GUN CONTROL

Sharing Promising 

Practices and 

Assessing Incentives 

Could Better Position 

Justice to Assist 

States in Providing 

Records for 

Background Checks

Report to Congressional Requesters

July 2012

GAO-12-684

United States Government Accountability Office

GAO
United States Government Accountability Office

Highlights of GAO-12-684, a 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

Why GAO Did This Study

The 2007 Virginia Tech shootings 

raised questions about how the 

gunman was able to obtain firearms 

given his history of mental illness. In 

the wake of this tragedy, the NICS 

Improvement Amendments Act of 2007

was enacted to, among other things,

provide incentives for states to make 

more records available for use during 

firearm-related background checks. 

GAO was asked to assess the extent 

to which (1) states have made 

progress in making mental health 

records available for use during NICS 

checks and related challenges, (2) 

states have made progress in making 

unlawful drug records available and 

related challenges, (3) DOJ is 

administering provisions in the act to 

reward and penalize states based on

the amount of records they provide, 

and (4) states are providing a means 

for individuals with a precluding mental 

health adjudication or commitment to 

seek relief from the associated federal 

firearms prohibition. GAO reviewed 

laws and regulations, analyzed Federal 

Bureau of Investigation data from 2004 

to 2011 on mental health and unlawful 

drug use records, interviewed officials 

from a nongeneralizable sample of 6 

states (selected because they provided

varying numbers of records) to obtain 

insights on challenges, and interviewed 

officials from all 16 states that had 

legislation as of May 2012 that allows 

individuals to seek relief from their 

federal firearms prohibition.

What GAO Recommends

GAO recommends that DOJ share

promising practices in making mental 

health records available and assess 

the effectiveness of rewards and 

penalties and how to best implement 

them. DOJ agreed with the results.

What GAO Found

From 2004 to 2011, the total number of mental health records that states made 

available to the National Instant Criminal Background Check System (NICS) 

increased by approximately 800 percent—from about 126,000 to 1.2 million 

records—although a variety of challenges limited states’ ability to share such 

records. This increase largely reflects the efforts of 12 states. However, almost 

half of all states increased the number of mental health records they made 

available by fewer than 100 over this same time period. Technological, legal, and 

other challenges limited the states’ ability to share mental health records. To help 

address these challenges, the Department of Justice (DOJ) provides assistance

to states, such as grants and training, which the 6 states GAO reviewed reported

as helpful. DOJ has begun to have states share their promising practices at 

conferences, but has not distributed such practices nationally. By disseminating 

practices that states used to overcome barriers to sharing mental health records, 

DOJ could further assist states efforts. 

The states’ overall progress in making unlawful drug use records available to 

NICS is generally unknown because of how these records are maintained. The 

vast majority of records made available are criminal records—such as those 

containing arrests or convictions for possession of a controlled substance—which 

cannot readily be disaggregated from other records in the databases checked by 

NICS. Most states are not providing noncriminal records, such as those related to 

positive drug test results for persons on probation. On May 1, 2012, DOJ data 

showed that 30 states were not making any noncriminal records available. Four 

of the 6 states GAO reviewed raised concerns about providing records outside 

an official court decision. Two states also noted that they did not have centralized 

databases that would be needed to collect these records. DOJ has issued 

guidance for providing noncriminal records to NICS. 

DOJ has not administered the reward and penalty provisions of the NICS 

Improvement Amendments Act of 2007 because of limitations in state estimates 

of the number of records they possess that could be made available to NICS. 

DOJ officials were unsure if the estimates, as currently collected, could reach the 

level of precision needed to serve as the basis for implementing the provisions. 

The 6 states GAO reviewed had mixed views on the extent to which the reward 

and penalty provisions—if implemented as currently structured—would provide 

incentives for them to make more records available. DOJ had not obtained the 

states’ views. Until DOJ establishes a basis for administering these provisions—

which could include revising its current methodology for collecting estimates or 

developing a new basis—and determining the extent to which the current 

provisions provide incentives to states, the department cannot provide the 

incentives to states that were envisioned by the act. 

Nineteen states have received federal certification of their programs that allow 

individuals with a precluding mental health adjudication or commitment to seek 

relief from the associated firearms prohibition. Having such a program is required 

to receive grants under the 2007 NICS act. Officials from 10 of the 16 states we 

contacted said that grant eligibility was a strong incentive for developing the 

program. Reductions in grant funding could affect incentives moving forward. 

View GAO-12-684. For more information, 

contact Carol Cha at (202) 512-4456 or 

chac@gao.gov.
Page i GAO-12-684 NICS Improvement Amendments Act

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

Contents
Page ii 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 iii 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

This is a work of the U.S. government and is not subject to copyright protection in the 

United States. The published product may be reproduced and distributed in its entirety 

without further permission from GAO. However, because this work may contain 

copyrighted images or other material, permission from the copyright holder may be 

necessary if you wish to reproduce this material separately.
Page 1 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 Act1 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

 

1

Pub. L. No. 103-159, 107 Stat. 1536 (1993). 

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 

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 2 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 3 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

 

5

The National Center for State Courts is an independent, nonprofit court improvement 

organization that conducts research, information services, education, and consulting. 

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 
 

Page 4 GAO-12-684 NICS Improvement Amendments Act

reasonableness.6

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.

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.

7

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.

 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.

The permanent provisions of the Brady Handgun Violence Prevention Act 

(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. 

Background 
 

Page 5 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

• 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.

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.

• 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 6 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 regulations11

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

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 

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.

 

10Pub. L. No. 90-618, 82 Stat. 1213 (1968).

1127 C.F.R. § 478.11.

12ATF 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. 

13ATF 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 7 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

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.

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.

15

 

14More 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

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 

15The 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 8 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

 

16The 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.

17The 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. 

18See appendix III for a copy of ATF’s minimum criteria document.
 

Page 9 GAO-12-684 NICS Improvement Amendments Act

States increased the number of mental health records available for use 

during NICS background checks from 200,000 in October 2004 to 1.2 

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 

records.19 DOJ and state officials identified technological, legal, and other 

challenges that hinder states’ ability to make these records available. 

DOJ has made several forms of assistance available to help states

provide records—including grants, conferences, and training—and the 6

states we met with generally reported finding these helpful. DOJ has 

begun to have states share their promising practices during regional 

meetings, but DOJ has not shared these practices nationally.

The total number of mental health records that states made available to 

the NICS Index increased by approximately 800 percent—from about 

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 

increase in the number of mental health records made available by 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. 

 

19Unless otherwise noted, “states” will refer to all 50 states and the District of Columbia.

20According 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. 

Most States Have 

Made Limited 

Progress in Providing 

Mental Health 

Records and Could 

Benefit from DOJ 

Sharing Promising 

Practices 

Mental Health Records 

Have Increased since NIAA 

Enactment, but Progress 

Largely Reflects Efforts of 

12 States
 

Page 10 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 

 

21See 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 11 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 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 

 

22According 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. 

DOJ and States Reported 

That Technological, Legal, 

and Coordination 

Challenges Hindered 

States’ Ability to Make 

Mental Health Records 

Available

Technological Challenges 
 

Page 12 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.

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 

Legal Challenges
 

Page 13 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

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.

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.

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

 

23Idaho 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. 

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 

24Texas Government Code § 411.052. 

2545 C.F.R. Part 164. 

26The 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 14 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.

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

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 

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.

 

27State 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). 

Coordination Challenges
 

Page 15 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.

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

 

28Section 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)). 

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 

States Generally Found 

DOJ Assistance with 

Providing Mental Health 

Records Helpful

Grants
 

Page 16 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

 

29GAO, Bureau of Justice Statistics Funding to States to Improve Criminal Records, 

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 

GAO-08-898R (Washington, D.C.: July 8, 2008). 
 

Page 17 GAO-12-684 NICS Improvement Amendments Act

criminal records management upgrades and other technology for 

information sharing.30

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.

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 

 

30National 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.

Training

Conferences 
 

Page 18 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 19 GAO-12-684 NICS Improvement Amendments Act

Although hearing about the experiences of other states during regional 

conferences has been helpful for some states in making mental health 

records available to NICS, DOJ has not yet identified promising practices 

employed by all states or shared this information nationally.31

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.

Officials 

from all 6 states in our sample noted that the sharing of promising 

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.

32

 

31Although 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

Identifying and distributing promising 

practices nationally could better position DOJ to assist states in the early 

32GAO, Standards for Internal Control in the Federal Government, GAO-AIMD-00-21.3.1

(Washington, D.C.: Nov. 1999).

DOJ Has Not Identified 

and Disseminated 

Promising Practices of 

Successful States

Nationally
 

Page 20 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 

encompasses both criminal and noncriminal records—is generally 

unknown; however, available data indicate that most states are not 

providing noncriminal records.33 DOJ’s overall efforts to improve criminal 

history records have assisted state efforts to provide unlawful drug use 

records. DOJ has issued guidance related to the unlawful drug use 

records that are noncriminal, but states in our sample raised concerns 

about providing these kinds of records.

The states’ progress in providing unlawful drug use records—which 

encompasses both criminal and noncriminal records—is generally 

unknown, but available data suggest that most states are not providing 

the noncriminal records. According to NICS Section officials, the majority 

of unlawful drug use records that states make available for NICS checks 

are criminal records—such as those containing convictions for use or 

possession of a controlled substance—and are made available to NICS 

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

 

33With 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. 

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.

34Search 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. 

States Generally Are 

Not Sharing Unlawful 

Drug Use Records 

That Are Not 

Associated with an 

Arrest or Conviction

State Progress in Providing 

Unlawful Drug Use 

Records Is Generally 

Unknown; Available Data 

Suggest Most States Are 

Not Providing Noncriminal 

Records 
 

Page 21 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

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).

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.

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.

 

35Officials 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. 

36As 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 22 GAO-12-684 NICS Improvement Amendments Act

DOJ efforts to help states address challenges in providing criminal drug 

use records have increased the ability of states to provide such 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.

DOJ’s Efforts Assist States 

in Providing Unlawful 

Drug Use Records
 

Page 23 GAO-12-684 NICS Improvement Amendments Act

DOJ has taken steps to help clarify the regulatory definition of unlawful 

drug use records that are noncriminal for states. For example, DOJ has 

made copies of the regulation that identifies the scope of these records 

for NICS checks available on its websites. DOJ officials have also 

conducted presentations at NIAA regional conferences that illustrated 

examples of records that fall within the scope of the definition of 

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 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 

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.

 

37With 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. 

DOJ Has Issued Guidance 

on Noncriminal Unlawful 

Drug Use Records, but 

States Have Concerns 

about Providing These 

Records 
 

Page 24 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 

of limitations in state record estimates, which are to serve as the basis for 

implementing the provisions. Officials from the states in our sample had 

mixed views on the extent to which the act’s reward and penalty 

provisions—if implemented as currently structured—would provide 

incentives for the state to make more records available to NICS.

DOJ Has Not 

Administered Reward 

and Penalty 

Provisions; Sample 

States Had Mixed 

Views on whether 

Provisions Provided 

an Incentive
 

Page 25 GAO-12-684 NICS Improvement Amendments Act

Limitations in state record estimates—which are estimates of the number 

of applicable records states possess that are or could be made available 

for use during NICS checks—have hindered DOJ’s ability to administer 

the NIAA reward and penalty provisions. These provisions are intended to 

provide incentives for states to share greater numbers of records by 

rewarding states that provide most or all of their records and penalizing 

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

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 

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.

 

38These 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).

39The 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.

States Face Challenges 

Developing Record 

Estimates, Limiting Their 

Usefulness as a Basis to 

Implement Rewards and 

Penalties
 

Page 26 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

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 

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.

 

40BJS 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 27 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.

Officials from the 6 states in our sample provided mixed views on the 

extent to which the NIAA reward and penalty provisions, if implemented 

as currently structured, would provide incentives for their states to make 

more records available for NICS checks. With respect to the NIAA reward 

provision, officials from 1 state, for example, said that the waiver of the 10 

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

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 

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.

 

41The 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 inkind 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. 

Sample States Had Mixed 

Views on whether Rewards 

and Penalties Provide 

Incentives to Submit More 

Records 
 

Page 28 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.

 

42This potential penalty was calculated using the Fiscal Year 2011 JAG Program statelevel 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.

43GAO-AIMD-00-21.3.1.
 

Page 29 GAO-12-684 NICS Improvement Amendments Act

Nineteen states have received ATF certification of their 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). Grant eligibility was the 

primary motivation for states to develop these relief programs, but 

reduced funding may result in fewer new programs.

From January 2009 through June 2012, ATF certified programs in 19

states that allow individuals with a precluding mental health adjudication 

or commitment to seek relief from the associated federal firearms 

prohibition, thus making these states eligible to receive NARIP grant 

funding.44 ATF certifies such relief from disabilities programs based on 

the requirements contained in the NIAA.45

 

44As 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.

ATF developed a minimum 

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 

45In 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. 

Nineteen States Have 

Programs to Relieve 

Federal Firearms 

Prohibitions for 

People with 

Precluding Mental 

Health Adjudications 

or Commitments

Nineteen States Allow 

Individuals to Seek Relief 

from Their Firearms 

Prohibition, Making These 

States Eligible for Grant 

Funding 
 

Page 30 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

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

As shown in table 1, these 

states reported receiving 60 applications, 26 of which were approved.

 

Applications

Received Approved Denied 

Dismissed

or Pendinga Year

Program Enacted

Date data 

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 

New Jerseyb Unknown 1 Unknown 2010 May 2012

Arizonab Unknown 2011 Dec. 2011

Floridab 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. 

 

46In June 2012, three additional states—Indiana, Nebraska, and West Virginia—received 

certification of their relief from disabilities programs.
 

Page 31 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.

DOJ officials reported that most states that develop relief from disability 

programs do so to be eligible for NARIP funding, and officials from 10 of 

the 16 states that had ATF-approved relief programs as of May 2012 

reported that eligibility to receive NARIP funds greatly motivated their 

state to pursue developing such a program. Officials from 5 of the 

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

 

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

Grant Eligibility Was an 

Incentive to Develop Relief 

Programs, but Reduced 

Funding May Result in 

Fewer New Programs
 

Page 32 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

FY 2009 

Award

FY 2010 

Awards

FY 2011 

Award

Award Total 

2009 – 2011

Award Total as 

Percentage

of Total

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%

Iowaa $0

Kansasb $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 33 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

 

48In 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. 

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 
 

Page 34 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, 

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 

Conclusions 
 

Page 35 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 

the Attorney General take the following two actions.

• 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.

Recommendations for 

Executive Action
 

Page 36 GAO-12-684 NICS Improvement Amendments Act

We provided a draft of this report for review and comment to DOJ. The 

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.

Agency Comments 
 

Page 37 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 38 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
Appendix I: Objectives, Scope, and 

Methodology

Page 39 GAO-12-684 NICS Improvement Amendments Act

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. 

Appendix I: Objectives, Scope, and 

Methodology 
Appendix I: Objectives, Scope, and 

Methodology

Page 40 GAO-12-684 NICS Improvement Amendments Act

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 
Appendix I: Objectives, Scope, and 

Methodology

Page 41 GAO-12-684 NICS Improvement Amendments Act

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

 

1

In June 2012, 3 additional states received certification of their relief from disabilities 

programs. We did not interview officials in these states. 

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 
Appendix I: Objectives, Scope, and 

Methodology

Page 42 GAO-12-684 NICS Improvement Amendments Act

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. 
Appendix II: State Options for Conducting 

Background Checks using the National Instant 

Criminal Background Check System

Page 43 GAO-12-684 NICS Improvement Amendments Act

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

 

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)

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.

Appendix II: State Options for Conducting 

Background Checks using the National 

Instant Criminal Background Check System 
Appendix II: State Options for Conducting 

Background Checks using the National Instant 

Criminal Background Check System

Page 44 GAO-12-684 NICS Improvement Amendments Act

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 nonPOC 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 
Appendix II: State Options for Conducting 

Background Checks using the National Instant 

Criminal Background Check System

Page 45 GAO-12-684 NICS Improvement Amendments Act

reported that Idaho elected not to become a full-POC state because of 

the added expense of performing background checks for long gun 

purchases.
Appendix III: Minimum Criteria for Certification 

of Qualifying State Relief from Disabilities 

Programs

Page 46 GAO-12-684 NICS Improvement Amendments Act

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 institution2 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. 

Appendix III: Minimum Criteria for 

Certification of Qualifying State Relief from 

Disabilities Programs
Appendix III: Minimum Criteria for Certification 

of Qualifying State Relief from Disabilities 

Programs

Page 47 GAO-12-684 NICS Improvement Amendments Act

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
Appendix III: Minimum Criteria for Certification 

of Qualifying State Relief from Disabilities 

Programs

Page 48 GAO-12-684 NICS Improvement Amendments Act

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.
Appendix IV: Federal and State Efforts to 

Ensure the Accuracy and Timeliness of

Records Used by the National Instant Criminal 

Background Check System

Page 49 GAO-12-684 NICS Improvement Amendments Act

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. 

During on-site triennial audits, the CJIS Audit Unit reports that it examines 

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

 

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.

DOJ 

Appendix IV: Federal and State Efforts to 

Ensure the Accuracy and Timeliness of 

Records Used by the National Instant 

Criminal Background Check System

Accuracy

FBI Triennial Audits and 

Proactive Validation Processes 
Appendix IV: Federal and State Efforts to 

Ensure the Accuracy and Timeliness of 

Records Used by the National Instant Criminal 

Background Check System

Page 50 GAO-12-684 NICS Improvement Amendments Act

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

In addition to DOJ’s audits, 2 of the states in our sample reported taking 

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 

As with the triennial audits, however, the FBI 

could not disaggregate the audit findings for each prohibitor.

 

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.

State Efforts to Ensure 

Accuracy 
Appendix IV: Federal and State Efforts to 

Ensure the Accuracy and Timeliness of 

Records Used by the National Instant Criminal 

Background Check System

Page 51 GAO-12-684 NICS Improvement Amendments Act

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.

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).

Timeliness
Appendix V: Comments from the Department 

of Justice

Page 52 GAO-12-684 NICS Improvement Amendments Act

Appendix V: Comments from the Department 

of Justice
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 

Acknowledgments

Page 55 GAO-12-684 NICS Improvement Amendments Act

Carol Cha, (202) 512-4456 or chac@gao.gov

Eileen Larence, (202) 512-6510 or larencee@gao.gov

In addition to the contacts above, Eric Erdman (Assistant Director), 

Claudia Becker, Tina Cheng, Katherine Davis, Michele Fejfar, Charlotte 

Gamble, Geoffrey Hamilton, Lara Miklozek, Christine Ramos, and David 

Schneider made key contributions to this report.

Appendix VI: GAO Contacts and Staff 

Acknowledgments 

GAO Contacts

Staff 

Acknowledgments

(441000)
The Government Accountability Office, the audit, evaluation, and 

investigative arm of Congress, exists to support Congress in meeting its 

constitutional responsibilities and to help improve the performance and 

accountability of the federal government for the American people. GAO 

examines the use of public funds; evaluates federal programs and 

policies; and provides analyses, recommendations, and other assistance 

to help Congress make informed oversight, policy, and funding decisions. 

GAO’s commitment to good government is reflected in its core values of 

accountability, integrity, and reliability.

The fastest and easiest way to obtain copies of GAO documents at no 

cost is through GAO’s website (www.gao.gov). Each weekday afternoon, 

GAO posts on its website newly released reports, testimony, and 

correspondence. To have GAO e-mail you a list of newly posted products, 

go to www.gao.gov and select “E-mail Updates.”

The price of each GAO publication reflects GAO’s actual cost of 

production and distribution and depends on the number of pages in the 

publication and whether the publication is printed in color or black and 

white. Pricing and ordering information is posted on GAO’s website, 

http://www.gao.gov/ordering.htm. 

Place orders by calling (202) 512-6000, toll free (866) 801-7077, or 

TDD (202) 512-2537. 

Orders may be paid for using American Express, Discover Card, 

MasterCard, Visa, check, or money order. Call for additional information.

Connect with GAO on Facebook, Flickr, Twitter, and YouTube. 

Subscribe to our RSS Feeds or E-mail Updates. Listen to our Podcasts. 

Visit GAO on the web at www.gao.gov. 

Contact:

Website: www.gao.gov/fraudnet/fraudnet.htm

E-mail: fraudnet@gao.gov

Automated answering system: (800) 424-5454 or (202) 512-7470

Katherine Siggerud, Managing Director, siggerudk@gao.gov, (202) 512-

4400, U.S. Government Accountability Office, 441 G Street NW, Room 

7125, Washington, DC 20548

Chuck Young, Managing Director, youngc1@gao.gov, (202) 512-4800

U.S. Government Accountability Office, 441 G Street NW, Room 7149 

Washington, DC 20548

GAO’s Mission

Obtaining Copies of 

GAO Reports and 

Testimony 

Order by Phone

Connect with GAO

To Report Fraud, 

Waste, and Abuse in 

Federal Programs

Congressional 

Relations 

Public Affairs

Please Print on Recycled Paper.