PROPOSED RULEMAKING
STATE POLICE
[ 37 PA. CODE CH. 33 ]
Procedures and Specifications for Firearm Record Forms under the Uniform Firearms Act
[48 Pa.B. 297]
[Saturday, January 13, 2018]The State Police proposes to amend § 33.103 (relating to confidentiality) to read as set forth in Annex A.
Effective Date
This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
Statutory Authority
This proposed rulemaking is authorized under 18 Pa.C.S. § 6111.5 (relating to rules and regulations). Section 111(b) of the Mental Health Procedures Act (MHPA) (50 P.S. § 7111(b)) authorizes disclosure of mental health records information by the State Police.
Background and Need for this Proposed Rulemaking
Under 18 Pa.C.S. § 6111.1(a) (relating to Pennsylvania State Police), the State Police is charged with the responsibility to administer 18 Pa.C.S. §§ 6101—6127 (relating to Pennsylvania Uniform Firearms Act of 1995) (act). This charge has been described as ''broad authority'' for the purpose of ''ensur[ing] public safety and welfare by keeping firearms out of the hands of dangerous individuals.'' In re Expungements, 938 A.2d 1075, 1080—82 (Pa. Super. Ct. 2007). Section 6105(a)(1) and (c)(4) of 18 Pa.C.S. (relating to persons not to possess, use, manufacture, control, sell or transfer firearms) prohibits an individual who has been adjudicated as an incompetent or who has been involuntary committed to a mental health institution for inpatient care and treatment under the MHPA from possessing, using, controlling, selling or manufacturing a firearm or obtaining a license to possess, use, control, sell, transfer or maintain a firearm in this Commonwealth. Furthermore, the possession of a firearm by the mentally ill is regulated by section 902(g)(4) of the Gun Control Act of 1968 (18 U.S.C.A. § 922(g)(4)), and essentially every state in the country.
Records regarding mental health commitments under the MHPA are confidential and are generally not subject to disclosure except as provided by law. Section 111(a) of the MHPA provides that all documents regarding persons in treatment shall be kept confidential and may not be released or their contents disclosed without that individual's written consent. Section 111(b) of the MHPA provides an exception to this general rule that enables the State Police to obtain mental health records information, and disclose this information to any person, to administer 18 Pa.C.S. § 6105(c)(4), which prohibits an individual who has been adjudicated as an incompetent or who has been involuntary committed under the MHPA from, among other things, possessing a firearm. See Commonwealth v. Emmil, 866 A.2d 420, 422 (Pa. Super. Ct. 2005) (''[t]he MHPA permits the State Police to obtain specific mental health records in order to ensure that Section 6105 is not violated''). This exception allows the State Police to keep firearms out of the hands of individuals who have been adjudicated incompetent or involuntarily committed under the MHPA by allowing direct access to the mental health records information that evidence the prohibiting event.
The State Police obtains mental health records information because section 109(d) of the MHPA (50 P.S. § 7109(d)) and 18 Pa.C.S. § 6111.1(f) require judges and certain metal health officers and administrators to notify the State Police regarding an individual's involuntary commitment or incompetency adjudication within 7 days of its occurrence. This notice is a one-page form consisting of biographic information (not a copy of actual record of commitment or adjudication) and is used to create the State Police Mental Health Database for purposes of administering the firearm prohibition in 18 Pa.C.S. § 6105(c)(4).
The State Police's regulations do not clearly provide for the permitted use of the confidential information consistent with the authorized use in section 111(b) of the MHPA. Section 33.103(e), which concerns the confidentiality of mental health records information, only authorizes the mental health records information to be used by the State Police for the purpose of determining whether a person applying to obtain a firearm or license to carry a firearm is prohibited from possessing, using, controlling, selling, transferring or manufacturing a firearm. Section 111(b) of the MHPA, however, provides for a broader permissible use of this information and authorizes the State Police to disclose the information to any person to ensure compliance with 18 Pa.C.S. § 6105(c)(4). The lack of symmetry between § 33.103(e) and section 111(b) of the MHPA may be interpreted to prevent the State Police from using mental health record information for other purposes that are consistent with the act and the MHPA, but which are not seeking to obtain a firearm from a dealer or the issuance of a license to carry through the county sheriff.
The following are two examples for which the State Police would be using the information in the State Police Mental Health Database consistent with the authorization in section 111(b) of the MHPA, but which are not currently within the permitted use of this information under current § 33.103(e). First, it is consistent with section 111(b) of the MHPA for the State Police to query the State Police Mental Health Database in conducting a background check to determine whether local law enforcement officers, or candidates for those positions, are prohibited from possessing a firearm under 18 Pa.C.S. § 6105(c)(4). This is particularly important for a department prior to hiring an officer and issuing the officer a department-owned firearm. Allowing a police officer to possess a firearm when the officer has been adjudicated as incompetent, or involuntarily committed to a mental institution, has the potential to place residents in this Commonwealth at risk, not to mention allowing an individual to violate State or Federal firearms laws, or both.
Additionally, it is consistent with section 111(b) of the MHPA for the State Police to query the State Police Mental Health Database to assist police officers who identify a specific investigative need, in the course of an investigation under the act, to determine if a person is prohibited from possessing a firearm due to being adjudicated as an incompetent or having been involuntarily committed under the MHPA. In many cases, officers are unable to conclusively determine if a person has been subject to a disqualifying adjudication or commitment, without checking the person against the State Police Mental Health Database, to find if a mental health prohibition exists. Over the past two decades, there have been many highly publicized incidents when individuals possessed firearms, even though they had a mental health history that would have otherwise prohibited possession. Without information confirming that a person is prohibited under the act from possessing firearms for mental health reasons, officers may be unable to take the necessary steps to seize firearms or make an arrest, or both.
The proposed amendments to § 33.103(e) provide clarity and allow the State Police to clearly and fully utilize its lawful authority under the MHPA to protect the public from individuals who are prohibited from possessing a firearm due to an adjudication of incompetency or an involuntary commitment to a mental health institution.
Description of this Proposed Rulemaking
This proposed rulemaking amends § 33.103(e) to bring it in line with the permitted use of mental health record information by the State Police under section 111(b) of the MHPA. As previously discussed, § 33.103(e) currently authorizes the mental health records information to be use by the State Police ''only'' for the purpose of determining whether a person applying to obtain a firearm or license to carry a firearm is prohibited from possessing, using, controlling, selling, transferring or manufacturing a firearm. Section 111(b) of the MHPA provides for a broader permissible use of this information and authorizes the State Police to disclose the information to any person to ensure compliance with 18 Pa.C.S. § 6105(c)(4).
Accordingly, the State Police is proposing to amend § 33.103(e) to provide for the permitted exceptions to the general rule of confidentiality for mental health records information maintained by the State Police under the MHPA and the act. Proposed § 33.103(e)(1) contains the current regulatory language concerning the permitted use for a person applying to obtain a firearm or license to carry a firearm; ''only'' is proposed to be deleted because these two uses are not the only exceptions provided by law. Proposed § 33.103(e)(2), which provides that the State Police may disclose the information in accordance with section 111(b) of the MHPA, creates consistency and aligns the regulation with the permitted use of mental health record information by the State Police under the MHPA. By directly tying the regulation to the MHPA, prior ambiguity caused by the interplay of the regulation and the MHPA as to the State Police's ability to use the State Police Mental Health Database consistent with the MHPA will be removed.
Fiscal Impact and Paperwork Requirements
This proposed rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. This proposed rulemaking will not impose additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on January 3, 2018, the State Police submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Law and Justice Committee and the House Judiciary Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review prior to final publication of the rulemaking by the State Police, the General Assembly and the Governor.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to the Regulatory Coordinator, Legislative Affairs Office, State Police, 1800 Elmerton Avenue, Harrisburg, PA 17110, robailey@pa.gov within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference 17-85, Procedures and Specifications for Firearm Record Forms under the Uniform Firearms Act, when submitting comments.
COLONEL TYREE C. BLOCKER,
CommissionerFiscal Note: 17-85. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 37. LAW
PART I. STATE POLICE
CHAPTER 33. PROCEDURES AND SPECIFICATIONS FOR FIREARM RECORD FORMS UNDER THE UNIFORM FIREARMS ACT
GENERAL § 33.103. Confidentiality.
* * * * * (e) Mental health records information received or maintained by the State Police under section 6111.1(b) and (f) of the act (relating to Pennsylvania State Police) [shall be] and section 109(d) of the Mental Health Procedures Act (50 P.S. § 7109(d)) are confidential and not subject to [public] disclosure[.], except for all of the following:
(1) The information [shall] will be available [only] to the State Police for the purposes of determining, under sections 6109(d) and 6111.1(b) of the act, if the potential applicant is prohibited from possessing, using, controlling, selling, transferring or manufacturing a firearm, or obtaining a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth, as defined under Federal or State law, and for the purpose of informing the licensee/sheriff making inquiry under sections 6109(d) and 6111.1(b)(iii) of the act.
(2) The State Police may disclose the information in accordance with section 111(b) of the Mental Health Procedures Act (50 P.S. § 7111(b)).
[Pa.B. Doc. No. 18-60. Filed for public inspection January 12, 2018, 9:00 a.m.]
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