by Dan Lucas
Records retention was discussed due to privacy concerns, past examples of government being a poor steward of gun owners’ private information, and out of concern for the information being used as a gun registry. Gun owners have concerns about registries because they have been used to confiscate firearms, including recently in California and New York.
There seemed to be a great deal of confusion over background check records retention, and so I’ve attempted to find out what I could about what’s currently done in Oregon.
What happens with a background check?
Today in Oregon, if you go to a gun dealer and buy a gun, you’ll need to fill out some paperwork, be thumb printed and pass a background check.
You’ll fill out the buyer portions of an ATF Form 4473, be thumb printed, and then the dealer will run the background check. To run the background check, the dealer contacts the Oregon State Police Firearms Unit – Firearms Instant Check System (FICS) and provides the following information:
FICS then lets the dealer know if the transaction is approved, denied or pended (pended meaning that FICS is unable to determine if the purchaser is qualified within 30 minutes – dealer may need to fax thumbprints to FICS for positive identification, etc.)
The same process has to be followed at a gun show (ORS 166.438).
Oregon gun dealers are regulated by a variety of local, state and federal laws relevant to a gun sale.
What happens to the background check records?
After the background check, paper and/or electronic records then exist in three places for the background check:
- At the gun dealer
- At the Oregon State Police (FICS)
- At the FBI (NICS)
1. At the gun dealer
After the background check, the dealer is required to attach the thumbprint form to the ATF form 4473 and then keep those records for 20 years (U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) requirement).
The records are then available to law enforcement with the consent of the gun dealer “in the course of a reasonable inquiry during a criminal investigation,” or “under the authority of a properly authorized subpoena or search warrant.” Additionally, the records may be pulled by the gun dealer in response to an ATF firearm trace request. Traces are conducted for a variety of reasons by law enforcement, including checking on a gun used in a crime or trying to find the owner of a stolen gun. Law enforcement ask the ATF to conduct a trace, and the ATF starts at the manufacturer or importer with the serial number and traces it from there through any distributers to the gun dealer.
If a gun dealer goes out of business, then all of the records are turned over to the ATF. The records go to an ATF records center, the National Tracing Center (NTC). According to the ATF, “The NTC receives an average of 1.2 million out-of-business records per month. Since 1968, ATF has received several hundred million such records.”
People who have been involved in a gun store closing down in the past say that the ATF shredded records older than 5 years and sent the remainder to the records center.
Additional record keeping may be required by local authorities. For example, the City of Salem requires gun dealers (including pawn shops) to keep a record of any used guns purchased.
For guns sold at a gun show in Oregon, the records retention would depend on the seller. If the seller was a Federal Firearms Licensee (FFL) then they would need to keep the records for 20 years, per the ATF requirement. If the seller was not an FFL, then they would need to keep the records for 5 years, per Oregon law.
2. At the Oregon State Police (FICS)
At a recent Oregon Senate Judiciary Committee hearing, the Director of the Oregon State Police (OSP) Identification Services Section told the Committee that Oregon law allows OSP to retain the background check information for up to 5 years for all the transactions, but that there is an OSP policy to purge approved transactions after 10 days – unless the initial check indicated there was something that might cause the transaction to be denied.
The OSP FICS web site indicates that “Records of the transactions are kept for five years,” but again, recent testimony indicates an OSP policy states the approved transactions are to be purged after 10 days.
NOTE: I’ve sent some follow up questions to the OSP Identification Services Section related to the retention of background check records. The questions relate to who has authority to change the 10-day purge policy, how long it’s been in effect, how long backups of the records are kept, etc. I will publish those responses when I get them. UPDATE: Here are the results of my follow up questions to the OSP.
3. At the FBI (NICS)
As a part of the background check, the Oregon State Police contact the FBI/ATF National Instant Criminal Background Check System (NICS). Federal law requires that the NICS “must destroy all identifying information on allowed [approved] transactions prior to the start of the next NICS operational day.” Likewise, NICS can’t retain a record of delayed or denied firearm transactions if they are successfully appealed.
To read more from Dan, visit www.dan-lucas.com