surrounding this issue over the past 4 years. New
                          Mexico’s Administrative Office of the Courts has recently provided
                          records on approximately 6,000 individuals who were committed to a
                          mental institution directly to the FBI for NICS checks, but state officials
                          have not yet coordinated their efforts and decided collectively on what
                          entity will be responsible for providing such records in the future because
                          of the resources needed to do so.

                          DOJ acknowledged that complete reporting of state records to national
                          databases can best be achieved through the cooperative efforts of all
                          entities that create the records. Underscoring the importance of
                          collaboration, BJS has recommended that NARIP grant recipients use a
                          portion of grant funds to establish NICS Record Improvement Task


                          27
                            State of Illinois, Office of the Auditor General, Management Audit of the Department of
                          State Police’s Administration of the Firearm Owner’s Identification Act (Springfield, Illinois:
                          April 2012).




                          Page 14                                      GAO-12-684 NICS Improvement Amendments Act
                          Forces, to include representatives from the central record repository and
                          other agencies. According to DOJ, task forces with wide representation
                          can provide a forum for exploring possible options for improving the
                          quality, completeness, and availability of NICS records. Idaho officials, for
                          example, noted that forming such a multijurisdictional working group was
                          extremely helpful for learning which state entities housed relevant mental
                          health records.

                          DOJ officials also said that several states overcame coordination
                          challenges by conducting outreach to entities involved with providing
                          mental health records and educating them about the importance of
                          making such records available to NICS. Texas Department of Public
                          Safety officials reported collaborating closely with courts by distributing
                          training and guidance documents to ensure that the courts understood
                          the types of mental health records that should be made available to NICS.
                          The guidance materials also include an outline of the importance of
                          mental health records for background checks, the types of cases to
                          report, instructions on how to input relevant records into Texas’s record
                          system, and a frequently asked questions document for reference.


States Generally Found
DOJ Assistance with
Providing Mental Health
Records Helpful

Grants                    NARIP grants were established to improve the completeness,
                          automation, and transmittal of records used during NICS background
                          checks. Since its inception 3 years ago, the grant program has awarded
                          approximately $40 million to 14 states. 28 DOJ has placed an emphasis on
                          increasing the submission of mental health records as part of the 2011
                          and 2012 grant solicitations. Of the 16 NARIP grant applicants in 2011,
                          11 applicants requested funding for mental health record-related


                          28
                            Section 103 of the NIAA authorizes appropriations for the NARIP grants for fiscal years
                          2009 through 2013 in the following amounts: fiscal year 2009: $125 million; fiscal year
                          2010: $250 million; fiscal year 2011: $250 million; fiscal year 2012: $125 million; fiscal
                          year 2013: $125 million. Actual appropriations have been as follows: fiscal year 2009: $10
                          million (Pub. L. No. 111-8, 123 Stat. 524 (2009)); fiscal year 2010: $20 million (Pub. L. No.
                          111-117, 123 Stat. 3034 (2009)); fiscal year 2011: $16.1 million (Pub. L. No. 112-10, 125
                          Stat. 38 (2011)); fiscal year 2012: $5 million (Pub. L. No. 112-55, 125 Stat. 552 (2011)).




                          Page 15                                     GAO-12-684 NICS Improvement Amendments Act
activities. In addition, 6 of the 16 NARIP grant applicants in 2011
requested funds for technology-related improvements to increase the
submission of mental health records, including updating information
system hardware and automating the record submission process.

Officials from 2 of the 3 states in our sample that received NARIP grants
reported using a portion of the funds to address technological barriers to
submitting mental health records. For example, Idaho officials reported
using NARIP grant funds it received in 2010 to create a new transmission
protocol to provide relevant data related to state mental health records.
State officials said these grants were instrumental in funding the
programming, testing, and software upgrades needed to create the
database. State officials have also reported using NARIP grants to
research which state agencies house mental health records that could be
used during NICS background checks. Specifically, 6 of the 16 NARIP
grant applicants in 2011 requested funding to conduct assessments to
identify where relevant mental health records reside within the state in
order to improve their efforts to provide such records for a NICS check.

In addition to NARIP grants, DOJ administers the National Criminal
History Improvement Program and JAG Program, which can also be used
to support state efforts to improve mental health records, among other
things. For example, in 2008, we reported that from fiscal years 2000
through 2007, almost $940,000 in NCHIP grants were specifically
targeted to improve the availability of mental health record for use during
NICS background checks. 29 All 6 states in our sample have received
NCHIP grants, but officials in all of these states said they did not use the
funding to improve the submission of mental health records. Rather,
these states used NCHIP funds for activities regarding criminal history
records in state repositories. For example, 1 state in our sample used
2011 NCHIP funds to reconcile approximately 60,000 open arrest records
with their corresponding dispositions. The JAG Program also supports
information-sharing programs in criminal justice entities. For example, in
2009, states spent $89.6 million (7 percent of total funds for that year) on
information-sharing projects, such as initiatives to increase records
provided to NICS. An additional $33 million (3 percent) was spent on




29
 GAO, Bureau of Justice Statistics Funding to States to Improve Criminal Records,
GAO-08-898R (Washington, D.C.: July 8, 2008).




Page 16                                  GAO-12-684 NICS Improvement Amendments Act
              criminal records management upgrades and other technology for
              information sharing. 30

Training      DOJ also offers in-state training sessions to educate state agencies about
              NIAA-related topics, including issues related to the submission of mental
              health records. For example, since enactment of NIAA, the NICS Section
              has reported conducting presentations to law enforcement officials
              responsible for providing records to NICS. Specifically, DOJ reported
              conducting in-state trainings and presentations in 7 states. These
              presentations covered the definition of the mental health prohibitor and
              how to enhance state plans regarding the submission of mental health
              records. Further, 3 of the 6 states in our sample reported using these
              training presentations to provide information about the mental health
              prohibitor. For instance, at Texas’s request, the NICS Section held
              presentations for judges, clerks, and other relevant parties to answer
              questions about the types of mental health records requested under
              NIAA. Additionally, Washington state officials were complimentary of the
              NICS Section personnel that travel once a year to eight different locations
              within the state to provide training on the federal prohibitors to their law
              enforcement agencies.

Conferences   DOJ also hosts and sponsors conferences in which relevant DOJ
              components present information on numerous topics, including those
              related to making more mental health records available. For example,
              DOJ’s first conference regarding NIAA provisions—the NIAA
              Implementation Conference—was held in 2009, and DOJ officials
              reported that officials from almost every state attended. The NICS Section
              also sponsors annual Report, Educate, Associate Criminal Histories
              (R.E.A.C.H.) conferences, which focus on improving information sharing
              between the NICS Section and external agencies. The NICS Section also
              sponsors annual NICS User Conferences for states that conduct their
              own NICS checks, which covers topics such as the federal firearm
              prohibitors and how to submit records to the NICS Index. Officials from all
              6 states in our sample had attended at least one DOJ-sponsored
              conference and generally found these events to be helpful for learning
              about various aspects of the NIAA, such as how to make certain mental
              health records available to the FBI. Additionally, an official from 1 of the 6


              30
                National Criminal Justice Association, Byrne JAG Improves Public Safety and Prevents
              Crime: How States Use the Byrne JAG Formula Grant Program to Advance Criminal
              Justice Information Sharing, 2010.




              Page 17                                  GAO-12-684 NICS Improvement Amendments Act
states in our sample said that the documents distributed by DOJ were
particularly useful and officials in their state referenced them regularly.

Beginning in 2011, DOJ began sponsoring annual regional NIAA
conferences, in conjunction with the National Center for State Courts and
SEARCH. These events are intended to provide a forum for states to
share their experiences in identifying, collecting, automating, and
submitting records. For example, at the December 2011 regional NIAA
meeting, Oregon officials shared their state’s experience in developing a
system to share mental health records, including an explanation of which
state agencies collaborated to share such records and how the state used
NARIP grant funds to automate and transmit records. Two of the 6 states
in our sample also reported benefiting from learning about other states’
experiences in collecting and submitting mental health records.
Specifically, officials in Idaho and Washington noted that hearing about
other states’ experiences during a regional conference provided them
with technical advice on how to create linkages between existing mental
health record systems and helped them determine where relevant records
resided. In some cases, the sharing of experiences with mental health
records led to sustained relationships and networks among states. For
example, following their presentation to several northeastern states at a
2011 NIAA regional conference, New York officials reported sharing best
practices and lessons learned with Connecticut and New Jersey officials.
According to DOJ officials, five regional conferences have been held, with
a total of 38 states attending one of these meetings.




Page 18                              GAO-12-684 NICS Improvement Amendments Act
DOJ Has Not Identified   Although hearing about the experiences of other states during regional
and Disseminated         conferences has been helpful for some states in making mental health
Promising Practices of   records available to NICS, DOJ has not yet identified promising practices
                         employed by all states or shared this information nationally. 31 Officials
Successful States
                         from all 6 states in our sample noted that the sharing of promising
Nationally               practices among states may be helpful to, among other things, guide
                         future policy decisions and spur ideas on how to improve reporting efforts.
                         Further, BJS officials acknowledged that there are benefits to sharing
                         such practices and said that learning about the experiences of other
                         states can introduce state officials to new ways of approaching
                         challenges, such as how to address technology challenges, legal barriers,
                         and coordination issues.

                         The NIAA requires BJS to submit an annual report to Congress and those
                         states participating in NCHIP that outlines best practices of those states
                         regarding the collection, maintenance, automation, and transmittal of
                         information for use in a NICS check once the agency considers certain
                         actions to be best practices. BJS officials said that they have not yet
                         reported on best practices because they were uncertain whether there
                         were enough practices in place that could be considered best practices.
                         However, the officials noted that they recognized the value of states
                         learning about the experiences of other states and that this information
                         would be useful for those states that were presently making few records
                         available. Further, internal control standards note that agency
                         management should ensure that pertinent information is identified,
                         captured, and distributed in a form and time frame that permits people to
                         perform their duties efficiently. 32 Identifying and distributing promising
                         practices nationally could better position DOJ to assist states in the early




                         31
                           Although often used interchangeably, best practices typically represent a higher
                         standard of proven effectiveness than promising practices. The National Resource Center
                         defines a best practice as a program, activity, or strategy that has been shown to work
                         effectively and produce successful outcomes and is supported to some degree by
                         subjective and objective data sources. On the other hand, a promising practice is a
                         program, activity, or strategy that has worked within one organization and shows promise
                         during its early stages for becoming a best practice with long-term sustainable impact. A
                         promising practice must have some objective basis for claiming effectiveness and must
                         have the potential for replication among other agencies. The National Resource Center,
                         Intermediary Development Series: Identifying and Promoting Promising Practices. 2004
                         32
                           GAO, Standards for Internal Control in the Federal Government, GAO-AIMD-00-21.3.1
                         (Washington, D.C.: Nov. 1999).




                         Page 19                                   GAO-12-684 NICS Improvement Amendments Act
                              phases of their efforts to make mental health records available and
                              address barriers they face in providing these records.


                              States’ overall progress in providing unlawful drug use records—which
States Generally Are          encompasses both criminal and noncriminal records—is generally
Not Sharing Unlawful          unknown; however, available data indicate that most states are not
                              providing noncriminal records. 33 DOJ’s overall efforts to improve criminal
Drug Use Records              history records have assisted state efforts to provide unlawful drug use
That Are Not                  records. DOJ has issued guidance related to the unlawful drug use
Associated with an            records that are noncriminal, but states in our sample raised concerns
                              about providing these kinds of records.
Arrest or Conviction
State Progress in Providing   The states’ progress in providing unlawful drug use records—which
Unlawful Drug Use             encompasses both criminal and noncriminal records—is generally
Records Is Generally          unknown, but available data suggest that most states are not providing
                              the noncriminal records. According to NICS Section officials, the majority
Unknown; Available Data       of unlawful drug use records that states make available for NICS checks
Suggest Most States Are       are criminal records—such as those containing convictions for use or
Not Providing Noncriminal     possession of a controlled substance—and are made available to NICS
Records                       through the III. The officials noted, however, that these criminal records
                              cannot readily be disaggregated from the over 60 million other criminal
                              history records in the database because there is no automatic process to
                              identify subsets of records within the III in each prohibited category. 34
                              Three of the 6 states in our sample—Idaho, Washington, and New York—
                              were able to provide data on the number of criminal drug use records
                              they made available to NICS, which showed 14,480 records, 553,433
                              records, and 1,659,907 records as of January 2012, January 2012, and
                              December 2011, respectively.




                              33
                                With respect to the statutory unlawful drug use prohibitor, under ATF regulations and
                              guidance, unlawful drug use records can include both criminal drug use records (those
                              with an associated arrest or conviction) and noncriminal drug use records (those without
                              an associated arrest or conviction). Noncriminal drug use records, for example, can be
                              the basis for an inference of current use or possession of a controlled substance and such
                              an inference may be drawn from evidence of a recent use such as a drug test found to be
                              positive for a controlled substance.
                              34
                                Search queries in the III are done using names and other identifiers. If a match is found,
                              the record requests are made from the appropriate state record repository.




                              Page 20                                    GAO-12-684 NICS Improvement Amendments Act
The states’ progress in sharing unlawful drug use records that are
noncriminal is also generally unknown because, per regulation, these
records are retained in the NICS Index for only 1 year after the date of the
operative event (e.g., the date of the most recent drug-related arrest in
the case of an individual with multiple drug-related arrests). According to
NICS Section officials, because these records are routinely added and
deleted from the NICS Index, the overall trend in the states’ efforts to
provide these records is difficult to discern. Available data suggest,
however, that most states are not making these records available.
According to FBI data, on May 1, 2012, the NICS Index contained a total
of 3,753 unlawful drug use records that are noncriminal, of which about
2,200 came from Connecticut. 35 On the other hand, also on that date, 30
states, the District of Columbia, and all five U.S. territories had not made
any of these records available. DOJ officials agreed that most states
generally are not making these records available.

From 2004 to 2011, an increasing number (but a lower percentage) of
firearm transactions were denied based on unlawful drug use records that
states make available to NICS. According to FBI data, the number of
firearm transactions that were denied based on unlawful drug use records
(both criminal and noncriminal) increased from 5,806 in 2004 (7.6 percent
of 75,990 total denials) to 7,526 in 2011 (6.1 percent of 123,432 total
denials). 36 The FBI did not have data on the number of firearm
transactions that were denied based on criminal versus noncriminal drug
use records, but NICS Section officials noted that the vast majority of
denials have been based on criminal records.




35
  Officials from Connecticut said that they convened multiple state agencies over a period
of several months to develop a list of 50 statutes and codes that the state would report to
the NICS Index for unlawful drug use, which includes misdemeanors for the illegal sale of
prescription drugs or infractions for the possession of marijuana. The officials added that
the majority of these records are from cases where a person mails in a fine for possessing
a small amount of marijuana, which in Connecticut does not result in an arrest or court
appearance.
36
  As with the denials based on mental health records, NICS Section officials noted that
the number of denials based on unlawful drug use records may be underreported since
some states conduct their own NICS checks and have not always reported the reason for
denials to the FBI.




Page 21                                    GAO-12-684 NICS Improvement Amendments Act
DOJ’s Efforts Assist States   DOJ efforts to help states address challenges in providing criminal drug
in Providing Unlawful         use records have increased the ability of states to provide such records.
Drug Use Records              Officials from the states in our sample identified several challenges
                              related to criminal drug use records. For example, officials from 3 of the 6
                              states noted that having drug-related records without fingerprints was a
                              challenge because fingerprints are needed to send these records to state
                              repositories and the III. Additionally, officials from 3 of the 6 states
                              reported that it was difficult to match arrest records from drug offenses to
                              their corresponding dispositions, making it sometimes challenging to
                              determine if an individual should be prohibited under federal law from
                              receiving or possessing a firearm.

                              DOJ has engaged in various efforts to address state challenges in
                              providing criminal history records—including unlawful drug use records—
                              and officials from the states in our sample were generally satisfied with
                              the assistance they have received. Using NCHIP grants—which are
                              intended to help states enhance the quality, completeness, and
                              accessibility of criminal history records—states have purchased systems
                              to automate criminal history records, researched arrest records to
                              reconcile them with their corresponding dispositions, and performed
                              audits of local law enforcement agencies’ criminal history record systems.
                              Further, during a NIAA conference, officials from 1 state reported using
                              NARIP grants to develop software that automatically linked arrests to their
                              corresponding dispositions, which allowed the state to move away from
                              paper-based files and ultimately resulted in the state making more
                              criminal records available for NICS checks. Additionally, the National
                              Center for State Courts, under a DOJ grant, is managing a project to
                              nationally disseminate guidance, information, and state best practices to
                              help ensure the completeness of criminal history records located in state
                              repositories. Specifically, the center is designing an online repository of
                              resources for states to improve their reporting of criminal dispositions and
                              arrests, including those that involve unlawful drug use. A center official
                              reported that the project is scheduled to be completed by April 2013.
                              NARIP funding has also been used to address challenges to providing
                              criminal drug use records. For example, Idaho state officials reported
                              using NARIP grants to replace aging fingerprint-scanning technology in
                              order to make fingerprints more readily available for criminal disposition
                              records.




                              Page 22                             GAO-12-684 NICS Improvement Amendments Act
DOJ Has Issued Guidance   DOJ has taken steps to help clarify the regulatory definition of unlawful
on Noncriminal Unlawful   drug use records that are noncriminal for states. For example, DOJ has
Drug Use Records, but     made copies of the regulation that identifies the scope of these records
                          for NICS checks available on its websites. DOJ officials have also
States Have Concerns      conducted presentations at NIAA regional conferences that illustrated
about Providing These     examples of records that fall within the scope of the definition of
Records                   noncriminal drug use records. Also, in January 2011, the NICS Section
                          provided written guidance to the 13 states that conduct their own federal
                          firearm background checks. This guidance identifies a variety of
                          scenarios from which an inference of current unlawful drug use may be
                          drawn, thereby constituting a prohibition. Although the majority of the
                          document focuses on inferences that can be drawn from criminal history
                          records, there are records outside a criminal history itself that can support
                          such an inference—for example, a positive drug test for persons on active
                          probation.

                          Despite this guidance, states generally are not making noncriminal drug
                          use records available to NICS. For example, officials from 4 of the 6
                          states in our sample reported that they were uncomfortable with the
                          amount of judgment law enforcement officials were being asked to make
                          outside of an official court decision regarding an individual’s potentially
                          prohibited status. 37 Officials from 2 of these 4 states also noted that
                          making these kinds of judgments could present a legal risk to the state
                          and could result in lawsuits from individuals prohibited from receiving or
                          possessing a firearm who had not been convicted of crimes. For example,
                          Minnesota officials explained that drug tests and other ways to infer drug
                          use or possession could be inaccurate and individuals could be prohibited
                          from receiving or possessing firearms based on the wrong information
                          and without due process.

                          Officials from 5 of the 6 states we reviewed reported other challenges in
                          making the noncriminal subset of unlawful drug use records available to
                          NICS. For example, officials from New Mexico and Minnesota were
                          unaware of certain types of records that could be made available under
                          the ATF regulatory language regarding making an inference of current
                          drug use, such as records indicating a failed drug test for a controlled


                          37
                            With respect to the unlawful drug use prohibitor, ATF regulations provide that an
                          inference of current use of a controlled substance may be drawn from evidence of a
                          recent use or possession or a pattern of use or possession that reasonably covers the
                          present time. 27 C.F.R. § 478.11.




                          Page 23                                   GAO-12-684 NICS Improvement Amendments Act
                      substance. Officials from Texas and Minnesota reported that their states
                      did not have centralized databases that would be needed to collect these
                      records. For example, officials from Minnesota noted that failed drug test
                      results for individuals on active probation are kept at each individual’s
                      supervisory agency and there is no centralized system to gather these
                      and provide them to NICS. Officials from Texas and Washington noted
                      that new state laws permitting agencies to share these types of records
                      would need to be established in order to overcome conflicts with their
                      state privacy laws.

                      DOJ officials agreed that states generally are not making unlawful drug
                      use records that are noncriminal available to NICS. Pursuant to ATF
                      regulations, these records may be utilized only before their period of
                      potential use “expires”—that is, if they relate to an operative event, like an
                      arrest, if the event occurred within the past year. DOJ officials noted that
                      making records available—particularly those that are removed from the
                      system 1 year after the date of the operative event—is challenging and
                      would require a great deal of effort, time, and resources on the part of
                      both states and the federal government. The officials added that capturing
                      these records has not been a priority for DOJ or the states because
                      current efforts have focused primarily on collecting mental health records
                      and records on misdemeanor crimes of domestic violence, records that
                      do not expire. DOJ officials also stated that despite the department’s
                      efforts to train states and provide guidance, the scope of unlawful drug
                      use records that are noncriminal is difficult for states to interpret.


                      DOJ has not administered NIAA reward and penalty provisions because
DOJ Has Not           of limitations in state record estimates, which are to serve as the basis for
Administered Reward   implementing the provisions. Officials from the states in our sample had
                      mixed views on the extent to which the act’s reward and penalty
and Penalty           provisions—if implemented as currently structured—would provide
Provisions; Sample    incentives for the state to make more records available to NICS.
States Had Mixed
Views on whether
Provisions Provided
an Incentive




                      Page 24                             GAO-12-684 NICS Improvement Amendments Act
States Face Challenges      Limitations in state record estimates—which are estimates of the number
Developing Record           of applicable records states possess that are or could be made available
Estimates, Limiting Their   for use during NICS checks—have hindered DOJ’s ability to administer
                            the NIAA reward and penalty provisions. These provisions are intended to
Usefulness as a Basis to    provide incentives for states to share greater numbers of records by
Implement Rewards and       rewarding states that provide most or all of their records and penalizing
Penalties                   states that provide few of their records. The act further specifies that the
                            basis for the rewards and penalties should be state record estimates and
                            directs DOJ to develop a methodology for determining the percentages of
                            records states are making available.

                            The National Center for State Courts—with which BJS contracted to
                            review the reasonableness of the state record estimates—identified
                            numerous limitations with the estimates. 38 For example, the center found
                            that states often lacked technology to query data for the record estimates
                            and could not access many records because they were lost, in a legacy
                            system that was no longer available for making inquiries, or were paper
                            files that were not stored in a manner practical for searching. 39 The center
                            also found that many states lacked the ability to report certain records—
                            such as mental health adjudications—because of state statutory issues,
                            could not distinguish criminal unlawful drug use records from other
                            records, or had deleted relevant records.

                            According to BJS officials, states face challenges in accurately estimating
                            both the total number of unique records that reside at agencies around
                            their states and the total number of these records that are made available
                            electronically to NICS. The officials added that most state data systems
                            were created and operate for the primary purpose of generating an
                            individual’s record of arrests and prosecutions. Therefore, these systems
                            do not have basic file analysis capabilities—such as the ability to search


                            38
                              These challenges are detailed in two publically available reports. R. Schauffler, S.
                            Strickland, A. Mason, O. Greenspan, D. DeBacco. NICS Improvement Amendments Act:
                            State Records Estimates Development and Validation Project, Year One Report. National
                            Center for State Courts. (September, 2010), and R. Schauffler, S. Strickland, A. Gallegos,
                            O. Greenspan, D. DeBacco, A. Webb-Edgington. NICS Improvement Amendments Act:
                            State Records Estimates Development and Validation Project, Year Two Report. National
                            Center for State Courts. (December, 2011).
                            39
                              The seven categories of records requested by BJS were felony convictions, active
                            indictments, active wants and warrants, unlawful drug use, records covering mental health
                            adjudications, protection or restraining orders, and convictions for misdemeanor crimes of
                            domestic violence.




                            Page 25                                   GAO-12-684 NICS Improvement Amendments Act
text fields for key terms—which would allow the states to search for and
count certain types or categories of records. The officials noted that it is
very hard to affect or change the design limitations of existing data
systems and that making these kinds of changes is costly. Further, they
said that changing state data systems for the purpose of counting or
estimating records was not something states would need or want since
most of the technical improvements states make to their systems relate to
data input—such as increasing the automation of criminal records.

BJS officials were not certain the challenges with developing record
estimates could be overcome, and the department is not collecting record
estimates for 2012. 40 Although BJS has not finished analyzing the third
year of state record estimates, the officials said they did not know if the
state record estimates, as currently collected, would ever reach the level
of precision that would be needed to administer the NIAA reward and
penalty provisions. The officials noted that estimates in some of the
categories—such as felony convictions and mental health—were possibly
usable as the basis for rewards and penalties and that these data are
more reliable than data collected in other categories.

DOJ and officials from 1 of the states in our sample said that there were
some benefits to completing the record estimates. For example, based in
part on New York’s efforts to estimate the number of records on
misdemeanor crimes of domestic violence, New York officials reported
that the state passed a statute to recognize such crimes as their own
category of misdemeanor, which could allow the courts to distinguish
such crimes for submission to NICS. Nonetheless, in its most recent
analysis of state record estimates, the National Center for State Courts
reported that much remains unknown about whether this data collection
exercise actually generated any benefits, such as heightened cooperation
or improvements in the number of records states make available to NICS.
The officials noted that after BJS finishes reviewing the state record
estimates that it collected in 2011, BJS plans to convene focus groups


40
  BJS officials cited other reasons for not collecting record estimates in 2012. For
example, BJS officials noted that the NIAA only requires an initial estimate from states and
therefore states did not need to provide an estimate every year. Second, BJS officials
reported that the Paperwork Reduction Act of 1995 (Pub. L. No. 104-13 (1995)) requires
DOJ to obtain Office of Management and Budget approval to collect information such as
the estimates and this approval expired September 2011. Therefore, without justifying the
need for additional data collection, the department could not send a data collection
instrument out to states for 2012.




Page 26                                    GAO-12-684 NICS Improvement Amendments Act
                            with states and other stakeholders to determine which aspects of the
                            record estimate data collection process have been useful for states and
                            which have not. BJS will also consider what, if any, additional data it will
                            collect from states in the future and whether it can develop a workable
                            estimate methodology. However, until BJS establishes a basis on which
                            rewards and penalties can be implemented, the agency will be limited in
                            its ability to carry out these provisions of the NIAA.


Sample States Had Mixed     Officials from the 6 states in our sample provided mixed views on the
Views on whether Rewards    extent to which the NIAA reward and penalty provisions, if implemented
and Penalties Provide       as currently structured, would provide incentives for their states to make
                            more records available for NICS checks. With respect to the NIAA reward
Incentives to Submit More   provision, officials from 1 state, for example, said that the waiver of the 10
Records                     percent matching requirement for NCHIP grants would be helpful and
                            added that there have been years when the state has not applied for
                            NCHIP funds because of the cost match. 41 With respect to the NIAA
                            penalty provision, the officials added that the penalty—which in their state
                            would have been over $100,000 in JAG Program funding in 2011—would
                            also motivate them to make more records available. Officials from another
                            state agreed that the potential impact of the penalty initially was an
                            incentive to share more records, but added that this has become less of a
                            motivator since DOJ has not yet administered the penalty provision.
                            Officials from the remaining 4 states were either generally unaware of the
                            NIAA reward and penalty provisions or how they would affect state efforts
                            to make more records available, or reported that they were a moderate to
                            no incentive.

                            BJS officials reported that they believed the NIAA reward and penalty
                            provisions provided little to some incentive for states to make records
                            available. For instance, BJS officials said the reward provision (i.e., the
                            waiver of the 10 percent NCHIP match) likely provided little incentive for
                            states to make more records available because states could use or apply
                            personnel costs (something they have to pay for regardless) to satisfy the



                            41
                              The NCHIP program requires that federal funds awarded not cover more than 90
                            percent of the total costs of the project being funded. The applicant must identify the
                            source of the 10 percent nonfederal portion of the total project costs and how the match
                            funds will be used. Applicants can satisfy the match requirement with either cash or in-
                            kind services. NCHIP awards in 2011 ranged from $56,000 to about $411,000, which
                            means the corresponding cost match ranged from about $6,000 to about $46,000.




                            Page 27                                   GAO-12-684 NICS Improvement Amendments Act
cost match requirement. Based on the amount of the 2011 grant awards,
the waiver of NCHIP’s 10 percent matching requirement would have
resulted in an average savings of $29,000 in matching funds per state. In
terms of penalties, BJS officials said the penalty provision (i.e., percent
reduction of JAG Program funding) could provide an incentive to states to
some extent, but that states faced significant obstacles in making records
available. Specifically, the penalty of 3 to 4 percent of JAG Program
funding could have resulted in an average grant reduction of up to about
$131,000 to up to about $176,000 per state in 2011. 42

Overall, BJS officials believed that public safety interests were what
motivated states to make records available, but had not yet determined
the extent to which the rewards and penalties, if administered as currently
structured, could provide incentives to states. When asked whether
different incentives would better motivate states, the officials suggested
that relaxing the restrictions on which states are eligible to receive NARIP
grant funding could make funds available to more states and in turn
encourage more record sharing. The officials said that given the financial
condition of most state governments, positive financial incentives (such
as increasing the amount of NIAA grant funding) were the best way to
encourage states to take action. The NIAA reward and penalty provisions
are intended to provide incentives for states to make more records
available to NICS, but the provisions—as currently structured—might not
provide the incentives that were envisioned by the act. Our prior work
shows that having the right incentives in place is crucial for operational
success. 43 An effective system of rewards and penalties could ultimately
provide better incentives for states to make records available for NICS
checks.




42
  This potential penalty was calculated using the Fiscal Year 2011 JAG Program state-
level grants. JAG Program grants also include a local solicitation where eligible local
governments can apply for funding directly to DOJ. The NIAA penalty language refers
generally to the JAG Program statute and does not differentiate between the state and
local solicitations. Therefore, the potential penalty could be higher if local JAG Program
funding is included.
43
 GAO-AIMD-00-21.3.1.




Page 28                                     GAO-12-684 NICS Improvement Amendments Act
                             Nineteen states have received ATF certification of their program that
Nineteen States Have         allows individuals who have been prohibited from possessing firearms
Programs to Relieve          due to a mental health adjudication or commitment to seek relief from the
                             associated federal firearms prohibition (disability). Grant eligibility was the
Federal Firearms             primary motivation for states to develop these relief programs, but
Prohibitions for             reduced funding may result in fewer new programs.
People with
Precluding Mental
Health Adjudications
or Commitments

Nineteen States Allow        From January 2009 through June 2012, ATF certified programs in 19
Individuals to Seek Relief   states that allow individuals with a precluding mental health adjudication
from Their Firearms          or commitment to seek relief from the associated federal firearms
                             prohibition, thus making these states eligible to receive NARIP grant
Prohibition, Making These    funding. 44 ATF certifies such relief from disabilities programs based on
States Eligible for Grant    the requirements contained in the NIAA. 45 ATF developed a minimum
Funding                      criteria checklist that specifies nine conditions that a state’s relief program
                             must satisfy and certifies states’ programs based on these requirements.
                             For example, a state’s program must be pursuant to state statute and
                             include due process requirements that allow persons seeking relief the
                             opportunity to submit evidence to the lawful authority considering the
                             relief application. This is to include the circumstances of the original
                             firearms disability (the circumstances that resulted in the individual being
                             prohibited from possessing firearms), the applicant’s mental health record
                             and criminal history records, and the applicant’s reputation as developed


                             44
                               As mentioned previously, to be eligible for NARIP grants, states must also provide DOJ
                             with estimates, pursuant to a methodology provided by the Attorney General, of their
                             numbers of potentially NICS-applicable records.
                             45
                               In general, the NIAA requires that such state relief from disabilities programs (1) permit
                             a person to apply to the state for relief; (2) provide that a state court, board, commission,
                             or other lawful authority grant the relief pursuant to state law and in accordance with the
                             principles of due process, if the circumstances regarding the mental health-related
                             disability and the person’s record and reputation, are such that the person will not be likely
                             to act in a manner dangerous to public safety and that the granting of relief would not be
                             contrary to the public interest; and (3) permit a person whose application for the relief is
                             denied to file a petition with the state court of appropriate jurisdiction for a judicial review
                             of the denial.




                             Page 29                                      GAO-12-684 NICS Improvement Amendments Act
                                        through character witness statements, testimony, or other character
                                        evidence. The reviewing authority must find that the applicant will not be
                                        likely to act in a manner dangerous to public safety and that granting relief
                                        would not be contrary to the public interest.

                                        State data collected from September 2011 through May 2012 show that 6
                                        of the 16 states that had a certified relief from disabilities program as of
                                        May 2012 reported that they had received applications from individuals
                                        seeking relief from their firearms disability. 46 As shown in table 1, these
                                        states reported receiving 60 applications, 26 of which were approved.

Table 1: Relief from Disabilities Applications Received, Approved, and Denied, as Reported from September 2011 to May 2012

                               Applications                                             Dismissed                Year         Date data
                                                                                                  a
                                 Received          Approved                   Denied   or Pending     Program Enacted         collected
Virginia                                 26                     9                  6            11               2011         Dec. 2011
New York                                 15                     0                 6              9               2009         Dec. 2011
Kentucky                                     9                  8                 1                              2011         May 2012
Iowa                                         8                  6                 2                              2011         Jan. 2012
Oregon                                       2                  2                                                2009         Feb. 2012
               b
New Jersey                         Unknown                      1         Unknown                                2010         May 2012
           b
Arizona                            Unknown                                                                       2011         Dec. 2011
           b
Florida                            Unknown                                                                       2010         Dec. 2011
Connecticut                                  0                                                                   2011         Dec. 2011
Idaho                                        0                                                                   2010         Jan. 2012
Illinois                                     0                                                                   2010       March 2012
Kansas                                       0                                                                   2011         Feb. 2012
North Dakota                                 0                                                                   2011         Dec. 2011
Nevada                                       0                                                                   2009         Feb. 2012
Texas                                        0                                                                   2010        Sept. 2011
Wisconsin                                    0                                                                   2010         Jan. 2012
Total                                    60                    26                 15            20
                                        Source: GAO analysis of state data.

                                        Notes: In June 2012, following completion of our audit work, three additional states—Indiana,
                                        Nebraska, and West Virginia—received certification of their relief from disabilities programs. These
                                        states’ data are not included in this report.




                                        46
                                          In June 2012, three additional states—Indiana, Nebraska, and West Virginia—received
                                        certification of their relief from disabilities programs.




                                        Page 30                                               GAO-12-684 NICS Improvement Amendments Act
                              a
                               According to Virginia officials, dismissed refers to applications that were closed with no action taken
                              in the matter. Pending refers to applications that were under consideration but had not been
                              approved, denied, or dismissed.
                              b
                               The state did not know how many applications it had received because its court system was not
                              centralized in a way that would allow the state to readily know this information. Officials noted,
                              however, that they would be aware of approved applications.


Grant Eligibility Was an      DOJ officials reported that most states that develop relief from disability
Incentive to Develop Relief   programs do so to be eligible for NARIP funding, and officials from 10 of
Programs, but Reduced         the 16 states that had ATF-approved relief programs as of May 2012
                              reported that eligibility to receive NARIP funds greatly motivated their
Funding May Result in         state to pursue developing such a program. Officials from 5 of the
Fewer New Programs            remaining states said NARIP eligibility was some incentive or a moderate
                              incentive, and officials from 1 state said it was no incentive. Given the
                              reduced amount of NARIP funding for fiscal year 2012 (from $16.1 million
                              in 2011 to $5 million in 2012), it is not clear how much of an incentive
                              NARIP funding will be for the remaining states to pursue passing such
                              legislation. Table 2 provides NARIP grant awards by state from fiscal year
                              2009 to fiscal year 2011. 47




                              47
                                  At the time of our review, the fiscal year 2012 grant funds had not been awarded.




                              Page 31                                          GAO-12-684 NICS Improvement Amendments Act
Table 2: States with Federal Relief Programs and NARIP Grant Awards by State, Fiscal Year 2009 to Fiscal Year 2011

                                                                                                                             Award Total as
                                                                                                                               Percentage
                                                            FY 2009             FY 2010            FY 2011       Award Total       of Total
                                                             Award              Awards              Award        2009 – 2011  NARIP funds
New York         Division of Criminal Justice
                 Services                                   $937,411         $5,994,588        $3,198,502        $10,130,501                 25.6%
Florida          Department of Law Enforcement                               $3,159,228        $2,574,915          $5,734,143                14.5%
Oregon           Oregon State Police                        $770,849         $2,000,000        $1,131,260          $3,902,109                   9.9%
New Jersey       State Administrative Office of the
                 Courts                                                         $860,331       $2,772,560          $3,632,891                   9.2%
Wisconsin        Office of Justice Assistance                                   $981,372       $2,500,000          $3,481,372                   8.8%
Connecticut      Office of Policy and Management                                               $3,250,000          $3,250,000                   8.2%
Idaho            Idaho State Police                                          $1,949,578        $1,206,010          $3,155,588                   8.0%
Kentucky         Justice and Public Safety
                 Cabinet                                                                       $1,390,181          $1,390,181                   3.5%
Texas            (1) Department of Public Safety;
                 (2) Office of Court Administration                             $751,537          $547,039         $1,298,576                   3.3%
Illinois         Criminal Justice Information
                 Authority                                                   $1,209,500                            $1,209,500                   3.1%
Nevada           Department of Public Safety                $798,471                                                 $798,471                   2.0%
Virginia         Department of State Police                                                       $764,100           $764,100                   1.9%
Arizona          Criminal Justice Commission                                                      $582,932           $582,932                   1.5%
North Dakota     Office of Attorney General                                                       $205,973           $205,973                   0.5%
       a
Iowa                                                                                                                         $0
           b
Kansas                                                                                                                       $0
                                              Source: DOJ

                                              Notes: In June 2012, following completion of our audit work, three additional states—Indiana,
                                              Nebraska, and West Virginia—received certification of their relief from disabilities programs. These
                                              states’ data are not included in this report.
                                              a
                                                Iowa, though eligible to receive NARIP funding, had not applied through the 2011 grant round.
                                              b
                                               Kansas applied for funding in 2009 but did not meet the eligibility requirements that year, and has not
                                              applied since.


                                              Three of the 6 states we reviewed did not have a certified relief from
                                              disabilities program. Officials in 1 of these states (whose relief program
                                              did not meet the federal standard for certification) said that NARIP
                                              funding was an incentive to establish a relief program but that the smaller
                                              amount of NARIP funding available for fiscal year 2012 is one reason why
                                              the state was not willing to extend the effort to revise its relief program to
                                              meet the federal standard in the future. Officials in the second state
                                              whose program was pending ATF review said that NARIP grant eligibility



                                              Page 32                                          GAO-12-684 NICS Improvement Amendments Act
was a little incentive to develop a relief from disabilities programs.
Officials in the third state reported that they were not aware of the NARIP
grant program, and accordingly, it did not affect any decisions regarding
developing a relief from disabilities program.

After the passage of the NIAA, DOJ sent a letter to every state’s governor
explaining the relief from disabilities program provision and the minimum
criteria a state’s program would have to meet for ATF certification. DOJ
officials also gave presentations at state conferences and regional
meetings where they discussed the relief program criteria, explained that
a certified relief from disabilities program is a requirement to be eligible to
receive NARIP grant funding, and provided points of contact for states to
call if they needed technical assistance with their draft legislation. State
officials generally had positive feedback regarding the technical
assistance they received from ATF. For example, officials in Arizona said
that ATF assisted the state with drafting language to amend a state
statute and that this was precisely the assistance the state needed. New
Jersey officials added that throughout the development of their draft relief
provision legislation, ATF reviewed proposed amendments and ensured
that they complied with the NIAA standards prior to the state advancing
such legislation through the state legislature.

State officials reported various challenges in developing relief from
disabilities programs, including managing the concerns of advocacy
groups and modifying state judicial processes to meet the federal
standard, such as the requirement to provide for de novo judicial review. 48
Officials from a state that had submitted draft relief legislation to ATF and
were awaiting a determination said that managing the competing interests
of various advocacy groups required a great deal of time and negotiation
and was a challenge to their efforts to pass relief legislation. The officials
noted that if ATF did not approve their legislation, they were not sure they
would propose a new program in a future legislative session. Officials
from 2 states that had successfully developed relief programs said that
competing pressures came from groups representing the families of
victims of gun violence, gun rights advocacy groups, and groups from the
mental health community that had privacy and other concerns. Other
officials from a state without a relief from disabilities program did not



48
  In general, de novo judicial review is a review of the matter anew; the same as if it had
not been heard before and as if no decision had been previously rendered.




Page 33                                     GAO-12-684 NICS Improvement Amendments Act
              believe it was politically feasible in their state to have such a program and
              had therefore not sought to develop one.

              Officials from 6 of the 16 states that had ATF-approved relief from
              disabilities programs as of May 2012 noted that managing the competing
              interests of advocacy groups was a challenge. For instance, officials from
              1 state reported that the National Rifle Association, other gun rights
              advocacy groups, and members of the mental health community were all
              part of the process of drafting relief legislation, which took considerable
              time and effort to meet the federal criteria. The officials added that other
              states seeking to develop relief from disabilities programs should ensure
              buy-in with the various interested parties before the relief provision gets to
              the legislative stages.


              Sustained federal and state efforts to increase the comprehensiveness,
Conclusions   timeliness, and automation of records that support NICS background
              checks are critical to helping enhance public safety and helping to prevent
              tragedies such as the Virginia Tech shootings. The national system of
              criminal background checks relies first and foremost on the efforts of state
              and local governments to provide complete and accurate records to the
              FBI. While many states have made little progress providing critical
              records for gun background checks, the substantial increase in mental
              health records coming mostly from 12 states serves to demonstrate the
              great untapped potential within the remaining states and territories. States
              reported finding DOJ’s guidance, grants, and technical assistance useful,
              but DOJ has opportunities to provide additional support by identifying and
              sharing information on promising practices on what worked for the states
              that have made progress sharing mental health records as well as what
              lessons they have learned. By identifying and distributing promising
              practices nationally, DOJ would be better positioned to assist states in the
              early phases of their efforts to make mental health records available,
              address barriers, and identify solutions to challenges those states face in
              this effort.

              The NIAA reward and penalty provisions are intended to provide
              incentives for states to make more records available to NICS, but our
              review suggests that the provisions might not be providing the incentives
              that were envisioned by the act. Given that record sharing with NICS on
              the part of states is voluntary, it is important that DOJ devise an effective
              implementation of the incentives, including a reasonable basis upon
              which to base those incentives. By obtaining state views, DOJ could
              determine the extent to which the current NIAA provisions provide


              Page 34                              GAO-12-684 NICS Improvement Amendments Act
                      incentives to states, whether modifications to the provisions would
                      provide better incentives, or if alternative means for providing incentives
                      could be developed and implemented. Further, DOJ would need to
                      establish a basis on which these provisions or any future rewards and
                      penalties approaches could be administered. Carrying changes to the
                      state record estimates, as they are defined in the NIAA, may require DOJ
                      to develop and submit a legislative proposal to Congress to consider any
                      alternatives. Nonetheless, an effective system of rewards and penalties
                      could ultimately result in states providing more records for NICS
                      background checks.


                      To help ensure effective implementation of the NIAA, we recommend that
Recommendations for   the Attorney General take the following two actions.
Executive Action
                      •   To further assist states in their efforts to make mental health records
                          available for use during NICS background checks, work with states to
                          identify and disseminate promising state practices nationally so that
                          states in the early phases of their efforts to make such records
                          available can address barriers and identify solutions to challenges
                          faced in this effort.

                      •   To help ensure that incentives exist for states to make records
                          available for use during NICS background checks and that DOJ has a
                          sound basis upon which to base incentives, determine (1) if the NIAA
                          reward and penalty provisions, if they were to be implemented, are
                          likely to act as incentives for states to share more records, and (2) if,
                          given limitations in current state estimates, whether DOJ can develop
                          a revised estimate methodology whereby states are able to generate
                          reliable estimates as a basis for DOJ to administer the NIAA reward
                          and penalty provisions. If DOJ determines either (1) that the reward
                          and penalty provisions are not likely to provide incentives for states to
                          share more records or (2) that it is unable to establish a revised
                          methodology upon which to administer the reward and penalty
                          provisions, DOJ should assess if there are other feasible alternatives
                          for providing incentives or administering the provisions and, if so,
                          develop and submit to Congress a legislative proposal to consider
                          these alternatives, as appropriate.




                      Page 35                             GAO-12-684 NICS Improvement Amendments Act
                  We provided a draft of this report for review and comment to DOJ. The
Agency Comments   department provided written comments, which are summarized below and
                  reprinted in appendix V. DOJ agreed with both of our recommendations
                  and identified actions it plans to take to implement them. DOJ also
                  provided us with technical comments, which we incorporated as
                  appropriate.

                  DOJ agreed with our recommendation that the department identify and
                  disseminate the promising practices of states in making mental health
                  records available for use during NICS background checks. The
                  department noted that BJS is collaborating with other relevant DOJ
                  components to identify state promising practices. DOJ added that once
                  these practices have been identified, BJS will disseminate this information
                  to the states through electronic mailing lists, the BJS website, other
                  partner agency sites, and at relevant meetings and conferences.

                  DOJ also agreed with our recommendation that the department (1)
                  ensure that the NIAA reward and penalty provisions are likely to act as an
                  incentive for states to share more records and (2) develop a methodology
                  upon which to administer the reward and penalty provisions. In its
                  response, DOJ noted that BJS has determined that the current
                  methodology for reporting estimates of available records does not result
                  in sufficiently reliable estimates on with to base rewards and penalties. In
                  light of this conclusion, BJS decided to not collect a fourth year of
                  estimates but instead focus its efforts on identifying whether there are
                  solutions that would allow BJS to use the estimates in the way the NIAA
                  intended. BJS plans to convene a focus group of states to determine
                  whether a better methodology can be developed and, if so, what
                  attributes the revised methodology would entail. BJS also plans to use
                  this same focus group to explore states’ reactions to the reward and
                  penalty provisions and to assess whether those provisions are likely to
                  provide suitable incentives for the states to increase record sharing.


                  We are sending copies of this report to the appropriate congressional
                  committees, the Department of Justice, and other interested parties. In
                  addition, this report is available at no charge on the GAO Web site at
                  http://www.gao.gov.




                  Page 36                             GAO-12-684 NICS Improvement Amendments Act
If you or your staff members have any questions about this report, please
contact Carol Cha at (202) 512-4456 or chac@gao.gov, or Eileen
Larence at (202) 512-6510 or larencee@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made major contributions to
this report are listed in appendix VI.




Carol Cha
Acting Director, Homeland Security and Justice Issues




Eileen Larence
Director, Homeland Security and Justice Issues




Page 37                           GAO-12-684 NICS Improvement Amendments Act
List of Requesters

The Honorable Lamar S. Smith
Chairman, Committee on the Judiciary
House of Representatives

The Honorable Lois Capps
House of Representatives

The Honorable John D. Dingell
House of Representatives

The Honorable Carolyn McCarthy
House of Representatives




Page 38                          GAO-12-684 NICS Improvement Amendments Act
Appendix I: Objectives, Scope, and
              Appendix I: Objectives, Scope, and
              Methodology



Methodology

              We assessed the progress the Department of Justice (DOJ) and states
              have made in implementing key provisions of the National Instant
              Criminal Background Check System (NICS) Improvement Amendments
              Act of 2007 (NIAA). Namely, the extent to which

              •   states have made progress in making mental health records available
                  for use during NICS background checks and DOJ could take actions
                  to help states overcome challenges in providing these records,
              •   states have made progress in making unlawful drug use records
                  available for use during NICS background checks and DOJ could take
                  actions to help states overcome challenges in providing these
                  records,
              •   DOJ has administered the reward and penalty provisions provided for
                  in the act and whether selected states report that these provisions
                  provide incentives to make records available to the Federal Bureau of
                  Investigation (FBI), and
              •   states are providing a means for individuals with a precluding mental
                  health adjudication or commitment to seek relief from the associated
                  federal firearm prohibition.

              To determine state progress in providing mental health and unlawful drug
              use records, we analyzed FBI data from fiscal years 2004 through 2011—
              about 4 years before and after the enactment of NIAA—on the number of
              such records that states made available for NICS background checks and
              on the number of gun purchase denials based on these records. To
              assess the reliability of these data, we questioned knowledgeable officials
              about the data and the systems that produced the data, reviewed relevant
              documentation, examined data for obvious errors, and (when possible)
              corroborated the data among the different agencies, including the Bureau
              of Justice Statistics (BJS) and the FBI’s NICS Section. We determined
              that the data were sufficiently reliable for the purposes of this report.

              To assess the extent to which DOJ is providing assistance to help states
              overcome challenges in sharing records, we reviewed guidance DOJ
              provided to states and attended a DOJ-hosted regional conference on the
              NIAA held in December 2011 in DuPont, Washington. Additionally, we
              analyzed all NICS Act Record Improvement Program (NARIP) grant
              applications to identify any limitations that states reported facing when
              providing records and the amount of funding states believed were
              necessary to overcome these limitations. We analyzed grant applications
              from 2009, 2010, and 2011—funded and unfunded—submitted by states,
              territories, and tribal entities. From this, we were able to identify areas of
              need for which 28 states, territories, and tribal entities requested funding.



              Page 39                              GAO-12-684 NICS Improvement Amendments Act
Appendix I: Objectives, Scope, and
Methodology




To assess the accuracy of mental health and unlawful drug use records
made available for NICS checks, we analyzed the most recent round of
triennial audits conducted by the FBI’s Criminal Justice Information
Services (CJIS) Audit Unit and the most recent set of proactive validation
processes completed by the states. The most recent set of proactive
validation processes involved 23 states and occurred from October 2010
through September 2011, and the audits were conducted in 42 states
from 2008 through 2011.

Further, we interviewed officials from a nonprobability sample of 6 states
to discuss any challenges they faced in sharing mental health and
unlawful drug use records and their experiences with DOJ assistance
received to address those challenges. The states selected were Idaho,
Minnesota, New Mexico, New York, Texas, and Washington. We selected
these states to reflect a range of factors, including the number of mental
health records and unlawful drug use records made available for NICS
checks, trends in making mental health records available to NICS over
the past 3 years, whether the state received a grant under the NIAA, and
whether the state has provided a state record estimate to the Bureau of
Justice Statistics. While the results of these interviews cannot be
generalized to all states, they provided insight into state challenges and
state experience addressing those challenges. We also interviewed
officials from various DOJ components with responsibility for managing
and maintaining NICS records, which included the Bureau of Justice
Statistics and the FBI’s CJIS division and NICS Section. We interviewed
these officials to determine, among other things, the progress states
made submitting mental health and unlawful drug use records, challenges
states face in doing so, and the forms of assistance DOJ is providing to
help states address these challenges.

To determine the extent to which DOJ has administered the reward and
penalty provisions of the act and whether these provisions provide
incentives for state efforts to share records, we reviewed copies of state
record estimates for 2009, 2010, and 2011 and analyzed two reports from
the National Center for State Courts evaluating these estimates. We
interviewed center officials about, among other things, the scope,
methodology, and findings of the reports. We determined that the scope
and methodology were sufficient for us to rely on the results. We also
interviewed officials from the 6 states in our sample regarding (1) their
incentives to make the requested records available to the FBI; (2) the
extent to which the reward and penalty provisions of the act have
incentivized their efforts; (3) their thoughts on whether the reward and
penalty provisions would change their actions if they were carried out by


Page 40                              GAO-12-684 NICS Improvement Amendments Act
Appendix I: Objectives, Scope, and
Methodology




DOJ; (4) if the current reward and penalty provisions do not provide
incentives, what would; and (5) the impact, if any, of DOJ not carrying out
the reward and penalty provisions. We also interviewed the Bureau of
Justice Statistics about its efforts to administer the reward and penalty
provisions provided for in the act and the basis for its decisions.
Additionally, we discussed the Bureau of Justice Statistics’ position on the
process for completing the state record estimates, challenges therein,
and the effect of the act’s reward and penalty provisions on record
sharing. Further, we interviewed officials with the National Center for
State Courts and the National Consortium for Justice Information and
Statistics (SEARCH) who were responsible for collecting state record
estimates and evaluating their reasonableness. From these interviews,
we learned more about the reasonableness of the estimates, changes to
the estimate methodology over time, and next steps for the estimates.

To determine the extent to which states are providing a means for
individuals with a precluding mental health adjudication or commitment to
seek relief from the associated federal firearms prohibition, we reviewed
documentation on the minimum criteria for certification of a relief from
disabilities program and the relief program requirements detailed in the
NIAA. We also reviewed examples of state statutes that established relief
from disability programs. Further, we interviewed officials in each of the
16 states with approved relief from disability programs as of May 2012 to
learn about the challenges they faced developing their programs,
motivation for developing the program, federal assistance they received,
and information on the number of relief applicants to date, including how
many applications had been received, approved, denied, or dismissed. 1
We also relied on data collected through interviews with the previously
mentioned 6 sample states, the Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF), and other DOJ components to learn about, among
other things, the motivation to establish relief programs, barriers to doing
so, and DOJ resources available to help states. Three of the 6 states in
our sample did not have certified relief from disability programs, and we
asked officials in these states why they had not pursued developing a
relief program; what barriers there were to establishing a relief program;
and what, if any, federal assistance they would like for establishing a
relief program. Additionally, we interviewed groups with an interest in



1
 In June 2012, 3 additional states received certification of their relief from disabilities
programs. We did not interview officials in these states.




Page 41                                       GAO-12-684 NICS Improvement Amendments Act
Appendix I: Objectives, Scope, and
Methodology




relief from disability programs and NICS data more broadly, including the
Brady Campaign, Gun Owners of America, Mayors Against Illegal Guns,
and the National Rifle Association. We interviewed these groups to learn
their positions on relief from disability programs, among other things.




Page 42                              GAO-12-684 NICS Improvement Amendments Act
Appendix II: State Options for Conducting
              Appendix II: State Options for Conducting
              Background Checks using the National Instant
              Criminal Background Check System


Background Checks using the National
Instant Criminal Background Check System
              States have three options for conducting NICS checks, referred to as full
              point of contact (full POC), non-POC, and partial POC. As detailed in a
              2008 report funded by DOJ, in full-POC states, Federal Firearms
              Licensees first query the NICS databases and related state files through
              one or more state organizations, such as local or state law enforcement
              agencies—known as points of contact—and then, if necessary, the staff
              of the POCs carry out any required follow-up research. 1 In non-POC
              states, Federal Firearm Licensees contact the NICS Operations Center
              directly by telephone or via the Internet and any required follow-up
              research is performed by the NICS’s FBI staff. In partial POC states,
              Federal Firearm Licensees query NICS and state files through a point of
              contact for handgun purchases or permits but query NICS directly for long
              gun purchases, such as shotguns or rifles. Figure 2 shows the distribution
              of POC states, partial-POC, and non-POC states.




              1
               J. M. Tien, et. al, Cost-Benefit of Point-of-Contact (POC) Versus Non-POC Firearm
              Eligibility Background Checks, 2001-RU-BX-K002 (2008)




              Page 43                                   GAO-12-684 NICS Improvement Amendments Act
                                         Appendix II: State Options for Conducting
                                         Background Checks using the National Instant
                                         Criminal Background Check System




Figure 2: Point of Contact States as of October 2011




                                         According to the DOJ-funded report, states elect POC or non-POC status
                                         for various reasons, such as a state’s attitude toward gun ownership,
                                         since many POC states have prohibiting legislation that is stricter than
                                         federal regulations. For example, Oregon has five statutorily prohibiting
                                         categories of misdemeanor convictions in addition to domestic violence—
                                         which is the only prohibiting misdemeanor required under federal law.
                                         Additionally, there may be an economic incentive for states to elect non-
                                         POC status, since implementing and operating a POC may cost a state
                                         more money than it can collect in fees charged to Federal Firearm
                                         Licensees for conducting background checks. For example, the authors


                                         Page 44                                   GAO-12-684 NICS Improvement Amendments Act
Appendix II: State Options for Conducting
Background Checks using the National Instant
Criminal Background Check System




reported that Idaho elected not to become a full-POC state because of
the added expense of performing background checks for long gun
purchases.




Page 45                                   GAO-12-684 NICS Improvement Amendments Act
Appendix III: Minimum Criteria for
               Appendix III: Minimum Criteria for Certification
               of Qualifying State Relief from Disabilities
               Programs


Certification of Qualifying State Relief from
Disabilities Programs
               ATF provides guidance for states to follow in certifying that they have
               established a qualifying mental health relief from firearms disabilities
               program that satisfies certain minimum criteria under the NIAA. ATF
               officials said that they review states’ programs according to the following
               minimum criteria.

               1. State law: The relief program has been established by state statute, or
                  administrative regulation or order pursuant to state law.

               2. Application: The relief program allows a person who has been
                  formally adjudicated as a “mental defective” 1 or committed
                  involuntarily to a mental institution 2 to apply or petition for relief from
                  the Federal firearms prohibitions (disabilities) imposed under 18
                  U.S.C. § 922 (d) (4) and (g) (4).

               3. Lawful authority: A state court, board, commission, or other lawful
                  authority (per state law) considers the applicant’s petition for relief.
                  The lawful authority may only consider applications for relief due to
                  mental health adjudications or commitments that occurred in the
                  applicant state.

               4. Due process: The petition for relief is considered by the lawful
                  authority in accordance with principles of due process, as follows:
                  a. The applicant has the opportunity to submit his or her own
                     evidence to the lawful authority considering the relief application.

                   b. An independent decision maker—someone other than the
                      individual who gathered the evidence for the lawful authority
                      acting on the application—reviews the evidence.


               1
                Federal regulations at 27 C.F.R. § 478.11 define the term “adjudicated as a mental
               defective” as a determination by a court, board, commission, or other lawful authority that
               a person, as a result of marked subnormal intelligence, or mental illness, incompetency,
               condition, or disease: (1) is a danger to himself or others; or (2) lacks the mental capacity
               to contract or manage his own affairs. The terms shall include—(1) a finding of insanity by
               a court in a criminal case; and (2) those persons found incompetent to stand trial or found
               not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the
               Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.
               2
                Federal regulations at 27 C.F.R. § 478.11 define the term “committed to a mental
               institution” as a formal commitment of a person to a mental institution by a court, board,
               commission, or other lawful authority. The term includes commitments for other reasons,
               such as for drug use. The term does not include a person in a mental institution for
               observation or a voluntary admission to a mental institution.




               Page 46                                       GAO-12-684 NICS Improvement Amendments Act
Appendix III: Minimum Criteria for Certification
of Qualifying State Relief from Disabilities
Programs




    c. A record of the matter is created and maintained for review.

5. Proper record: In determining whether to grant relief, the lawful
   authority receives evidence concerning and considers the:
   a. Circumstances regarding the firearms disabilities imposed by 18
      U.S.C. § 922 (g) (4);

    b. Applicant’s record, which must include, at a minimum, the
       applicant’s mental health and criminal history records; and

    c. Applicant’s reputation, developed, at a minimum, through
       character witness statements, testimony, or other character
       evidence.

6. Proper findings: In granting relief, the lawful authority issues findings
   that:
   a. The applicant will not be likely to act in a manner dangerous to
       public safety; and

    b. Granting the relief will not be contrary to the public interest.

7. De novo judicial review of a denial: The state provides for the de novo
   judicial review of relief application denials that includes the following
   principles:
   a. If relief is denied, the applicant may petition the state court of
       appropriate jurisdiction to review the denial, including the record of
       the denying court, board, commission or other lawful authority.

    b. In cases of denial by a lawful authority other than a state court, the
       reviewing court as the discretion to receive additional evidence
       necessary to conduct an adequate review.

    c. Judicial review is de novo in that the reviewing court may, but is
       not required to, give deference to the decision of the lawful
       authority that denied the application for relief.

8. Required updates to state and federal records: Pursuant to § 102(c) of
   the NIAA, the state, on being made aware that the basis under which
   the record was made available does not apply, or no longer applies:
   a. Updates, corrects, modifies, or removes the record from any
       database that the federal or state government maintains and
       makes available to NICS, consistent with the rules pertaining to
       the database; and



Page 47                                       GAO-12-684 NICS Improvement Amendments Act
Appendix III: Minimum Criteria for Certification
of Qualifying State Relief from Disabilities
Programs




    b. Notifies the Attorney General that such basis no longer applies so
       that the record system in which the record is maintained is kept up
       to date.

9. Recommended procedure: It is recommended (not required) that the
   state have a written procedure (e.g., state law, regulation, or
   administrative order) to address the update requirements.




Page 48                                       GAO-12-684 NICS Improvement Amendments Act
Appendix IV: Federal and State Efforts to
                                 Appendix IV: Federal and State Efforts to
                                 Ensure the Accuracy and Timeliness of
                                 Records Used by the National Instant Criminal


Ensure the Accuracy and Timeliness of
                                 Background Check System




Records Used by the National Instant
Criminal Background Check System
Accuracy                         Under DOJ regulations, the FBI is to be responsible for validating and
                                 maintaining data integrity of records in NICS—including mental health
                                 and unlawful drug use records—and does so through triennial on-site
                                 audits and proactive validation processes in each state that uses or
                                 contributes to the NICS Index. According to officials from the FBI’s CJIS
                                 Division, the CJIS Audit Unit conducts the on-site audits every 3 years
                                 and the validation processes are held between each audit. The CJIS
                                 officials explained that the two other databases searched during a NICS
                                 background check—the Interstate Identification Index (III) and National
                                 Crime Information Center (NCIC)—are also audited by the CJIS Audit
                                 Unit as part of its audit processes. In addition to DOJ’s efforts, several of
                                 the states in our sample reported having their own processes in place to
                                 ensure the accuracy of records they make available for NICS checks.

FBI Triennial Audits and         During on-site triennial audits, the CJIS Audit Unit reports that it examines
Proactive Validation Processes   a random sample of NICS Index records for accuracy, validity, and
                                 completeness through a review of documentation used to make the entry
                                 into the database. According to CJIS officials, the accuracy of a record is
                                 assessed by identifying errors in biographical information contained within
                                 a record (e.g., name or date of birth). Further, validity is ensured by
                                 determining if there is proper documentation to support the entry of the
                                 record into the NICS Index. CJIS officials cited that the completeness
                                 review is used by the Audit Unit to notify states if there is additional
                                 information that could be captured in their records to increase the
                                 likelihood of finding records of individuals prohibited from receiving or
                                 possessing a firearm within the database. According to CJIS officials,
                                 CJIS Audit Unit auditors make a determination of compliance in the areas
                                 of validity and accuracy based on a percentage of total records reviewed.
                                 At the close of each audit, the CJIS officials cited that the Audit Unit
                                 provides recommendations if there were any findings, as well as follow-up
                                 guidance, training, and assistance to the state.

                                 According to DOJ, approximately 7,100 NICS Index records from 42
                                 states were reviewed in the most recent round of triennial audits. 1 DOJ


                                 1
                                  FBI officials stated that they could not disaggregate the audit findings for each prohibitor
                                 because they purge any documentation of records reviewed and errors found in each
                                 category by the end of the audit because of legal implications of keeping these records in
                                 an invalid form. Therefore, the only documentation of results the FBI maintains following
                                 an audit is the aggregate findings documented within each state audit report.




                                 Page 49                                     GAO-12-684 NICS Improvement Amendments Act
                          Appendix IV: Federal and State Efforts to
                          Ensure the Accuracy and Timeliness of
                          Records Used by the National Instant Criminal
                          Background Check System




                          officials noted that none of the states were found to be out of compliance,
                          but 6 states were found to have records where CJIS could not determine
                          whether the records were appropriate for entry into the NICS Index. For
                          example, the CJIS auditors could not determine whether some mental
                          health records were from voluntary or involuntary commitments, which is
                          important, since only involuntary commitments would be eligible for
                          submission to the NICS Index. Additionally, several mental health records
                          were found inappropriate for entry into the NICS Index because they
                          belonged to deceased individuals. According to DOJ officials, there were
                          no findings in the most recent round of triennial audits explicitly
                          associated with unlawful drug use records. Officials noted that the
                          unlawful drug use category has very few records overall and is the fourth
                          lowest contributing category of the NICS Index.

                          During a “proactive validation process,” CJIS officials reported that they
                          ask states to validate their records in a manner similar to the way the
                          CJIS Audit Unit conducts the triennial audits. The FBI NICS Section
                          reported that it provides the state with a random sample of NICS Index
                          records to validate and expects the state to examine these records’
                          documentation for accuracy, completeness, and validity. NICS Section
                          does not make any assessments of compliance during the proactive
                          validation process and it does not review any documentation used to
                          validate the sample of records.

                          In the most recent set of proactive validation processes (October 2010
                          through September 2011), 13,418 records were validated by 23 states
                          and 1,914 records were reported by states to be invalid, resulting in an
                          85.74 percent validity rate. Of the 23 states that conducted these
                          processes, 16 states examined records made available to the NICS
                          Index’s Mental Health file and 2 states examined records provided to the
                          Controlled Substance file. 2 As with the triennial audits, however, the FBI
                          could not disaggregate the audit findings for each prohibitor.

State Efforts to Ensure   In addition to DOJ’s audits, 2 of the states in our sample reported taking
Accuracy                  additional steps to ensure the accuracy of the mental health and unlawful
                          drug use records they make available for NICS checks. For example,
                          Texas Department of Public Safety officials reported that the Texas State


                          2
                           According to NICS Section officials, the NICS Index’s Denied Persons file may also
                          contain mental health records, among other records of individuals federally prohibited from
                          purchasing a firearm.




                          Page 50                                    GAO-12-684 NICS Improvement Amendments Act
             Appendix IV: Federal and State Efforts to
             Ensure the Accuracy and Timeliness of
             Records Used by the National Instant Criminal
             Background Check System




             Auditor’s Office conducts audits of the department’s criminal history
             records, including unlawful drug use records, every 5 years. Additionally,
             New Mexico officials cited the use of fingerprinting technology to
             automate and ensure the quality of fingerprints for criminal unlawful drug
             use records. None of the states in our sample has similar checks for
             accuracy in place for mental health records, but Idaho state officials noted
             that Idaho plans to conduct spot checks for accuracy on mental health
             records, similar to those currently done on criminal history records, once it
             uploads its first batch of these records to NICS.

Timeliness   DOJ does not set goals for states regarding the timeliness of when the
             state makes records, including mental health and unlawful drug use
             records, available to the NICS Index because officials said it is the
             responsibility of states to set their own goals in this area. According to the
             FBI’s NICS Section officials, the NIAA does not specify any timeliness
             goals for states and the sharing of state records to the NICS Index is
             entirely voluntary. Therefore, the NICS Section neither tracks how quickly
             states are making records available to the NICS Index nor provides any
             guidance regarding time frames between a precluding incident (e.g.,
             involuntary commitment or a failed drug test) and when a NICS Index
             record should be made available. NICS Section officials also explained
             that some states are focused on older records that, if made available to
             the FBI, would preclude an individual from purchasing a gun today.
             Although these records may date back 20 years, the NICS Section
             officials view these states’ contributions as a positive effort and not a
             shortcoming.

             Some states have reported setting goals or statutory requirements for
             record timeliness. For example, 4 of the 6 sample states noted having
             state-specific timeliness requirements for the submission of mental health
             records. Texas and Washington state officials reported having statutory
             requirements to making mental health records available to the FBI
             ranging from 3 to 30 days. Idaho and Minnesota cited requirements that
             county clerks submit prohibiting mental health records to state
             repositories as quickly as they can upon completion of the hearing or “as
             soon as is practicable.” With regard to unlawful drug use records, 2 states
             reported having state-specific time frames for the submission of arrest
             records to the state repository (10-day time frame in Idaho and 1-day time
             frame in Minnesota).




             Page 51                                    GAO-12-684 NICS Improvement Amendments Act
Appendix V: Comments from the Department
             Appendix V: Comments from the Department
             of Justice



of Justice




             Page 52                                GAO-12-684 NICS Improvement Amendments Act
Appendix V: Comments from the Department
of Justice




Page 53                                GAO-12-684 NICS Improvement Amendments Act
Appendix V: Comments from the Department
of Justice




Page 54                                GAO-12-684 NICS Improvement Amendments Act
Appendix VI: GAO Contacts and Staff
                  Appendix VI: GAO Contacts and Staff
                  Acknowledgments



Acknowledgments

                  Carol Cha, (202) 512-4456 or chac@gao.gov
GAO Contacts
                  Eileen Larence, (202) 512-6510 or larencee@gao.gov


                  In addition to the contacts above, Eric Erdman (Assistant Director),
Staff             Claudia Becker, Tina Cheng, Katherine Davis, Michele Fejfar, Charlotte
Acknowledgments   Gamble, Geoffrey Hamilton, Lara Miklozek, Christine Ramos, and David
                  Schneider made key contributions to this report.




(441000)
                  Page 55                               GAO-12-684 NICS Improvement Amendments Act
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