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Hawaii has been getting a bad rap in recent reports for not providing mental health records to a national database used by gun dealers to check on buyers.
The National Instant Criminal Background Check System has one mental health record from Hawaii, and FBI officials told Civil Beat that the lone filing is likely a test record.
But officials with the Hawaii attorney general’s office say they do give criminal history information to the FBI — and that the system will flag a person with a criminal history in Hawaii that bars him or her from purchasing guns.
Still, it’s unclear whether Hawaii is sending all the mental health records that are required. And there’s no one taking the lead to make sure that Hawaii is complying, interviews with several agencies suggest.
“Mental health records are a difficult issue, not just for Hawaii but for other states as well,” said Liane Moriyama, administrator of the Hawaii Criminal Justice Data Center. “It’s a broad brush as far as where that mental health data can be collected from and how it then gets authorized to be sent to this national system.”
“It will probably be something that needs to be addressed legislatively,” she said.
Records of civil commitments to a mental institution — such as when a court determines that someone is a danger to self or others and must be committed — are not sent to the database because of strict state privacy laws.
Still, the federal government does have access to Hawaii’s criminal records.
“Whenever they get a firearm applicant, they’re reaching out to us for our complete criminal history and we give it to them,” Moriyama said. “In that criminal history we have the mental health acquittal by reason of insanity, we have the felony convictions, we have all of that. They get that through our criminal history, so we don’t necessarily have to report separately to NICS, they get full access to our criminal history.”
On a broader level, Hawaii doesn’t collect or share information about people with mental health issues who have applied for a gun and were turned down. Even the names of persons applying for guns is confidential under state law.
Now, the state is considering creating its own database of people with mental health issues who shouldn’t be allowed to possess a gun. But the bill doesn’t address whether that would be shared nationally.
As President Barack Obama seeks to strengthen background checks as part of his proposed gun law reforms, the NICS system has come under scrutiny. And as news reports have pointed out, the system is full of holes.
The NICS background check system was created by a 1993 law aimed at preventing people from having guns if they were convicted of a felony, committed domestic violence, addicted to drugs or were committed involuntarily to mental institutions.
After the Virginia Tech shooting that killed 32 people, Congress in 2007 attempted to strengthen the system by providing grants to help prod states into collecting the necessary records.
The database has 1.2 million mental health records, up from 200,000 in 2004, but most of those records came from just 12 states, according to news reports.
Trying to figure out why Hawaii gets such poor grades — and who’s responsible — wasn’t easy.
Hawaii was listed among the worst performing states, submitting a single mental health record, according to the “Fatal Gaps” report, produced by Mayors Against Illegal Guns, a coalition of mayors promoting tougher gun regulations.
Moriyama, at the Criminal Justice Data Center, said her division was very familiar with NICS and thought Hawaii was already covered.
“We always thought that because our criminal history is so robust in Hawaii and our permitting process is so strict that we were pretty much OK,” she said. “But we continue to look at that because if there are going to be huge federal funds available that could help us in that regard, we’d certainly examine that.”
Moriyama said she didn’t know how the single record listed for Hawaii had gotten into NICS. An FBI spokesman told Civil Beat the one record was most likely a test file.
One possible explanation, Moriyama said, is that other states without gun laws as strict as ours are not already sharing with the FBI a complete criminal history as Hawaii does. And thus individual criminal mental health records are being submitted directly to NICS and being counted.
But although Hawaii sends the FBI criminal history information, including information on people who are found not guilty by reason of insanity, the state is not submitting records of involuntary commitments to mental institutions.
Could other states be submitting those types of records to NICS and Hawaii isn’t? Moriyama said she wasn’t sure and that civil commitments are not tracked by her division.
The Department of Health was not familiar with the NICS reporting requirement and cited privacy laws protecting the medical records belonging to people with mental illness.
“One of the issues for us giving out those records is state laws. If someone’s in our care and they’re being treated, they have medical records but that’s private information,” said Janice Okubo, health department spokeswoman.
“We have very very strict confidentiality laws … ultimately I think it would be legislators who would have to change that,” she said.
Records can only be shared if a patient signs a waiver — and when someone in Hawaii applies for a gun.
The shooting at Newtown, Connecticut, prompted a national debate over gun control as well as several bills at the Hawaii Legislature targeting high-powered weapons and ammo.
Senate Bill 932 would create a reporting system for people who threaten violence to others in front of a mental health professional. Those names would be put on a list of people prevented from possessing or purchasing firearms.
SB 932, introduced by Sen. Josh Green, has two referrals — requiring at least two Senate committee hearings.
At the bill’s first hearing on Friday, critics attacked the issue from both sides, saying that it was well intentioned but would have a chilling effect on people who need mental health services but would be afraid to seek them knowing that their names might end up in a database.
Andrea Armitage, a deputy attorney general, said the measure also conflicts with state privacy laws and the federal Health Information Portability and Accountability Act.
“If you’re looking at HIPAA — and I know other states have done something like this but we’re not quite sure how,” she said, adding after the meeting that she planned to call other states to follow up.
“We appreciate the intent of this bill but would recommend an alternative approach … expand the process that is already in place,” she said, namely by including private mental health treatments in the mental health check requirement.
Currently, firearms applicants must sign a waiver allowing their private doctor to share any information that might preclude them from owning a gun. The waiver also allows the state to share information on anyone who has received mental health treatment from the state through the Department of Health’s Adult Mental Health Division.
Where this mental health check falls short, Armitage said, is with people who have been treated by private sector mental health providers.
Green talked about the possibility of setting up a task force to study ways to strenghten the mental health background check. The committee deferred voting on the bill until Monday afternoon.