Your 4473

[kilimanjaro]

The forms are required by law, kept by the FFL by law, subject to Federal scrutiny at will, and turned over to the government on termination of the FFL or death of the licensee. Those are Federal records, if you ask me.

If not, they are private records and can be disclosed on Monday, but when the FFL dies that night, they're Federal on Tuesday. I don't think you can apply two standards to the same piece of paper, can you?

 

[Frank Ettin]

The forms are required by law, kept by the FFL by law, subject to Federal scrutiny at will, and turned over to the government on termination of the FFL or death of the licensee. Those are Federal records, if you ask me....

But you're not the one who would be called upon to answer the question. It would be a decision for a judge; and a judge will read the statutes I've cites and answer that they are not federal records.

His opinion counts. Yours does not.

...If not, they are private records and can be disclosed on Monday, but when the FFL dies that night, they're Federal on Tuesday. I don't think you can apply two standards to the same piece of paper, can you?

Nonetheless, under the statutes I've cited they are not federal records while they are maintained by the FFL. When they come into the possession of ATF they become federal records subject to the Privacy Act of 1974.

You apparently can't understand that, but it doesn't matter. Your lack of understanding doesn't change reality.

 

[Frank Ettin]

Not an idiot. He was very good on the law....

He doesn't seem to be very "good on the law" if he's planning to commit a federal crime once his FFL expires/lapses. And you're really not helping him by telling the world that he's planning to commit a federal crime.

 

[Tom Servo]

Your old dealer is an idiot.

And a potential felon. That's not the first time I've heard someone claim they'd suffer an "unintentional fire," and it doesn't bode well for the person saying it.

 

[Ruger480]

"Agency" is defined as (5 USC 551(1)):
Quote:
(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include— ...

So no, the Privacy Act of 1974 does not apply to 4473s in the possession of a dealer.

Well...a Federal Firearms License holder has the authority to sell firearms.

authority

n. permission, a right coupled with the power to do an act or order others to act. Often one person gives another authority to act, as an employer to an employee, a principal to an agent, a corporation to its officers, or governmental empowerment to perform certain functions. There are different types of authority including "apparent authority" when a principal gives an agent various signs of authority to make others believe he or she has authority, "express authority" or "limited authority" which spell out exactly what authority is granted (usually a written set of instructions), "implied authority" which flows from the position one holds, and "general authority" which is the broad power to act for another

Authority granted by the federal government in the form of an Federal Firearms License. It's looking more and more like the Privacy Act might actually apply here.

Legal definition of License:

license

n. 1) governmental permission to perform a particular act (like getting married), conduct a particular business or occupation, operate machinery or vehicle after proving ability to do so safely, or use property for a certain purpose. 2) the certificate that proves one has been granted authority to do something under governmental license. 3) a private grant of right to use real property for a particular purpose, such as putting on a concert. 4) a private grant of the right to use some intellectual property such as a patent or musical composition. (See: licensee, licensor)

The holding of an FFL in essence creates an agency as defined by (5 USC 551(1)) by granting that license holder the authority to legally sell firearms.

 

[Frank Ettin]

"Agency" is defined as (5 USC 551(1)):
Quote:
(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include— ...

So no, the Privacy Act of 1974 does not apply to 4473s in the possession of a dealer.

Well...a Federal Firearms License holder has the authority to sell firearms.

authority

n. permission, a right coupled with the power to do an act or order others to act. Often one person gives another authority to act, as an employer to an employee, a principal to an agent, a corporation to its officers, or governmental empowerment to perform certain functions. ...

Authority granted by the federal government in the form of an Federal Firearms License. It's looking more and more like the Privacy Act might actually apply here.

Legal definition of License:

license

n. 1) governmental permission to perform a particular act (like getting married), conduct a particular business or occupation, operate machinery or vehicle after proving ability to do so safely, or use property for a certain purpose. ...

The holding of an FFL in essence creates an agency as defined by (5 USC 551(1)) by granting that license holder the authority legally sell firearms.

Since you did not read the entire applicable law (5 USC 551, et seq) your analysis is incorrect. Let's look at why.

1. You have looked at the definition of "authority" as in an authorization to do something. That is not the way the word is used in 552a. The definition refers not to "authority" but to "each authority", i. e., authority as a form of entity or organization. The word "authority" in that context means:

   Governmental entities that have been created and delegated with official responsibilities, such as a county highway authority....

   Furthermore, applying your definition any person, entity or business holding any kind of a license issued by the federal government would be an "agency" for the purposes of the Privacy Act. So pilots, who are licensed by the federal government would be agencies for the purpose of the Privacy Act, as would television and radio stations, ham radio operators, businesses engaged in the commercial transportation of animals across state lines, businesses engaged in commercial fishing, and persons engaged in the manufacture or distribution of alcoholic beverages, among others. As will be shown below, that would be preposterous.
   
   
2. When one looks at the range of obligations and responsibilities imposed on an agency under the applicable law, the term "agency" for the purposes of the Privacy Act could not possibly include private entities simply because they hold a license from the federal government authorizing them to do what they do. For example:
   
   
   • See 5 USC 552(a)(1):

     (a) Each agency shall make available to the public information as follows:
     

     (1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—
     
     (A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
     
     (B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
     
     (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
     
     (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
     
     (E) each amendment, revision, or repeal of the foregoing.​

     
     
   • See also 552(a)(2):

     (2) Each agency, in accordance with published rules, shall make available for public inspection and copying—
     
     

     (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
     
     (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;
     
     (C) administrative staff manuals and instructions to staff that affect a member of the public;
     
     (D) copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and
     
     (E) a general index of the records referred to under subparagraph (D);​

     
     
   • Let's take a more detailed look at the non-disclosure provisions, 5 USC 552a(b):

     (b) Conditions of Disclosure.— No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be—
     
     

     (1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;
     
     (2) required under section 552 of this title;
     
     (3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section;
     
     (4) to the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13;
     
     (5) to a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
     
     (6) to the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;....​

     
     
   • And it would certainly be interesting if any person or business licensed to do something by the federal government were required to do the following required of an agency under the Privacy Act (5 USC 552a(d)):

     (d) Access to Records.— Each agency that maintains a system of records shall—
     
     

     (1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual’s record in the accompanying person’s presence;
     
     (2) permit the individual to request amendment of a record pertaining to him and—
     
     

     (A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request, acknowledge in writing such receipt; and
     
     (B) promptly, either—
     
     

     (i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or
     
     (ii) inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official;...​

     
     
   • And if it is alleged that an agency failed to comply with certain requirements under the Privacy Act (5 USC 552a(g)):

     (g)
     
     

     (1) Civil Remedies.— Whenever any agency
     
     

     (A) makes a determination under subsection (d)(3) of this section not to amend an individual’s record in accordance with his request, or fails to make such review in conformity with that subsection;
     
     (B) refuses to comply with an individual request under subsection (d)(1) of this section;
     
     (C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or
     
     (D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual,​

     
     the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection....​

     
     
   • And let's not forget that if an FFL or a TV station or a pilot is an "agency" under the Privacy Act by virtue of having a federal license, he/she/it must (5 USC 552(e)):

     (e)
     
     (1) On or before February 1 of each year, each agency shall submit to the Attorney General of the United States a report which shall cover the preceding fiscal year and which shall include—
     
     

     (A) the number of determinations made by the agency not to comply with requests for records made to such agency under subsection (a) and the reasons for each such determination;
     
     (B)
     
     

     (i) the number of appeals made by persons under subsection (a)(6), the result of such appeals, and the reason for the action upon each appeal that results in a denial of information; and
     
     (ii) a complete list of all statutes that the agency relies upon to authorize the agency to withhold information under subsection (b)(3), the number of occasions on which each statute was relied upon, a description of whether a court has upheld the decision of the agency to withhold information under each such statute, and a concise description of the scope of any information withheld;​

     
     (C) the number of requests for records pending before the agency as of September 30 of the preceding year, and the median and average number of days that such requests had been pending before the agency as of that date;...​

Assuming, guessing or trying to "puzzle things out" will not work. One needs to do a proper job of research.

 

[str8tshot]

But you're not the one who would be called upon to answer the question. It would be a decision for a judge; and a judge will read the statutes I've cites and answer that they are not federal records.

His opinion counts. Yours does not.

Nonetheless, under the statutes I've cited they are not federal records while they are maintained by the FFL. When they come into the possession of ATF they become federal records subject to the Privacy Act of 1974.

You apparently can't understand that, but it doesn't matter. Your lack of understanding doesn't change reality.

You are correct Counselor, but I think a cogent argument by an experienced and proficient attorney can be leveled for the FFL acting as an agent of the governmental entity; therefore, bound by the same rules as that entity. Each Judge will interpret the letter of the law, its intent, and precedent to make his own determination. I would not want to hang my hat on that peg without doing case law research, but I can see the merit in the argument.

 

[Frank Ettin]

...I think a cogent argument by an experienced and proficient attorney can be leveled for the FFL acting as an agent of the governmental entity; therefore, bound by the same rules as that entity....

Then make your argument and let us see it.

In any case, nothing in the Privacy Act can be read as extending its reach to independent agents of an agency. Try to make the connection. I seriously doubt that you could even come close.

 

[Snyper]

The intent behind this question is find out how many people believe that once they leave store, their form is secure and won't be seen by anybody but government law enforcement.

Anyone who thinks that is sadly mistaken unless you think all gun shop employees are Govt LEO's

 

[TimSr]

Please find and cite some legal authority confirming that.

That's speculation...

I believe I qualified my statement by specifically stating that it came from my best recollection when I had an FFL.

I'll research case law, and spend my time translating legalese when I am called upon to argue the case in a court of law. Kind of foolish for me to attempt to practice law in an internet discussion forum.

If you go back and read the OP's orginal question, he asked how many others had the same impression as himself. I clearly answered.

 

[Tom Servo]

You are correct Counselor, but I think a cogent argument by an experienced and proficient attorney can be leveled for the FFL acting as an agent of the governmental entity

That's quite a stretch. Neither the application, or anything in the application process for an FFL, states or implies that the proprietor is acting as an agent of the government. Their conduct is regulated, but nothing is authorized.

If such an argument has been successfully made, I have not seen it.

 

[Frank Ettin]

...Neither the application, or anything in the application process for an FFL, states or implies that the proprietor is acting as an agent of the government....

There's an easy way to see that this "agent of the government" notion is a non-starter. Just look at the "Rights, Duties, and Liabilities Between Principal and Agent" (footnotes omitted):

An agency is the creation of a contract entered into by mutual consent between a principal and an agent. By agency, a principal grants authority to an agent to act on behalf of and under the control of the principal. The relation between a principal and an agent is fiduciary and an agent’s actions bind the principal. The law of agency thus governs the legal relationship in which an agent deals with a third party for his/her principal.

An agent owes certain duties towards his/her principal and a principal owes certain duties towards his/her agent. The scope of an agent’s duty to the principal is determined by:

• the terms of the agreement between the parties; and
  
  
• extent of the authority conferred and the obligations of loyalty to the interests of the principal.

An agent’s primary duties are:

• act on behalf of and be subject to the control of the principal;
  
  
• act within the scope of authority or power delegated by the principal;
  
  
• discharge his/her duties with appropriate care and diligence; and
  
  
• avoid conflict between his/her personal interests

Other duties of an agent include:

• not to acquire any material benefit from a third party in connection with transactions conducted or through the use of his/her positions as an agent;
  
  
• to act with the care, competence, and diligence normally exercised by agents in similar circumstances;
  
  
• to take action only within the scope of the his/her actual authority;
  
  
• to comply with all lawful instructions received from the principal and persons designated by the principal concerning agent’s actions on behalf of the principal;
  
  
• to act reasonably and to refrain from conduct that is likely to damage the principal’s enterprise;

An agent is liable to a principal when he/she acts without actual authority, but with apparent authority. An agent is liable to indemnify a principal for loss or damage resulting from his/her act.

A principal owes certain contractual duties to his/her agent. Correlative with the duties of an agent to serve a principal loyally and obediently, a principal’s primary duties to his/her agent include:

• To compensate the agent as agreed; and
  
  
• To indemnify and protect the agent against claims, liabilities, and expenses incurred in discharging the duties assigned by the principal.

Because of the fiduciary relationship, a principal owes his/her agent a duty of good faith and fair dealing. However, a principal can be relieved of contractual obligations by an agent’s prior breach of contract.

A principal has a duty to act in accordance with the express and implied terms of any contract between a principal and an agent.

When an agent acts within the scope of actual authority, the principal is liable to indemnify the agent for payments made during the course of the relationship irrespective of whether the expenditure was expressly authorized or merely necessary in promoting the principal’s business.

Anyone think that accurately describes the relationship between an FFL (or any business requiring a federal license to operate) and the federal government?

 

[tyme]

Frank, you mentioned SSNs are optional. That may be true, but what practical difference does it make? Some 4473s have them, so does the FFL have to vet their stack of 4473s and hold back the ones with SSNs before deciding to voluntarily hand them over to someone else, and that makes the voluntary disclosure acceptable?

Even the rest of the form including birthdate and name/address can aid identity theft without the SSN. Knowledge that a person bought a gun, or even has a gun, also should be private; that's one of the reasons we all get so upset when some liberal newspaper decides to out CHL/CCW holders based on states' foolish decisions to make CHL lists public records.

Is the FFL at risk of being sued for breach of privacy or some other tort if they release 4473s without a court order?

 

[4thPoint]

For the "It's a Privacy Act matter" minded folks.... Exactly what information contained on the 4473 is protected under the Privacy Act?

May I suggest reading a 4473 and seeing? (hint, hint, it is by no means every entry on the form.)

The good news, is that every FFL dealer I've spoken to (and there have been quite a few over the years, is quite adamant about keeping your information private, even at the risk of losing potential special deals and discounts (as we see in this case, btw.)

 

[Frank Ettin]

Frank, you mentioned SSNs are optional. That may be true, but what practical difference does it make? ...

Even the rest of the form including birthdate and name/address can aid identity theft without the SSN. Knowledge that a person bought a gun, or even has a gun, also should be private; ...

Is the FFL at risk of being sued for breach of privacy or some other tort if they release 4473s without a court order?

The underlying issue is whether or to what extent the FFL has a legally recognized duty to protect the information in the 4473 against unauthorized disclosure.

A legal duty could arise from a statute expressly prohibiting certain disclosures (perhaps subject to certain conditions or with certain exceptions). So far we've seen statutes from only two States providing limited or unclear protection of the 4473. Absent an applicable statute, the recourse for someone aggrieved by an FFL's allegedly wrongful disclosure of information on a 4473 seems to be pretty much limited to a lawsuit for invasion of privacy.

Whether someone could state a good invasion of privacy claim against an FFL for disclosure of 4473 information will depend on a number of factors, including the information disclosed, the circumstances of, and purposes for, disclosure, and whether any actual injury can be shown to have resulted from such disclosure.

Exactly what happened, how it happened and why it happened will make a difference. So an FFL standing on the street corner distributing photocopies of random 4473s to passersby would be one thing. But allowing a representative of a manufacture to inspect 4473s to audit compliance by the FFL with the terms of a business arrangement between the FFL and manufacturer would be another thing.

...For the "It's a Privacy Act matter" minded folks.... Exactly what information contained on the 4473 is protected under the Privacy Act?

A moot point since the FFL is not a government agency and therefore isn't subject to the Privacy Act (see discussion, above).

 

[Ruger480]

Ok...This quote from Tom Servo

Neither the application, or anything in the application process for an FFL, states or implies that the proprietor is acting as an agent of the government. Their conduct is regulated, but nothing is authorized.

Pretty much refutes anything I had in the last 5 posts.

And this from Frank Ettin pretty much sums up the spirit of this thread.

The underlying issue is whether or to what extent the FFL has a legally recognized duty to protect the information in the 4473 against unauthorized disclosure.

A legal duty could arise from a statute expressly prohibiting certain disclosures (perhaps subject to certain conditions or with certain exceptions). So far we've seen statutes from only two States providing limited or unclear protection of the 4473. Absent an applicable statute, the recourse for someone aggrieved by an FFL's allegedly wrongful disclosure of information on a 4473 seems to be pretty much limited to a lawsuit for invasion of privacy.

Whether someone could state a good invasion of privacy claim against an FFL for disclosure of 4473 information will depend on a number of factors, including the information disclosed, the circumstances of, and purposes for, disclosure, and whether any actual injury can be shown to have resulted from such disclosure.

Exactly what happened, how it happened and why it happened will make a difference. So an FFL standing on the street corner distributing photocopies of random 4473s to passersby would be one thing. But allowing a representative of a manufacture to inspect 4473s to audit compliance by the FFL with the terms of a business arrangement between the FFL and manufacturer would be another thing.

But TimSR has the right of it though when he stated:

If you go back and read the OP's orginal question, he asked how many others had the same impression as himself.

As enlightening as this has debate has been (and it has been) all I really wanted to know was who else did not know that the info on their 4473 is not protected.

So. Even though there might not be much more discussion on this, I'd like to ask the moderators not shut it down for a couple more days, in case any more folks care to participate in the poll.