Brady Act Implementation Issues

T he A ttorney General may im pose an expiration date on the validity o f a check, conducted pursuant 

to the Brady A ct by the national instant crim inal background check system , that authorizes the 

transfer of a firearm.

Inform ation from the national instant crim inal background check system may be disclosed to law 

enforcem ent agencies to further their crim inal investigations, but disclosures m ay not be made 

for the purpose o f establishing firearms registries and non-consensual disclosures m ay not be made 

for em ploym ent and licensing purposes.

The Privacy Act places no restrictions on the Attorney G eneral’s express authority under the Brady 

Act to request information from federal agencies identifying individuals who fall within the categories o f persons prohibited from possessing firearms.

February 13, 1996

M e m o r a n d u m O p i n i o n f o r t h e G e n e r a l C o u n s e l

F e d e r a l B u r e a u o f In v e s t i g a t i o n

This memorandum responds to your request for our advice concerning implementation of the Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 

107 Stat. 1536 (1993) (“ Brady Act” ). Specifically, you have asked three questions 

relating to the national instant criminal background check system (“ NICS” ) mandated by the Brady Act:

(I) May the Attorney General impose an expiration date on a NICS 

check that allows the transfer of a firearm?

(II) May NICS be used for purposes other than conducting background checks on prospective firearms purchasers?

(III) May the Attorney General request from federal agencies all 

information identifying individuals who fall within the categories 

of persons prohibited from possessing firearms?

We address each of these questions below.

You have also asked us to review a memorandum prepared by the Office of 

Policy Development (“ OPD” ) that concludes that the Brady Act does not preempt 

states from imposing additional restrictions providing for waiting periods on the 

sale of firearms. We agree with the conclusion reached by OPD.

I. The Attorney General May Impose An Expiration Date on a NICS Check

Section 103 of the Brady Act provides for the establishment of NICS by the 

Attorney General. The system must be operational by the start of 1999. Firearms 

dealers will then be required to refer the proposed firearm transfer to that system 

to determine whether any legal impediment exists to the sale. 18 U.S.C. §922(t)(l)

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(1994). You have advised us that upon completion of the NICS check, the system 

would notify the firearm dealer of the results of the check by an indication that 

the transfer would be legal or not. You have asked whether the Attorney General 

has the authority to impose an expiration date on the validity of a NICS check 

that allows for the transfer of a firearm. As discussed below, we conclude that 

the Attorney General may impose an expiration date on a NICS check.

Section 103(b) of the Brady Act states that “ the Attorney General shall establish 

a national instant criminal background check system that any licensee may contact 

. . . to be supplied immediately, on whether receipt of a firearm by a prospective 

transferee would violate section 922 of title 18, United States Code, or State law.” 

107 Stat. at 1541. Section 103(d) provides that “ [o]n establishment of the system 

under this section, the Attorney General shall notify each licensee and the chief 

law enforcement officer of each State of the existence and purpose of the system 

and the means to be used to contact the system.” Id. at 1541-42. Section 103(e)(2) 

authorizes the Attorney General to develop the computer software and design as 

necessary to “ establish and operate the system in accordance with this section.” 

Id. at 1542.

Although the Brady Act does not specifically provide for an expiration date 

for a NICS check that authorizes a firearm transfer, we believe that in carrying 

out her responsibilities under the Act, the Attorney General has the authority to 

impose, in effect, a “ useful life” limitation on the validity of the check. Such 

an exercise of authority would be supported by the Act’s legislative history.

The Supreme Court has acknowledged the legitimacy of the executive branch’s 

completing the work of Congress, notwithstanding the lack of a specific direction 

by the legislative branch to do so. “ The power of an administrative agency to 

administer a congressionally created and funded program necessarily requires the 

formulation of policy and the making of rules to fill any gap left, implicitly or 

explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974). More recently, the Court stated: “ As we emphasized in [Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, 467 U.S. 837 (1984)], when an agency is charged 

with administering a statute, part of the authority it receives is the power to give 

reasonable content to the statute’s textual ambiguities.” Department o f Treasury,

Internal Revenue Serv. v. Federal Labor Relations Authority, 494 U.S. 922, 933 

(1990).

A decision by the Attorney General to impose an expiration date on a NICS 

check would be supported by the Brady Act’s legislative history. The purpose 

of the Brady Act is to prevent convicted felons and other persons who are barred 

by law from purchasing guns from gun dealers. See H.R. Rep. No. 103-344, at 

7 (1993). This purpose is served by the Attorney General establishing a national 

instant criminal background check system that is “ capable of instant response 

to inquiries and use by licensed gun dealers . . . at the point of firearm purchase.” 

Id. at 8. NICS will enable firearms dealers to determine “ whether a proposed

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Brady Act Implementation Issues

transfer would be a prohibited one.” Id. at 11. NICS “ guarantees immediate delivery of a handgun to a proven law-abiding citizen.” Id. at 33 (dissenting views).

These congressional statements reveal an intent that the NICS check be conducted close to the time of the proposed sale and that the Attorney General establish a system that will operate in that fashion. The purpose of the Brady Act, 

which is to prohibit the sale of firearms to certain individuals, is served by a 

system that requires a check to occur in close proximity to a firearm sale. If a 

NICS check could be requested at any time prior to a sale and the results of 

that check were to remain valid for an indefinite period of time, a purchaser could 

obtain a NICS check, wait to purchase the firearm, and then engage in conduct 

that would otherwise bar the purchase of the firearm. Imposing an expiration date 

on the NICS results would better ensure that firearm transfers are made to lawabiding citizens because the dealers would not be able to rely on stale information 

in transferring the weapon.

We now turn to your suggestion that the Attorney General impose an expiration 

date of thirty days following each NICS check. We believe that although a thirty 

day period might be reasonable, a forty-five or sixty day period might be more 

reasonable. Imposing a longer period of time would better afford an opportunity 

to those individuals who were unable to return to the firearms dealer because 

of health or other legitimate personal reasons.

n . NICS May Be Accessed for Other Law Enforcement Purposes

In establishing NICS, section 103 of the Brady Act directs the Attorney General 

to gather state criminal history records to include with the federal criminal records 

system and to obtain information on persons for whom receipt of a firearm would 

violate 18 U.S.C. § 922(g) or (n) or state law. You have advised us that the system 

will include, inter alia, records on dishonorable dischargees from Defense Department files, on drug users and mental defectives/commitments from Veterans Affairs Department and Defense Department files, and on drug users from the pilot 

license files of the Federal Aviation Administration. You have asked whether information from NICS may be disclosed to law enforcement agencies to further 

their investigations and to other agencies for employment and licensing purposes 

unrelated to firearm purchases. As discussed below, we believe NICS may be 

accessed by, or information therefrom may be disclosed to, law enforcement agencies. Disclosures for purposes of establishing firearms registries, however, are prohibited. Also, non-consensual disclosures for employment and licensing purposes 

are not authorized.

Under 28 U.S.C. §534 (1994), the Attorney General has the authority to disseminate NICS information to authorized federal, state, and local officials for their 

official use. The disclosure, however, must satisfy the requirements of the Privacy

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Act. Section 105 of the Brady Act states that the Act “ shall not be construed 

to alter or impair any right or remedy” under the Privacy Act. 107 Stat. at 1543.

The Privacy Act provides, in relevant part, that:

No agency shall disclose any record which is contained in a system of records . . . to any person, or to another agency, except 

pursuant to a written request by, or with the prior written consent 

of, the individual to whom the record pertains, unless disclosure 

of the record would be—

(1) to those officers and employees of the agency which maintains 

the record who have a need for the record in the performance of 

their duties;

(3) for a routine use . . .;

(7) to another agency . . . for a civil or criminal law enforcement 

activity if the activity is authorized by law, and if the head of the 

agency or instrumentality has made a written request to the agency 

which maintains the record specifying the particular portion desired 

and the law enforcement activity for which the record is sought.

5 U.S.C. § 552a(b) (1994).

The Privacy Act defines a “ system of records” as a group of records under 

the control of an agency “ from which information is retrieved by the name of 

the individual or by some identifying number.” 5 U.S.C. §552a(a)(5) (1994). 

Based upon your description, it is clear that NICS constitutes a “ system of 

records” as that term is defined in the Privacy Act. Accordingly, only disclosures 

falling within an exception under the Act are permissible.

Section 552a(b)(l) provides a “ need to know” exception and authorizes the 

intra-agency disclosure of information for necessary, official purposes. Under this 

exception, components of the Department of Justice needing to know the information in the performance of their official duties will be able to access NICS for 

that purpose.

Section 552a(b)(3) permits the disclosures pursuant to “ routine use notices” 

published in the Federal Register. A “ routine use” is defined as the use of information “ for a purpose which is compatible with the purpose for which it was 

collected.” 5 U.S.C. §552a(a)(7). The purpose for which the information in NICS 

will be collected is a law enforcement purpose. As discussed earlier, the system 

will be used to prevent convicted felons and other ineligible persons from purchasing guns. We believe that disclosure of NICS information to law enforcement 

agencies to further their criminal investigations should be held to be compatible 

with the law enforcement purpose for which the information was collected.

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Even if a “ routine use” were not promulgated under §552a(b)(3), law enforcement agencies would be able to access NICS or obtain NICS information pursuant 

to § 552a(b)(7), if the requests were submitted in writing and signed by the head 

of the agencies or authorized designees.

There are no exceptions in the Privacy Act that would permit the non-consensual 

disclosures of NICS information for non-law enforcement purposes. Accordingly, 

consent from the individual would be required to access NICS for purposes of 

employment and licensing inquiries. *

Section 103(i) of the Brady Act does not change our analysis or conclusion 

relating to NICS disclosures. Section 103(i) reads:

PROHIBITION RELATING TO ESTABLISHMENT OF REGISTRATION SYSTEMS WITH RESPECT TO FIREARMS.—No 

department, agency, officer, or employee of the United States 

may—

(1) require that any record or portion thereof generated by the 

system established under this section be recorded at or transferred 

to a facility owned, managed, or controlled by the United States 

or any State or political subdivision thereof; or

(2) use the system established under this section to establish any 

system for the registration of firearms, firearm owners, or firearm 

transaction or dispositions, except with respect to persons, prohibited by section 922 (g) or (n) of title 18, United States Code or 

State law, from receiving a firearm.

107 Stat. at 1542. The clear intent of Congress in adopting this provision was 

to prohibit the establishment of a firearm registry. The title of the provision, the 

relation between subparagraphs (1) and (2), and the legislative history support 

our conclusion.

“ Titles have a communicative function. . . . Since the title of an act is essentially a part of the act and is itself a legislative expression of the general scope 

of the bill, it is proper to consider it in arriving at the intent of the legislature.” 

2A Norman J. Singer, Sutherland on Statutes and Statutory Construction § 47.03 

(5th ed. 1992) (“ Sutherland” ). Here, the title explicitly limits the scope of the 

provision to the prohibition of the establishment of a firearm registry.

Likewise, the interrelation between subparagraphs (1) and (2) confirm our view 

that the provision is intended to prohibit the use of NICS in establishing a firearm 

registry. Section 103(i)(l) is a specific prohibition of a particular method in establishing a registry. Section 103(i)(2) establishes a general prohibition against using 

the system to establish a registry. Drafting a statute that includes a specific provi-

•E ditor’s Note: The Department of Justice published a Privacy Act System Notice for the NICS on 11/25/98 

that exempts the NICS from the record access provisions of the Privacy Act, 63 Fed. Reg. 65,060 (1998). Privacy 

Act requests for non-exempt records must comply with the alternative procedure set forth in the notice.

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sion followed by a general one can be explained as a common “ technique designed to save the legislature from spelling out in advance every contingency in 

which the statute could apply.” 2A Sutherland at §47.17.

Finally, the legislative history supports the conclusion we have reached based 

on the text of the statute. The report of the House Committee on the Judiciary 

explained that section 103(i) “ prohibits any Federal department, agency, officer, 

or employee from using the system or any part thereof to establish a registry 

of firearms, firearms owners, or firearms transactions” except with respect to persons falling within the ambit of 18 U.S.C. § 922(g) or (n). H.R. Rep. No. 103- 

344, at 20 (1993). The report thus confirms that the sole purpose of section 103(i) 

was to prohibit the use of NICS information for the purpose of establishing firearm 

registries.

HI. The Attorney General May Request Information From Federal Agencies

The Brady Act directs that the Attorney General gather the necessary information in establishing NICS. Section 103(e)(1) states:

AUTHORITY TO OBTAIN OFFICIAL INFORMATION.— 

Notwithstanding any other law, the Attorney General may secure 

directly from any department or agency of the United States such 

information on persons for whom receipt of a firearm would violate 

subsection (g) or (n) of section 922 of title 18, United States Code 

or State law, as is necessary to enable the system to operate in 

accordance with this section. On request of the Attorney General, 

the head of such department or agency shall furnish such information to the system.

107 Stat. at 1542.

Section 105 states that the Brady Act “ shall not be construed to alter or impair 

any right or remedy” under the Privacy Act. 107 Stat. at 1543. You have asked 

whether the Privacy Act places any limitation on the Attorney General’s express 

authority in section 103(e)(1) to request from federal agencies all information 

identifying individuals who fall within the categories of persons prohibited from 

possessing firearms. We do not believe that it does.

The plain meaning of the phrase “ notwithstanding any other law,” in section 

103(e)(1) convinces us that Congress did not intend for the Privacy Act or any 

other law to prohibit the Attorney General from gathering the critical information 

necessary to create a registry of individuals prohibited from owning a firearm. 

NICS serves the Brady Act’s fundamental purpose of identifying those individuals 

who are not permitted by law to own a firearm. Limiting the Attorney General 

in identifying those individuals would be contrary to the purpose of the Act. In 

our view, the effect of the “ notwithstanding any other law” language in section

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103(e)(1) is that the Privacy Act does not apply to disclosures by agencies to 

the Attorney General for the purpose of putting information into NICS. The effect 

of section 105 is that the Privacy Act regulates disclosures out o f NICS.

RICHARD L. SHIFFRIN 

Deputy Assistant Attorney General

Office o f Legal Counsel

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