To analyze and address the potential effects of the proposed requirement for next-day destruction of audit log records, the FBI reviewed all areas of NICS operations and has developed or is considering many operational and procedural changes. More specifically, the FBI has prepared a draft “concept of operations” document, which discusses the changes that would be needed in the NICS program. The document addresses applicable changes and modifications needed in computer systems and work processes, as well as policies and procedures. For example, the draft addresses computer system and procedural changes needed to purge NICS audit log records, work process changes needed to monitor examiner performance, and procedural changes needed to process appealed NICS transactions. According to NICS officials, under the FBI’s draft plans, most areas of NICS operations would not be adversely affected. The FBI also has reviewed the types of routine system audits conducted by the NICS Program Office’s Internal Assessment Group to determine how these audits would be affected by the proposed next-day destruction of audit log records. As a result of this review, the FBI plans to modify existing audit procedures, combine current audits for efficiency, and develop new audits. The FBI also determined that many of the audits would have to be conducted on a real-time (hourly or daily) basis, versus the current monthly or quarterly basis. Such audits include assessments of examiners’ decisions to allow firearms transfers to proceed and analyses of the processing of appealed transactions. The FBI plans to add 10 staff members to conduct these real-time audits, which would bring the total number of audit staff to 19. According to NICS officials, by modifying audit procedures, changing audit schedules, and increasing the number of audit staff, the Internal Assessment Group will not lose any routine audit capabilities under the proposed next-day destruction of records. While the NICS Internal Assessment Group may not lose routine audit capabilities under next-day destruction of records, such a policy would affect certain nonroutine audits of the system. Without these nonroutine audits, the FBI would be less able to assist law enforcement investigations. Specifically, if a law enforcement agency has information that indicates that an individual is prohibited from purchasing firearms under federal law, the agency may request that the FBI check whether the name appears in NICS records of allowed transfers. Under current processes, if the FBI finds a record showing an allowed transfer to a prohibited person (e.g., a transfer to an alien who is illegally or unlawfully in the United States), that record indicates a potential violation of law, and the FBI may disclose the record to the appropriate law enforcement entity responsible for investigating, prosecuting, or enforcing that law. An FBI official told us that performing such checks has been a longstanding practice used to audit the accuracy of responses given by NICS, with the additional (secondary) benefit of assisting law enforcement investigations. “We gather that although the checking of names the FBI has in mind will serve the purpose of auditing the NICS, the more immediate purpose is assisting the investigation of the September 11, 2001 terrorist attacks. Assisting criminal investigations generally is not one of the purposes for which the NICS regulations authorize the FBI to use audit log records. Nonetheless, we see nothing in the NICS regulations that prohibits the FBI from deriving additional benefits from checking audit log records as long as one of the genuine purposes for which the checking is carried out is the permitted purpose of auditing the use of the system. That the NICS has been using this method of auditing the system all along suggests to us that this method is more than simply a cover for using audit log records for a purpose other than those authorized by the NICS regulations.” According to an FBI official, on October 17, 2001, DOJ’s Office of Legal Policy informed the FBI that DOJ was reviewing the legal opinion and instructed the FBI to refrain from accessing information in the NICS audit log for investigatory purposes pending the outcome of the review. The official told us that, in late-December 2001, the Office of Legal Policy notified the FBI that, consistent with the legal opinion, a search of information in the NICS audit log could be conducted with regard to known prohibited persons for auditing purposes. The FBI does not maintain data on how often law enforcement agencies request NICS checks on known prohibited persons, but the FBI official told us that such inquiries frequently occur. The official noted, however, that performing such checks generally would not be possible given next-day destruction of records. The proposed policy requiring next-day destruction of NICS records would lessen the FBI’s ability to initiate firearm-retrieval actions involving transactions the FBI initially allowed to proceed but subsequently changed to denials. Specifically, during the first 6 months of the current 90-day retention policy, the FBI used retained records to initiate 235 firearm- retrieval actions related to reversed transactions, of which 228 (97 percent) could not have been initiated under the proposed next-day destruction policy. Such a policy also would have affected other NICS transactions in which firearms could have been transferred but were not. Further, procedures designed to help NICS identify prohibited persons who may be in possession of firearms would be adversely affected by next- day destruction of records. According to NICS officials, after the FBI informs a gun dealer that a firearm transfer may proceed, the FBI may receive information from a court, law enforcement agency, or other source that would prohibit the individual from possessing a firearm. In such cases, after a NICS examiner confirms the prohibiting factor, the audit log record showing the allowed firearm transfer is changed to a denial. Available records (retained under the current 90-day retention policy) are then used to (1) identify and contact the gun dealer to verify whether a firearm was actually transferred to the prohibited person and, if so, (2) notify the local police department— as determined by the purchaser’s address—and ATF. In each of these instances, ATF guidance requires that ATF open an investigation and coordinate attempted retrieval of the firearm with state or local law enforcement to ensure public safety. During the first 6 months of the current 90-day retention policy—July 3, 2001, through January 2, 2002—the FBI initiated 235 firearm-retrieval actions based on information received after NICS examiners initially allowed the transfers to proceed. FBI data on these 235 retrieval actions show that an average of 34 calendar days elapsed between the FBI’s initial decision to allow the transfers to proceed and the date that the FBI reversed the transactions to denials. As table 1 shows, of the 235 transactions, 7 (3 percent) were reversed in less than 1 calendar day, the amount of time records would be maintained under the proposed next-day destruction of NICS records; 116 (49 percent) were reversed in 30 calendar days or less; and 192 (82 percent) were reversed in 60 calendar days or less. As shown in table 1, the FBI reversed 7 (3 percent) of the 235 transactions from proceeds to denials in less than 1 calendar day. Thus, firearm- retrieval actions related to these 7 transactions would not have been affected if the proposed policy requiring next-day destruction of records had been in place. However, a large majority—228 (97 percent) of the 235 transactions—would have been affected by such a policy. More specifically, under the proposed next-day destruction policy, records related to the 228 transactions would have been destroyed before the FBI received the information that was used to reverse the transactions to denials. As a result, according to NICS officials, the FBI could not have initiated firearm-retrieval actions related to these 228 transactions. NICS officials provided the following examples: In September 2001, a man had his firearm purchase delayed while a NICS examiner researched several criminal history charges, all of which were found to be nondisqualifying misdemeanors. Finding no prohibiting record, the examiner advised the gun dealer that the transaction could proceed. The same individual attempted to purchase another firearm in October 2001 and was again delayed. The NICS examiner researching the second transaction found a protection order (a prohibiting record) in a criminal history database that had been issued in January 2001 but had not been posted to the database at the time the FBI allowed the first firearm transfer to proceed. The examiner denied the second transaction, and a firearm-retrieval action was initiated for the first transaction. In November 2001, a woman whose criminal history record showed an arrest for third-degree domestic battery had her firearm purchase delayed while a NICS examiner researched the charge. The examiner contacted a municipal court and a local police department to obtain additional information, including the relationship of the parties involved in the incident. The court responded that the woman was convicted but that the charge was not domestic-violence related. Because of this information, the examiner advised the gun dealer that the transaction could proceed. Three days later, the examiner received the police report on the incident, which showed that the assault was on the woman’s husband. A firearm-retrieval action was initiated. According to DOJ’s Office of Legal Policy, the problem of erroneous firearms transfers stems from incomplete or inaccurate criminal history records and will diminish as the states improve their criminal record systems. The office noted that DOJ’s National Criminal History Improvement Program will award $39 million to the states in fiscal year 2002 to improve their record systems, and, for fiscal year 2003, the President’s budget requests $63 million for this purpose. The office also noted that the Attorney General has directed the Bureau of Justice Statistics to study and recommend ways to target these grants to improve the accuracy of criminal history records, as well as records relating to adjudicated mental incapacity and domestic violence. While states are continuing to automate and otherwise improve the completeness and accessibility of their criminal history records, this process has been ongoing since the early 1990s and is still far from complete.