28 C.F.R. § 25.6(j)(1) Accessing records beyond the scope of firearm acquisition

28 C.F.R. § 25.6(j)(1) Everytown and Giffords presenting a possible case for changing the CFR to include NICS background checks for firearm licensing. Currently we have the FBI-CJIS uses the following for FOID background checks: National Crime Information Center (NCIC), Interstate Identification Index (III), National Instant Criminal Background Check System (NICS), and the United States Department of Homeland Security (DHS). However, gun control advocates push for tighter regulations and perhaps argue that requiring that more states adopt IL's state model in order to cut down on straw purchases and "lie and try" applicants. As they are concerned about the time to crime with stolen firearms or straw purchases, they could contend that by 28 C.F.R. § 25.6(j)(2) is too late to stop the crime as (2) reads: Access to the NICS Index for purposes unrelated to NICS background checks pursuant to 18 U.S.C. 922(t) shall be limited to uses for the purposes of:
(2)
"responding to an inquiry from the Bureau of Alcohol, Tobacco, Firearms, and Explosives in connection with a civil or criminal law enforcement activity relating to the Gun Control Act (18 U.S.C. Chapter 44) or the National Firearms Act (26 U.S.C. Chapter 53)"



​Advocates and some law enforcement officials have pushed for greater access to the NICS. For instance, a 1998 rulemaking noted that local agencies wanted permission to access the database to determine if a person was in "unlawful possession of a firearm." The ATF resisted these requests. In the ATF's view, such expanded use would violate federal privacy laws. Moreover, ATF noted that the Brady Act only required federal agency reporting for the purpose of carrying out the federal background check provisions, rather than for a wider range of law enforcement activities. The permissive use regulations is constrained by a balancing act of complying with federal law, meeting the informational needs of local law enforcement, and ensuring privacy of the affected individuals. In arriving at the scheme in place today, the FBI and ATF has shown a willingness to expand NICS access to support local partners, but has apparently not gone as far as some of those partners may desire.
The comprehensiveness and accuracy of the NICS has been a subject of frequent debate and attention. At the federal level, many agencies possess disqualifying information that would be relevant to a background check. Under the original Brady Act, federal agencies were required to furnish information to the Attorney General upon request 34 U.S.C. § 40901(e)(1)).




However in Robinson v. Sessions, 260 F. Supp. 3d 264 (W.D.N.Y. 2017), the court noted in its opinion that the NICS index may only be accessed for purposes unrelated to NICS background checks when providing information related to issuing a firearm permit, in response to an inquiry from the Bureau of Alcohol, Tobacco, Firearms, and Explosives in connection with a civil or criminal law enforcement activity, or for the purpose of disposing firearms in the possession of a government agency. 28 C.F.R. § 25.6(j). The NICS audit log, however, may only be accessed for administrative purposes, such as analyzing system performance, and to support investigations and inspections of dealers.