Comments on the NIAA State Estimates Collection Form
Contents |
Page |
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I. |
General Comments on the Information Collection |
1 |
II. |
Comments Relating to Specific Record Categories |
6 |
III. |
Comments specific to the Federal Register Notice Questions Recommendations to Enhance the Quality, Utility, and Clarity of Information to be Collected Efforts to Minimize the Burden Necessity of Information to Meet NICS Act Requirements and Practicability of Information |
18 |
List of Entities That Submitted Comments: CA - Judicial Council of California FL - Florida Department of Law Enforcement HI - Hawaii Criminal Justice Data Center KS - Kansas Bureau of Investigation LA - Louisiana Commission on Law Enforcement and Administration of Criminal Justice MI - Michigan State Police MN- Minnesota Department of Public Safety, Bureau of Criminal Apprehension MO - Missouri: State Highway Patrol, Office of State Courts Administrator, and Office of Prosecution Services NV- Nevada Department of Public Safety NY- New York Division of Criminal Justice Services RI - Rhode Island Attorney General SEARCH - The National Consortium for Justice Information and Statistics UT - Utah Department of Public Safety WA - Washington Justice Information Network |
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I. General Comments on the Information Collection
The Availability of Records for the Full Twenty-Year Period Will be An Issue for Some States
CA - 20 years of data collection is problematic for the courts. The
state currently has 75 court case management systems and some are
able to provide 20 years of electronic data, but many (perhaps most)
cannot. Data collection from manual records would be prohibitively
time consuming. Additionally, due to the nature of the legacy
systems and their level and source for support, not all courts will
be able to provide data. The CA DOJ, with some work, will be able to
provide the 20 years of data. Working collaboratively, the state
should be able to meet the 20 year requirement if it is acceptable
that the source data from the courts will be less than 20 years and
may not include all 58 Superior Courts.
Response: None.
NV - The state would be able to provide wants/warrants data and
felony arrest data within the 20 year timeframe, but some
disposition/conviction information would be missing. Additionally,
the state has a database for domestic violence protection orders but
not stalking or harassment orders. The criminal history record does
not include indictments and no mental health record information
could be provided. Nevada does not have electronic court records, or
complete criminal history records for the last 20 years and cannot
identify an obvious way to provide non-overlapping
information.
Response: None.
FL – The focus should be on data available electronically that
meets the NICS requirement. The number of records maintained by an
agency does not ensure accessibility of the information in the
electronic format or in a timely manner. The older the data
requested, the harder the data will be to retrieve in a manner that
meets the needs of the NICS program. Florida asserts that it is more
important to identify the estimated number of records that are
available for electronic retrieval and inclusion in automated
systems. Also, FL recommends using the State Repository to the
maximum extent possible. The FL State Repository has collected and
maintained arrest and conviction records since the early 1970s, and
arrest records date to the early 1900s. At the local level,
misdemeanor arrests and convictions are only required to be
maintained for a period of 5 years. The state repository would be in
a better position to provide the number of actual records available
in this instance.
Response: As the Information
Collection form indicates, it is expected that state agency
executives, judicial agencies, and other entities will need to
collaborate in developing the estimates required to complete this
form. In some cases, a state court may have information about
events in a certain time period that are only in a paper or manual
format, or may have destroyed the records pursuant to a record
retention policy, while a police agency or prosecutor’s office
may have electronic records about those events during that time
period, or may have provided the information to the state central
record repository. Collaboration between these agencies can assist
in developing a more complete and informative estimate.
HI - The central repository may have significantly more information;
the repository cannot assess what is available at the Courts and
Prosecutors, especially with a 20-year timeframe. Many of the
records are already archived meaning manual effort will be required
for retrieval. While the central repository has records for all
convictions in the state, it is stored as individual charges, so it
will be problematic to report on “unique records of the
events” as defined.
Response: None.
KS - Court dispositions are most commonly reported to the central
repository by prosecutors, not the courts. The Courts have
determined that their office would not be able to provide any of the
requested statistics in any of the 7 prohibited categories. There
are over 400 arresting agencies in the state and about that many
prosecutors’ offices. Every attempt will be made to obtain the
information from the local agencies, but significant participation
from the local level is unlikely due to lack of resources. The only
way to ensure reasonable compliance from local agencies would be to
pass a state statute requiring that the information be submitted to
the central repository.
MO - The Supreme Court of MO allows courts to destroy misdemeanor
and relevant municipal case files 12 years after conviction or 3
years after dismissal and therefore many of the older records would
not be covered by the definition of 'available.' Prosecutor
Response: The records retention schedule provided by the
Missouri Secretary of State provides that records of misdemeanor
cases be retained 10 years. Cases that result in a deferred
prosecution must be retained for 5 years. Records that have not
been retained by prosecutors will obviously not be available. In
addition, there are few, if any, prosecutors that have electronic
information that dates back to 1988. Those prosecutors who have
historical data in electronic form will likely be able to provide
some of the information requested. Prosecutors who have paper
records only would not, as a practical matter, be able to provide
the information requested.
Response: None.
RI - There are 39 law enforcement departments in the state. The
records are created at the police departments and are electronically
forwarded to the state repository via livescan and forwarded to the
courts via an interface. From the state repository the arrests are
electronically forwarded to NCIC along with the Protective Orders.
Records are disposed of by a disposition of the case, which is
electronically sent from the courts to the state repository.
Expungement orders are sent (not electronically) to the state
repository from the courts and are manually expunged into an
expunged file from the state repository. A list of expunged records
is then faxed to NCIC. The disposition interface from the courts to
the repository is not 100% operational. Grant funds are currently
being used to fix the disposition interface.
Response:
None.
SEARCH – There are several factors that will influence
responses to the information collection, including local justice
agencies that: (a) have limited reporting capacity due to crude
paper-based record management systems and virtually no technology;
and (b) installed record management systems in the last 5 to 7 years
that have few records available before that time. The survey also
seeks to obtain the number of individual criminal history records
maintained at both the state repository and at the local justice
entity. This could prove difficult given the lack of central
clearinghouses for some of these agencies in many states. While some
states may have a unified court system from which a single entity
could report the requested information, others do not. Collecting
information from every local court jurisdiction could be a
time-consuming process, particularly when covering a 20-year period.
Older court documents may be in paper format, maintained off-site,
or in some other condition that does not lend itself to easy
retrieval and reporting. The same difficulty can be applied to
obtaining information from local law enforcement
agencies.
Response: None.
UT - The state believes it can comply with the survey but does have
some questions/concerns about the ability to get some of the
statistical information. Prosecutors generally keep
information for only two or three years. District court has
information from about 1989; misdemeanors are then purged and
felonies are sent to the archives.
Response:
None.
The
Validity and Reliability of Estimates Will Be Impacted by the Number
of Source Agencies and Span of 20 Years in Some States
FL - Several factors will impact the validity and reliability of the
estimates. One factor is the level of automation of each agency from
which information will be collected. In Florida, there are 3 state
agencies, 1 state association, 67 county sheriffs, 67 court clerks,
20 state attorneys and over 340 local municipal agencies that
maintain criminal justice information, none of which houses all the
requested data. Each of these agencies has its own records
management process and its own record retention policy. The
requirement to estimate the number of records over a 20 year span
introduces the potential for tremendous variation and error.
Response: None.
State
to State Estimates Will Not Be Comparable
FL - Due to the variations in political structures, data systems,
and state laws, each state will need to create its own methodologies
for estimation and use different resources to establish estimates
for each of the requested datasets. The different methodologies and
resources will most likely result in estimates that are not truly
comparable from state to state. It will be difficult to allocate
grant funds fairly using these estimates.
Response:
As the Information Collection form acknowledges, the state’s
assessment of record availability will undoubtedly involve several
considerations, including what agencies or entities originate the
records, the number of these agencies, the number of available
records, the format of the records, and how long agencies may retain
such records. The reporting form solicits some information about
these issues in an effort to help guide the state’s
development of record estimates. This information may also help
states formulate record improvement plans and could be useful in
evaluating whether eventual grant proposals satisfy the authorized
uses for funds. Because each state’s record system is unique,
the reporting form calls for a narrative description of how records
on the relevant events are maintained in the state. It also calls
for an explanation of the approach taken in using these information
sources to develop the estimates. This part of the form is also the
place where an explanation should be provided for any missing data
or failure to provide breakdowns of the estimates as requested. The
narrative will be used by the Attorney General as a basis for
evaluating the reasonableness of the estimates, as required under
the Act.
Estimates
Will Not Reflect Accessible Data
FL - Instructions say that states will not need to assess whether an
individual has NICS disqualifiers, but determining if missing
records are “available” requires deciding if they
contain the minimum data needed for entry into automated systems.
Estimates can approximate the number of records that exist for each
of the defined categories. This will not ensure that these records
will be accessible. Analysis of records held by originating agencies
to determine if they contain the necessary data will be
overwhelming. Many states, including Florida, have been working not
only to improve the volume and quality of data that are maintained
in the state’s repository, but also have worked on collecting
historical information.
Response: None.
Dual
Certification on the Form is Unnecessary
HI – The state does not agree that a dual certification is
necessary by the Courts and the NCHIP designee. Data gathering
involves the Prosecuting Attorney Offices as well as the courts. The
state recommends requesting a letter of support from the Courts
and/or Prosecutors as is done with NCHIP grant applications.
Response: As the Information Collection indicates, it
is expected that state agency executives, judicial agencies, and
other entities will need to collaborate in developing the estimates
required to complete this form. In some cases, a state court may
have information about events in a certain time period that are only
in a paper or manual format, or may have destroyed the records
pursuant to a record retention policy, while a police agency or
prosecutor’s office may have electronic records about those
events during that time period, or may have provided the information
to the state central record repository. Collaboration between these
agencies can assist in developing a more complete and informative
estimate. For these reasons, this form requires a certification that
such collaboration has occurred to be signed by both the state’s
NCHIP grant administering agency and the State Court Administrator.
Some Definitions are Unclear or Problematic
MO - The courts have a concern with the definition of “conviction.”
This does not appear to be a complete definition of an actual
conviction, but rather how the number of charges associated with a
case is treated. In Missouri, a suspended imposition of sentence
disposition is not considered a conviction. Convictions are
considered to be judgments with a sentence imposed. This could be
spelled out more clearly in the definition. Under Missouri law the
definition of conviction only includes judgments which include a
fine or imprisonment. If the purpose is to include cases in which
the defendant was found guilty or pleaded guilt, the definition of
conviction could be modified as follows: “Conviction” –
A Court’s Judgment and Conviction Order, reflecting a finding
of guilt or a plea of guilty, whether it involves multiple counts or
a single count, represents a “conviction.” Example: When
a defendant’s criminal court case results in a finding of
guilt or a plea of guilty on separate charges of burglary, assault,
and armed robbery, it should be counted as one conviction.”
Response: What constitutes a conviction is
determined by the law of the jurisdiction in which the proceedings
were held. The definition of conviction has been modified to include
the phrase, “reflecting a finding of guilt or a plea of
guilty.”
NY – The definition section should either delineate the
minimum data required to be deemed a record for NICS purposes or
cross-reference to a document that would clearly and concisely
provide that information.
Response: The FBI’s
NICS Section can provide information regarding minimal data
requirements for records to be entered into systems utilized by the
NICS.
The Information Collection Should be Replaced with a Requirement for a State Plan
NV –
The state suggests rather than having each state complete an
intensive survey that could be inconclusive at best, BJS should
consider asking states how they plan to comply with the Act with
authorized grant funds.
Response: The record
estimates are specifically required under the NICS legislation (Sec.
102(b)).
II. Comments Relating to Specific Record Categories
Category
1 – Felony Convictions
KS - The repository is able to provide some of the requested
conviction information covering an 18 year period (automated records
go back 18 years only). The repository does not have court
dispositions attached for every arrest during that
period.
Response: None.
MO - Repository Response: All MO records in this category
will be felony convictions; no misdemeanor information will be
included. Due to the definition of conviction, Suspended Imposition
of Sentence information will not be included either. Courts
Response: In Missouri all of the records will be felony records,
there are no misdemeanor charges that are punishable by more than 2
years (one year is the maximum imprisonment for a misdemeanor in
MO). Therefore category one reporting will be primarily from the
repository. The local court files for felonies must be retained for
over 20 years in either paper or microfilm, so with some effort
missing felony convictions can be found.
Response:
None.
RI - The state repository does not flag felony
convictions.
Response: None.
Category
2 – Indictments/Informations/Verified Complaints
CA - The intent of the term “returned” versus “filed”
indictment/information is not clear. Is returned the decision of the
charging authority to not file, or are they intended to be
synonymous?
Response: The terms are intended to
be synonymous. The information collection has been modified to
reflect this relationship between the terms.
FL – Recommend limiting Indictments, Information, and Verified
Complaints to a snapshot as of December 31, 2007. The practical
utility of data covering 20-year period is limited for indictments,
information, and verified complaints. These are records of a status,
like warrants and protection orders, which is transient.
Response:
The information collection has been modified
to request estimates for “active”
indictments, informations, and verified complaints as of a date
certain. A definition for “active” has also been added.
KS - The repository cannot provide information on indictments,
informations returned, or verified complaints because prosecutors
don’t report this information to the central repository. The
repository only receives information after the court action has been
completed or the case has been declined or diverted. This
information can only be supplied retroactively, but it would not be
current or complete due to the time lag in receiving the final court
disposition.
Response: None.
MI - No statewide database for indictments or informations exists,
so it may be difficult to obtain. The state would like a clearer
definition of what information is needed regarding indictments and
informations. The state may only be able to provide the number of
records with charges after arrest where a conviction is
pending.
Response: None.
MN - The timeframe in Category 2 does not make sense. An individual
who is currently under indictment, information, or verified
complaint is ineligible to possess a firearm. It would be more
reasonable to know the number of “active” or current
records meeting these criteria and on a specific date rather than
over a 20 year period, as the charge may have resulted in a
conviction (presumably counted in Category 1 or a non-conviction
(outside the scope).
Response: The information
collection has been modified to request estimates for “active”
indictments, informations, and verified complaints as of a date
certain. A definition for “active” has also been added.
MO - Repository Response: The State repository does not
differentiate between indictments, informations, or criminal
complaints. Because of this, the only information the state
repository will be able to provide is the number of charges filed
that is still pending during the period covered. Court Response:
Missouri is a unified court system, so prosecutor's (soon to be
courts) report to the repository when the felony is initiated either
by 'complaint (the process before an information is filed) or by
indictment. If the defendant has been fingerprinted (and some have
not due to being at large) then the records for those with pending
felony actions will be in the repository. If the defendant is at
large, the record would be reported in the Category 3 reporting, so
we agree with the definition and survey instrument for Category 2.
Prosecutor Response: All Complaints, Informations, and
Indictments are filed by prosecutors with the Court. While those
prosecutors with case management systems will have some electronic
record of the filing of such documents, so will the Court system,
which will also have an electronic record of filings by prosecutors
without case management systems. As mentioned above, the Courts
should be able to provide estimates of persons under indictment or
charged by complaint or information for the crimes described in
Category 1.
Response: None.
NY - In New York, indictments and informations are both collected,
but the electronic records do not distinguish between indictments
and informations prior to 5 years ago. The estimate would reflect
both indictments and informations as one category prior to
2003.
Response: None.
RI - The AG’s Office can give information on indictments
returned or filed, informations returned or filed, and criminal
complaints issued or verified by a prosecutor.
Category
3 – Active Wants/Warrants
HI - Hawaii does not have a central repository of wants/warrants.
Would the “number of records in the state repository” be
0? The repository is unsure whether the courts have their warrants
information stored in such a way that count can be obtained. The
police department may be a better source for this information.
Response: Yes, in this case, the estimated number of
records in the state repository would be zero.
KS - Kansas has a Misdemeanor Wants and Warrants file and can
provide the requested number of records in the state repository for
this part of the survey.
Response: None.
MO - Repository Response: Due to the structure of the warrant
database, a “snapshot” of a particular period may not be
possible. Access to real time information only. Court Response.
Missouri courts send all warrants for entry into Missouri State
Highway Patrol's wanted person system. Missouri is currently
programming an electronic warrant interchange between MSHP and the
courts that should improve the ability to keep the court and MSHP
repository in sync. At this time there are a limited number of
discrepancies, but after the automated interchange is in place, the
exact discrepancies should be known and, therefore have no issue
with Category 3 definition or the survey instrument.
Response:
The information collection form acknowledges that the state’s
assessment of record availability will undoubtedly involve several
considerations, including what agencies or entities originate the
records, the number of these agencies, the number of available
records, the format of the records, and how long agencies may retain
such records. The reporting form solicits some information about
these issues in an effort to help guide the state’s
development of record estimates. Because each state’s record
system is unique, the reporting form calls for a narrative
description of how records on the relevant events are maintained in
the state. This part of the form is also the place where an
explanation should be provided for any missing data or failure to
provide breakdowns of the estimates as requested. The narrative
will be used by the Attorney General as a basis for evaluating the
reasonableness of the estimates, as required under the Act.
NY - The repository receives warrants from the courts, but also
maintains a statewide wanted system that is updated by the police
departments (the equivalent of the NCIC Wanted system). The
repository count may include records separately reported by the
courts.
Response: None.
RI - Warrants are not physically kept at the state repository. They
are issued at the courts and are electronically forwarded to the
State Police. The repository, while conducting a search on an
individual, will search the State Police’s database of
warrants and will return a message that there is a
warrant.
Response: None.
WA - The majority of record types are maintained and available
through electronic means. The two exceptions are active warrants and
protection orders. Both of these records are generated by local
courts and paper copies are distributed to the appropriate local law
enforcement agency. Each agency must manually enter the required
information to the state NCIC interface. Many of these court records
do not contain the minimum data required for entry into NCIC. Local
law enforcement records staff often conduct additional searches to
find the required information. Upon submission to the NCIC
interface, these agencies maintain a paper copy of the record for
validation purposes. Misdemeanor warrants are not submitted to NCIC
due to the excessive amount of time and resources it would require.
Current counts identify over 150,000 active misdemeanor warrants in
the state. The inclusion of misdemeanor warrants into NCIC will
increase the workload to local law enforcement agencies. Compliance
with the new NICS requirements will either necessitate significant
changes to the business process and technology infrastructure, or
increased staffing levels at law enforcement agencies.
Response:
None.
SEARCH - Processes for entering wants/warrants and protection orders
into state and national databases vary significantly from state to
state (even from jurisdiction to jurisdiction within states).
Attempting to quantify the number of these items in each state may
very well encounter the difficulties described above that can occur
when contacting local jurisdictions to request
information.
Response: None.
UT - The repository maintains the statewide warrant database, but
does not hold the records. Do you need the total number of records
that are housed in this file?
Response: Yes, the
estimate provided should reflect the number of such active records
in the file on the date indicated.
Category
4 – Unlawful Drug Use Records
FL – Recommend limiting misdemeanor drug data to a 5-Year
period. Per CFR Title 27 Part 478 Section 11 an “unlawful user
of or addicted to any controlled substance” is limited to
recent activity. The regulation, and subsequently the NICS User
Manual have limited the utility of the misdemeanor drug offense to a
5-year period.
Response: Please
note that in developing the record estimates, states are not
required to assess individual records to determine whether or not it
would disqualify an individual from the receipt of a firearm under
federal law. Rather, the form seeks estimates of the categories of
records typically used by the NICS and ATF in determining whether
available information demonstrates that a prospective purchaser is
prohibited from receiving a firearm. The
examples given in 27 C.F.R. 478.11, Unlawful User of or Addicted to
any Controlled Substance, are merely examples from which an
inference of unlawful use can be made and do not provide the
exclusive means to make this determination.
KS - The repository can provide the number of drug-related arrests,
convictions, and adjudications, but will have the same issues as
under Category 1. The automated records cover only an 18 year
period, and the repository does not have dispositions for every
arrest.
Response: None.
MI - Need further clarification. The state assumes that the
difference from what is accounted for under Category 1 for felony
records are drug-related cases that have been dismissed or have been
made non-public.
Response: For
the purposes of these record estimates, we are requesting only the
following: (1) the number of arrests and adjudications for felony
offenses (excludes convictions which have already been counted under
Category 1), and (2) the number of arrests, adjudications, and
convictions for all other drug offenses. This would include arrests
and convictions for misdemeanor drug offenses as well as felony drug
arrests. We need further clarification on what is meant by
“non-public” to address that portion of the comment.
MO - Repository Response: The State repository can provide
arrest, conviction, and adjudication information for the areas
covered. Since many adjudications covered such as pretrial
diversion, drug diversion, probation without judgment, etc. are not
usually specifically reported to the repository, the repository
would respond with any offense meeting the criteria that has any
form of prosecutor action on file. Court Response: All
felonies under the 'unlawful drug use' area would be reported under
Category 1, 2 or 3. However the misdemeanor and municipal charges
for drug use for 20 years will not be available. In Missouri there
are over 500 municipal courts (only a handful on the statewide trial
court case management system). Probably over 80% of the misdemeanor
and municipal charges in this category do not exist in the criminal
history repository and are not automated and the case file may not
exist. The number of 'arrests' where no charges were filed would be
more difficult to determine. Please consider limiting Category 4
cases to the same cases covered under Category 1; limiting only
those offenses that are punishable by over 1 year incarceration; and
C) changing the survey to electronically available, not just
available.
Response: As the information
indicates, Category 4 record estimates pertain to unlawful drug use
records. These records are defined as records that identify a
person unlawfully using or addicted to a controlled substance, as
demonstrated by specified arrests, convictions and adjudications,
not protected from disclosure to the Attorney General by federal or
state law. The term “arrests” means arrests for use or
possession of a controlled substance. “Adjudications”
include orders imposing: pretrial diversion, drug diversion,
probation without judgment, adjudication withheld, probation or
parole conditions or sentencing conditions which include mandatory
drug treatment programs. Importantly, the term “convictions”
refers to convictions for use or possession of a controlled
substance, which are not included in the estimates
of felony convictions included under Category 1.
As the form indicates, for the purposes of the record estimates,
only the following are requested: (1) the number of arrests and
adjudications for felony offenses (excludes convictions which have
already been counted under Category 1), and (2) the number of
arrests, adjudications, and convictions for all other drug offenses.
This is to avoid duplication with records identified in Category
1.
NY - New York does not have misdemeanors punishable by more than 2
years. The state records are not kept in a way to capture all the
definitions included within “adjudications.” If an
arrest record is sent that is later disposed in favor of the
defendant or pled to a non-criminal offense, and sealed, NY law
would require the record be sealed or expunged in the NICS system.
The state would not be counting appearance tickets as an arrest
under Category 4.
Response: None.
RI - The courts use codes in their system of NGBRI (Not Guilty by
Reason of Insanity) or NGLCR (Not Guilty Lack of Criminal
Responsibility) at the disposition level of a case. The courts also
use sentence types for Drug Program, DWI School or AAA Counseling.
These codes could be used to capture certain cases.
Response:
None.
Category
5 – Mental Health Adjudications or Commitments
CA - This is an important category and many court case management
systems on the civil side capture the fact that a disposition has
occurred but not necessarily what the specific mental health
disposition is (civil commitment case disposed, but not whether
commitment was ordered or not). Will the program support application
for funds to do manual sample-based data collection or other
strategies to obtain this data?
Response: Yes,
assuming funds are appropriated for the grant programs authorized by
the Act, the costs associated with collecting and analyzing data
needed to demonstrate levels of compliance with the Act would be
allowable.
HI - Availability of mental health treatment data continues to be a
challenge statutorily and also in an automated fashion. Since state
law prohibits sharing of this information, does the state have
anything to report for this category?
Response:
The State is asked to provide estimates of the number of records not
protected from disclosure to the Attorney General by federal or
state law. Therefore, if existing state law
prohibits sharing such information with the Attorney General, the
estimate(s) for such records would be zero.
KS - The repository will be able to provide the number of mental
health adjudications or commitments. The State District Court is the
only entity that makes mental health determinations.
Response:
None.
MI - Request clearer definition of Incompetency to Stand Trial and
Findings of Insanity by a court. Basic assumptions of each by state
– (1) Incompetency to Stand Trial means that some type of
mental health screening occurred where it was found that the
individual would not be tried in court; (2) Findings of Insanity are
instances where the person was found Guilty but Insane, or Not
Guilty by Reason of Insanity.
Response: The terms
Incompetent to Stand Trial and Finding of Insanity are not defined
in the Gun Control Act or its implementing regulations but should be
given their common meaning. Any state specific inquiries should be
directed to the Bureau of Alcohol, Tobacco, Firearms and Explosives.
MO - Repository Response: The repository will have limited
information on Mental Health Adjudications or Commitments. Reporting
is not possible on adjudications of mental defect, findings of
incompetency to stand trial, or formal involuntary commitments to a
mental institution. However, the repository would be able to report
limited information on findings of insanity by a court in a criminal
case. Court Response: Since Category 5 is limited to those
'electronically available' records, we are fine with this definition
and survey question.
Response: None.
NY - In NYS, persons can be involuntarily committed to a psychiatric
hospital upon the recommendation of two physicians without court
approval. While the commitment can be challenged in court and must
be reviewed by a court within 60 days, many individuals may instead
agree to voluntarily remain hospitalized (or be offered release)
prior to court review. Similarly, if the court does review the
commitment, it may decide that the individual does not require
involuntary hospitalization and order a release. Would these
situations meet the standard of involuntary commitment for NICS
purposes (i.e., would physicians and the receiving hospital be
construed as "lawful authorities")?
Response:
Federal regulations defined “committed to a mental
institution,” in part, as a formal commitment of a person to a
mental institution by a court, board, commission, or other lawful
authority. State specific or fact specific inquiries should be
directed to the Bureau of Alcohol, Tobacco, Firearms and
Explosives.
The last column in the spreadsheet
includes records at "other lawful authorities," which in
turn references state mental health databases. At this point in
time and for the foreseeable future, NY would not be able to provide
data that may exist in the approximately 130 licensed private
hospital databases.
Are states supposed to count the
involuntary commitments of minors? NYS Office of Mental Health (OMH)
was advised by the FBI that a mental health-related hospitalization
when the person was a minor does not need to be provided to the NICS
system. Does this mean the individual involuntarily committed at age
17 or younger would be able to legally purchase a gun upon reaching
majority, because such involuntary commitment would not be noted in
the NICS system?
Response Under development
Should incompetency to stand trial be counted when it is only
an intermediate adjudication and the individual is later restored to
competency and adjudicated (perhaps resulting in a favorable
adjudication and a sealing of the record) or is it limited to final
orders that accompany a dismissal of the case? Also, BJS should
provide the option for state mental health authorities to provide
counts of incompetency and insanity commitments, rather than relying
solely on court or rap sheet information.
Response:
More information regarding what is an “intermediate
adjudication” would be needed to respond to this inquiry.
State specific or fact specific questions should be referred to the
Bureau of Alcohol, Tobacco, Firearms and Explosives.
RI - The courts use codes in their system of NGBRI (Not Guilty by
Reason of Insanity) or NGLCR (Not Guilty Lack of Criminal
Responsibility) at the disposition level of a case. These codes
could be used to capture certain cases.
Response:
None.
SEARCH - In many states, mental health treatment information is not
available in an electronic format, is not collected in a central
location, or both. No conduit or process exists to forward this
information to the state repository, either from a central point or
from individual treatment facilities. There may be laws that
prohibit such exchanges. Legislative efforts to address legal
barriers may not meet the time requirements established by Congress
to provide mental health records, or to report on their
number.
Response: None.
UT - Mental Health Files: Does the state need to provide what is in
their files for Brady denials as part of the count for the number of
records in the state repository, or should they provide the totals
of criminal history files that indicate a disposition that meets the
mental criteria?
Response: The information
collection form acknowledges that the state’s assessment of
record availability will undoubtedly involve several considerations,
including what agencies or entities originate the records, the
number of these agencies, the number of available records, the
format of the records, and how long agencies may retain such
records. The reporting form solicits some information about these
issues in an effort to help guide the state’s development of
record estimates. Because each state’s record system is
unique, the reporting form calls for a narrative description of how
records on the relevant events are maintained in the state. This
part of the form is also the place where an explanation should be
provided for any missing data or failure to provide breakdowns of
the estimates as requested. The narrative will be used by the
Attorney General as a basis for evaluating the reasonableness of the
estimates, as required under the Act.
Category
6 – Protection or Restraining Orders
CA - Active protection/restraining orders in many jurisdictions can
be both temporary and “permanent” orders. Do you need
these to be separately reported since the ex parte order will not
set the weapon purchase prohibition under current law?
Response:
The information collection has been modified to clarify that the
estimates provided should include both permanent and temporary
orders.
KS - Kansas does not have a state-equivalent NCIC protection order
file. All protection orders are entered directly into NCIC at the
local level.
Response: None.
LA - If the language stands as currently written, it would include
all restraining orders issued by a civil, juvenile, or criminal
court against anyone, no matter the relationship. It should mirror
the federal statute which defines the type of protective order that
disqualifies a person from purchasing or possessing a firearm.
Intimate partner should also be defined (as per the federal statute)
and how the order was issued.
Response: As the
information collection notes, in developing the record estimates,
states are not required to assess individual records to determine
whether or not it would disqualify an individual from the receipt of
a firearm under federal law. Rather, the form seeks estimates of
the categories of records typically used by the NICS and ATF in
determining whether available information demonstrates that a
prospective purchaser is prohibited from receiving a firearm. In
other words, inclusion of a record in a state count for estimation
purposes only is not a determination that the subject of the record
either is or is not prohibited from firearm possession under federal
law. That determination requires additional research and analysis
which typically is performed by FBI NICS and State POCs during the
processing of NICS transactions. Also, as noted previously, the
information collection has been modified to clarify that the
estimates provided should include both permanent and temporary
orders.
MO - Repository Response: Due to the “electronically
available” definition, the repository concurs with the courts.
However, the number of reported protection and restraining orders
will be limited to the data collected from the “go live”
date of the planned interface. Court Response: Missouri has a
current project underway to electronically interchange protection
orders; the courts have no issue with the definition for category
6.
Response: None.
RI - Protection orders are issued at the court or the police
department and are faxed to the repository. They are manually
entered into the state repository and forwarded to NCIC.
Response:
None.
SEARCH - In some states, protection orders are entered into state
and national systems by local justice agencies over which the state
repositories or courts do not have jurisdiction, and are not alerted
when the orders are entered into the systems.
Response:
None.
WA - The majority of record types are maintained and available
through electronic means. The two exceptions are active warrants and
protection orders. Both of these records are generated by local
courts and paper copies are distributed to the appropriate local law
enforcement agency. Each agency must manually enter the required
information to the state NCIC interface. Many of these court records
do not contain the minimum data required for entry into NCIC. Local
law enforcement records staff often conduct additional searches to
find the required information. Upon submission to the NCIC
interface, these agencies maintain a paper copy of the record for
validation purposes. All protection orders entered into the state
system are provided to NCIC. Compliance with the new NICS
requirements will either necessitate significant changes to the
business process and technology infrastructure, or increased
staffing levels at law enforcement agencies.
Response:
None.
SEARCH - Processes for entering wants/warrants and protection orders
into state and national databases vary significantly from state to
state (even from jurisdiction to jurisdiction within states).
Attempting to quantify the number of these items in each state may
very well encounter the difficulties described above that can occur
when contacting local jurisdictions to request
information.
Response: None.
UT - The repository maintains the statewide protective order
database, but does not hold the records. Do you need the total
number of records that are housed in this file?
Response:
Yes, the estimate provided should reflect the number of such active
records in the file on the date indicated.
Category
7 – Convictions for Potential Misdemeanor Crimes of Domestic
Violence
KS - The repository will be able to provide estimates for
convictions of misdemeanor crimes of domestic violence, but it will
not accurately represent domestic violence in the state. Kansas only
has one statute that specifies domestic violence for battery and it
wasn’t enacted until 1996.
LA - If the language stands as currently written, it would apply for
any simple battery charge, no matter the relationship. The State’s
suggestion for narrowing Category 7: Title 18 USC 922(g)(9); see
also 925(a)(1) defines an MCDV as “an offense” that”:
Is a misdemeanor under federal, state, or tribal law; Has an
element of the use or attempted use of physical force, or the
threatened use of a deadly weapon; and At the time the offense was
committed, the defendant was: (a) A current or former spouse,
parent, or guardian of victim; (b) A person with whom the victim
shares a child in common; (c) A person who is cohabitating with or
has cohabitated with the victim as a spouse, parent, or guardian; or
(d) A person who was or is similarly situated to a spouse, parent,
or guardian of the victim.
Response: As the
information collection notes, “Note: This
category utilizes a list of the most common offenses which qualify
as MCDVs. Inclusion of a record in a state count for estimation
purposes only is not a determination that the subject of the record
either is or is not prohibited from firearm possession under federal
law. That determination requires additional research and analysis
which typically is performed by FBI NICS and State POCs during the
processing of NICS transactions.”
Category
7 is a major problem area for the state because the court minutes do
not track the relationship of the defendant to the victim. The
record would have to be reviewed to collect the information. The
only possible way is if a judge issues a criminal stay away order;
but very few state courts are issuing these orders at the time of
conviction. The state has no real way of estimating this number and
will only be able to report those few cases where the Protective
Order Registry gets a sentencing order.
Response:
None.
MO - Repository Response: The State repository can report
convictions for potential misdemeanor crimes of domestic violence.
This will encompass a wide range of state charge codes, and charges.
Some of the charges on file might not relate specifically to crimes
of domestic violence and should be used for estimation purposes
only. Court Response: Since Category 7 is defined as
'electronically available', and in Missouri that would be those
cases that exist in JIS or the criminal history repository, the
courts have no suggestions for changing Category 7. Prosecutor
Response: Cases which qualify as MCDVs under federal law may not
be able to be easily distinguished and thus identified. One
suggestion would be to amend existing NCIC modification codes to
include descriptions that correlate to the factors that relate to
MCDVs.
Response: None.
NY - New York does not have misdemeanor crimes of domestic violence
as defined by federal law. The State Penal Law doesn’t include
relationship of the victim to the perpetrator as an element of the
offense. Neither the repository nor the courts would consistently
indicate an incident as involving domestic violence; as a result the
repository would not be able to provide an estimate in this
category.
Response: None.
RI - All domestic charges are flagged in the state repository and
the court’s system.
Response: None.
III. Comments specific to the Federal Register Notice Questions
Recommendations to Enhance the Quality, Utility, and Clarity of Information to be Collected
MN - Category 3 and Category 6 require data from a specific date,
December 31, 2008. The state is not certain they have the ability to
capture data from this specific date. It may be more reasonable to
request the same data from the appropriate entities (the state
repository and the courts) on one date, but leave it up to the
entities to determine the exact date (within a specified timeframe).
Response: The reporting form calls for a narrative description of how records on the relevant events are maintained in the state. It also calls for an explanation of the approach taken in using these information sources to develop the estimates. This part of the form is also the place where an explanation can be provided for any missing data or failure to provide breakdowns of the estimates as requested. If a state cannot provide estimates of active records on the December 31st date specified, the explanation should be provided in this part of the form.
WA - The NICS Act may improve the quality of the information
provided by states to NICS. By coordinating with appropriated
stakeholders within the state justice community, states have the
opportunity to provide NICS the information through an automated
electronic means. By utilizing existing systems and leveraging
“middleware” technology, the state may reduce current
paper-based exchanges that are prone to mistakes and inefficiencies.
Automated exchanges present an opportunity to increase efficiency,
but rely on accurate originating records. The record collection form
does not address the quality of the original record. The utility of
the information provided to NICS and participating systems will
increase FFLs’ capability to make more accurate and complete
determinations at the time of purchase.
Response:
None.
Efforts to Minimize the Burden
NV - The burden cannot be minimized since the state does not have a
central point of contact for all information required. The state
judiciary cannot query a single electronic database to obtain the
various requested type filing estimates for the past 20 years. They
can estimate the various requested case types by using the Uniform
System of Judicial Reports statistical database and provide a fairly
reliable estimate for the past 10 years. The state would have an
extremely difficult time producing the actual records if so
requested as they are predominately still paper records.
Response:
None.
FL - The state has already expended more than 60 hours to date
evaluating how to collect the necessary data to respond to the
survey and preparing comments. The importance of the survey to the
continuation of critical funding means that the state will spend a
significant amount of time developing and documenting the
methodology. The survey requires 2 narratives for each of the 7
categories of data, 1 discussing record availability, and 1
documenting the estimation process. It is not clear if the 5 page
limit covers all 7 categories (which may be difficult to address in
such a short space) or if the respondent is allowed up to 5 pages
per category. The time to prepare these narratives has been grossly
underestimated.
Response: The information
collection has been modified to remove the page limitation tied to
the narrative portions of the form.
The number
of variables that impact the validity and reliability of the data
also impact the burden associated with collecting the requested
information initially, and protocols will have to be established for
collecting the information biennially. Based on the number of
agencies required to submit data, the time required for developing
the necessary data extract formulas for automated data and the
process of estimating data that is not automated is very difficult
to estimate until the process is started.
Local agencies
do not have the resources to research 20 years of historical data.
Florida suggests that responses to the survey be limited to data
available from agencies and organizations that collect statewide
information from the local levels and be limited to only the
information that meets the minimum criteria for entry into NCIC or
NICS systems.
HI - The costs/hours could be significant if manual physical record
gathering is required and the costs cannot be absorbed by existing
resources. The hours estimated may be extremely
underestimated.
Response: None.
MN - The burden is grossly underestimated. To identify the required
records in the state repository will take more than twice the
estimated time. This does not include efforts by local agencies or
the time to compare the various sources for “unique”
records.
Response: None.
NV - Nevada does not have electronic court records dating back 20
years. Additionally, mental health records are not a part of the
criminal history and state law would require changing to include
mental health records. The state believes this to be an impossible
burden.
Response: None.
NY – Three months is not enough time to develop
estimates.
Response: None.
SEARCH - Collecting much of the requested information, particularly
older documentation, could be very costly. Many states are affected
by the economic challenges facing the country. Taking time to locate
the records requested by the survey could present a significant
financial hardship and take staff away from more pressing
duties.
Response: None.
Necessity
of Information to Meet NICS Act Requirements and Practicability of
Information
WA
- The state believes the information requested for collection will
meet the objectives of the NICS Act. The state anticipates that
increasing the amount of information provided through NICS will
improve the process to ensure an individual is not prohibited from
purchasing a firearm. The State is confident that it will be able to
complete the record estimate form and record submissions within the
proposed timeframe.
Response: None.
| File Type | application/msword |
| File Title | Comments on the NIAA State Estimates Collection Form |
| Author | adamsd |
| Last Modified By | Lisa Price-Grear |
| File Modified | 2008-12-02 |
| File Created | 2008-12-02 |