Relates to the transmission of data to the FBI by the department of mental hygiene regarding requests for possession of a firearm

These sections also provide that court proceedings brought against OMH or OMRDD to challenge the agency determination to deny a petition for relief from disabilities for a person who was denied a firearm are to be brought under Civil Practice Law and Rules (C.P.L.R.) Article 4 in the county in which the agency determination was made. It also provides for a four-month statute of limitations for such proceedings.

Section 2 of the bill also would amend Mental Hygiene Law § 13.09(f) to clarify that the Office of Court Administration (OCA), not OMRDD, is responsible for transmission to federal authorities of data for all individuals with guardians, including guardians of persons with developmental disabilities OMRDD retains responsibility for transmission of data regarding persons with developmental disabilities who are involuntarily committed to OMRDD residential facilities.

Section 3 of the bill would amend Mental Hygiene Law §§ 33.13(b) to clarify OMH and OMRDD retain the authority to access names, clinical records and other identifiable information of patients or clients from entities licensed or operated by OMH or OMRDD.

Section 4 of the bill sets forth the effective date.

Existing law

Chapter 491 of the Laws of 2008 authorized the Commissioners of OMH and OMRDD, as well as OCA, to collect, retain, modify and transmit data and records to NICS, to be used to determine whether persons who seek to purchase firearms are legally authorized to do so. This data includes only the names and other non-clinical identifying information of persons: (1) who have been involuntarily committed in hospitals licensed or operated by OMH or residential facilities under the jurisdiction of OMRDD; or (2) who have legal guardians appointed because of mental disability. In addition, this authorization applies to such data and records relating to sex offenders who are civilly confined in secure treatment facilities operated by OMH.

This chapter also requires the Commissioners of OMH and OMRDD to establish an administrative process to permit a person who has been or may be disqualified from possessing a firearm to petition for relief from that disability in writing, where the person's record and reputation are such that the person "will not be likely to act in a manner dangerous to public safety and where the granting of relief would not be contrary to public safety." OMH and OMRDD have the authority to require such a petitioner to undergo a clinical evaluation and risk assessment and the agencies must issue a written decision explaining the reasons for denying or granting such relief. Denial of a petition would be reviewed de novo pursuant to C.P.L.R. Article 78.

Chapter 491 of the Laws of 2008 further requires facilities licensed, funded or administered by OMH to provide non-clinical identifying information to OMH, in a form and format requested by the Commissioner, and requires hospitals to provide OMH with appropriate records, upon request, for transmission to the Criminal Justice Information Services Division of the Federal Bureau of Investigation (FBI) for inclusion in NICS. However, OMRDD was not so authorized. The legislation also authorizes OMH and OMRDD to release appropriate identifying information regarding patients or clients to the Division of Criminal Justice Services (DCJS) for subsequent transmittal to tbe FBI or authorizes OMH and OMRDD to transmit that information directly to the FBI. Finally, the law amended the Judiciary Law to require the Chief Administrator of the Courts (OCA) to adopt rules to require the transmission of appropriate records to DCJS, or directly to the FBI, which identify incapacitated persons or other persons with mental disabilities who are disqualified from possessing firearms as a result of having a guardian appointed for them.

Legislative history

This is a new proposal

STATEMENT IN SUPPORT

The proposed amendments are primarily intended to facilitate compliance with federal law - the NICS Improvement Amendments Act of 2007- which provides that when a person is denied the ability to purchase or possess a firearm as a result of information provided by an administrative agency, then the person may apply for relief from the disability and is entitled to have a hearing de novo in court. Proceedings under CPLR Article 78, however, are typically not proceedings de novo, but are proceedings to review the prior action of an administrative agency. To ensure that the proceeding to be commenced in court will in fact be a hearing de novo, this bill would amend the new State statute enacted as part of Chapter 491 of the Laws of 2008 to provide that the special proceeding to challenge an agency's denial of a petition for relief from disabilities be commenced under CPLR Article 4. The bill also includes a four-month statute of limitations for such proceedings to be commenced, in order to ensure that the proceedings are timely.

This bill would also amend Mental Hygiene Law §§ 7.09(j) and 13.09(f) by providing that such a special proceeding seeking relief from disability to possess a firearm may only be commenced in the county in which the respondent agency made its determination to deny the petition for relief. These amendments are designed to save State resources, particularly travel and staff time, by ensuring that such proceedings, which may require the testimony or other participation by agency personnel, occur close to the agency's central office where the determination to deny the person's petition for relief from disability was made. Notably, while the NICS Improvement Amendments Act now requires states to transmit the disqualifying mental health data to the NICS database, and to have an appeals/relief from disability process for persons denied the ability to purchase a firearm as a result of a mental health record, no federal funds have been appropriated to defray states' costs in this regard. However, if states fail to comply with the federal mandate, they face reductions in their federal grant funding.

The bill would also clarify that OCA, not OMRDD, would be responsible for transmitting data to the NICS database concerning persons who have a legal guardian appointed for them due to mental disability, as provided for in Chapter 491. This is necessary as OCA is the custodian of the guardianship records for all such individuals.

Budget implications

No costs to the State.

Effective date

This bill would take effect immediately.