Honorable Birch Bayh
United States Senate
Washington, DC 20510

Dear Senator Bayh:

This is in further reference to your letter of October 15, 1979, inquiring about the accuracy of the National Firearms Registration and Transfer Record which is maintained under the National Firearms Act (NFA). You also seek an explanation for ATF's claim of executive privilege in a pending forfeiture case involving the National Rifle Association with respect to internal memoranda concerning the NFA record system.

By letter dated November 16, 1979, you were advised that Attorney General Civiletti had received a similar letter from Senator James A. McClure. The Department of Justice has completed its review of the various 1975 internal Bureau memoranda concerning the National Firearms Registration and Transfer Record and was unable to agree with Senator McClure that a serious problem exists or existed regarding the integrity or accuracy of NFA certifications. In addition, the Department determined that the documents were not material the Government is required to release under the doctrine of Brady v. Maryland, 373 U.S. 93 (1963).

The criticisms of the registration system raised by the 1975 internal memoranda relate primarily to the existence of misfilings, excess paper in the file, the inability to accumulate rapidly statistical data, inconvenient access to records due to limitations in the filing equipment, and the "change out" procedure for removing index cards from the file.

Immediately after, and in response to those 1975 criticisms, various changes were made in the ATF records and recordkeeping procedures. Those individuals in charge of the records were given authorization to obtain equipment to change the filing system from Diebold machines, with limited access, to file cabinets with individual folders for each registered possessor of a firearm. In addition, the record system was reorganized and purified through several means. Misfilings were corrected and excess paper unrelated to registration status was eliminated.

As you may know, the National Firearms Registration and Transfer Record consists of two separate filing systems. In the first instance, each registered possessor of a firearm has a separate individual file folder within which is a copy of the original registration form for each and every firearm in their possession. These folders are maintained alphabetically by name of registered possessor. Secondly, an index card is prepared, indexing each weapon by serial number. This file in the index card file; it provides both a back-up and a crosscheck for the alphabetical file. Both components are examined in searches for evidentuary purposes and only in the event that a firearm has been registered but both files are missing can an erroneous certification be made.

Sworn testimony by ATF personnel taken in connection with the forfeiture case of United States v. Seven Miscellaneous Firearms, Civil Action 78-1338 (D.D.C.) revealed that no one has ever produced a registration form or testified that he had registered a particular weapon after ATF had certified to a court that the person was not the registered possessor of a particular weapon. In this regard it should be noted that ATF presently makes 2,000 certifications a year for use in court proceedings. Significantly, 26 U.S.C. § 5841(e) requires persons possessing registered firearms to retain proof of such registration.

You also questioned the Bureau's claim of "executive privilege" in the above case. During the discovery stages of the litigation, we refused to produce certain documents demanded by the National Rifle Association because we believed that the documents were not relevant and that the requested materials were protected from public disclosure by the deliberative process privilege which is embodied in the general concept of executive privilege. This decision was made with the full concurrence of the U.S. Attorney's Office and the Department of Justice.

It is clear that one form of executive privilege protects the pre-decisional thought processes of the executive from public disclosure. Various passages of the documents at issue reflected advisory opinions, recommendations, deliberations, and options which comprised part of the process by which Bureau decisions and policies were formulated and were, therefore, within the deliberative process privilege. However, for the reasons explained below, ATF voluntarily waived its claim of executive privilege.

The claim of privilege was withdrawn for the following reasons. First, all of the documents were over four years old, thus somewhat lessening the possibility that their release could cause immediate harm to the agency's deliberative processes. Secondly, many of the criticisms discussed in the documents have been corrected by action taken since 1975. Thirdly, and importantly, the complete evidence adduced in the case revealed that the opinions, speculations, and conclusions found in these documents, when put in proper context and perspective, were overstatements which neither impugn the integrity of the records system nor affect the ability of the Bureau to accurately certify to the registration status of a National Firearms Act weapon.

We trust that this has been responsive to your inquiry. If we can be of further assistance in any way, please let us know.

Sincerely yours,

G.R. Dickerson
Director