Does the federal Brady Act force a state mental health agency to give gun-buyer records to police?

Plain-English summary

When the federal Brady Handgun Violence Prevention Act took effect, it told local law enforcement to check whether a would-be handgun buyer was legally barred from owning one, including anyone who had been "adjudicated as a mental defective" or "committed to any mental institution." The Commissioner of the Texas Department of Mental Health and Mental Retardation asked the Attorney General a pointed question: did the Brady Act require the department to hand its confidential client records over to police running those checks? The commissioner asked specifically about clients who could consent, clients with court-appointed guardians, and clients who had been court-committed and could neither consent nor had a guardian.

The office answered no. The Brady Act did not require or authorize the department to disclose records that state law otherwise kept confidential. The key was a single word in the statute. The Brady Act directed officers to make "reasonable efforts" to verify eligibility, "including research in whatever State and local recordkeeping systems are available." The office read "available" to mean available under existing law, and found nothing in the Brady Act that converted otherwise-unavailable, confidential records into "available" ones. In other words, the Brady Act set a duty for officers to look at what they could already lawfully see; it did not pry open records that state confidentiality law kept shut.

The office reinforced the point with the structure of the Brady Act itself. A different provision (section 103(e) of the public law) expressly let the U.S. Attorney General obtain firearms-eligibility information from federal agencies "notwithstanding any other law." Congress knew how to override other confidentiality laws when it wanted to, and it did not give local officers doing Brady research that same override. The office also noted that the Brady Act's interim five-day waiting period and the contemplated national background-check system were tied to a 1998 deadline, and that for identifying mentally ineligible buyers, Congress had so far only ordered a study.

That left the department's records governed by the usual confidentiality rules: chapter 595 of the Health and Safety Code (mental retardation records), chapter 611 (mental health records), federal rules for chemical-dependency records in 42 C.F.R. Part 2, and the department's own detailed regulations. Those laws allow release in defined situations, with the client's consent, by court order on a showing that the need outweighs the harm, or when a professional determines there is a probability of imminent injury, but the Brady Act by itself did not add a new path. Because the answer turned on that threshold point, the office did not work through each category of client the commissioner listed, and it was careful to say it was not deciding which particular records were or were not available under state law.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Brady Act framework has changed substantially since 1995. The interim scheme the opinion describes (the five-day wait and local-officer research) was temporary and tied to a 1998 deadline; it was overtaken by the National Instant Criminal Background Check System (NICS), and federal courts addressed the constitutionality of the interim local-officer mandate. Federal and state record-confidentiality laws (including 42 C.F.R. Part 2 and the Health and Safety Code chapters cited here) and the department's structure and rules have all been amended and renumbered over the years. Read this page for the office's 1995 reasoning, and verify current federal and Texas law before relying on any specific rule.

What the opinion meant at the time

For the Department of Mental Health and Mental Retardation (the requestor): The opinion told the department it did not have to open its confidential client records to police performing Brady background checks. Its existing confidentiality obligations under state and federal law continued to govern, and the Brady Act added no new disclosure requirement.

For law enforcement running Brady checks: The opinion read the Brady Act's "available records" research duty narrowly. Officers were to research records they could already lawfully access; the act did not entitle them to confidential mental health records that state law shielded.

For clients of the department and their families: The opinion confirmed that the federal gun-check law did not strip away the confidentiality protections in the Health and Safety Code or the federal chemical-dependency rules. Disclosure still required a recognized basis under those laws, such as consent, a court order, or a professional's finding of a threat of injury.

Common questions

Did the Brady Act force Texas to release mental health records for gun checks?
No. Under this 1995 opinion, the Brady Act did not require or authorize the state mental health agency to disclose records that were otherwise confidential and unavailable under state law.

What did "research in available records" mean under the Brady Act?
The office read "available" to mean records officers could already access lawfully. The Brady Act did not make otherwise-confidential records "available"; it only directed officers to research the ones that already were.

What law kept the records confidential instead?
Texas Health and Safety Code chapter 595 (mental retardation records) and chapter 611 (mental health records), federal rules for chemical-dependency records (42 C.F.R. Part 2), and the department's own regulations. These permit disclosure only in defined circumstances.

When could the records be disclosed?
The opinion noted records might be available with the client's consent, by a court order finding the need outweighs the harm, or when a professional determines there is a probability of imminent physical injury to the patient or others, among other defined situations, but not simply because of a Brady check.

Did the opinion say whether any particular record was available?
No. The office expressly declined to decide which specific records were or were not available to officers under state law, because the threshold answer resolved the question.

Background and statutory framework

The Brady Act, adopted in 1993 (Pub. L. 103-159), amended the federal firearms laws in 18 U.S.C. § 922. It provided that, before transferring a handgun, a licensed transferor had to notify the chief law enforcement officer of the transferee's residence and, absent earlier word that the transfer was lawful, could not complete it until five days passed without notice that the transferee's receipt or possession would violate federal, state, or local law (18 U.S.C. § 922(s)(1)(A)). Preexisting law in section 922 made it unlawful for certain persons to receive or possess firearms in or affecting commerce, including anyone who "has been adjudicated as a mental defective or ... has been committed to any mental institution" (18 U.S.C. § 922(g)). Subsection (s)(2) directed the chief law enforcement officer to make a reasonable effort to determine within five business days whether receipt or possession would be unlawful, "including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General."

That national system did not yet exist. The public law required the U.S. Attorney General to develop a national criminal background check system by November 30, 1998, and for identifying other ineligible persons (like the mentally ineligible buyers of concern here) Congress had directed only a study (Pub. L. No. 100-690, § 6213). So the live issue was whether the department's records were "available" to officers doing subsection (s)(2) research.

Texas confidentiality law supplied the backdrop. Health and Safety Code section 595.001 makes mental retardation program records confidential, disclosable only as authorized by sections 595.003 and 595.004 (consent, or a person obtaining his own records), with section 595.005(d) allowing disclosure by court order on a good-cause showing that the need outweighs the injury. Chapter 611 ("Mental Health Records") makes a professional's patient records confidential under section 611.002, disclosable only as provided by sections 611.004 and 611.0045; section 611.004(a) allows disclosure to a governmental agency where required or authorized by law, and to medical or law enforcement personnel where the professional determines there is a probability of imminent physical injury or immediate mental or emotional injury. Federal regulations for chemical-dependency records (42 C.F.R. Part 2, under 42 U.S.C. §§ 290dd-3 and 290ee-3) bar disclosure without consent except for emergencies, audit and research, or court order. The department had adopted detailed rules in 25 T.A.C. chapter 403, dividing records into mental health, mental retardation, and chemical dependency categories.

Against that backdrop, the office held the threshold question was dispositive: the Brady Act did not make otherwise-unavailable records "available." It pointed out that Congress had given the U.S. Attorney General an express "notwithstanding any other law" power to pull eligibility information from federal agencies (section 103(e) of Pub. L. 103-159) but had given local officers no such override. The office added, in a footnote, that this reading also spared the department from having to decide which clients had been "adjudicated as a mental defective" or "committed to any mental institution," terms whose scope is not always clear (citing United States v. Hansel, 474 F.2d 1120 (8th Cir. 1973)).

Citations

Federal authorities discussed:

• Brady Handgun Violence Prevention Act, Pub. L. 103-159 (1993) (including §§ 103 and 103(e)); 18 U.S.C. § 922 (subsections (g), (h), (s)(1)(A), and (s)(2))
• Pub. L. No. 100-690, § 6213 (study of a system to identify other ineligible persons)
• 42 U.S.C. §§ 290dd-3, 290ee-3; 42 C.F.R. Part 2 (confidentiality of chemical-dependency records)
• United States v. Hansel, 474 F.2d 1120 (8th Cir. 1973) (scope of the term "mental defective")

Texas authorities discussed:

• Health and Safety Code §§ 595.001, 595.003, 595.004, 595.005 (mental retardation records)
• Health and Safety Code §§ 611.002, 611.004, 611.0045 (mental health records)
• Health and Safety Code § 576.005 (confidentiality of mental health facility records)
• 25 T.A.C. ch. 403 (department disclosure rules)
• Attorney General Opinions JM-590 (1986) and JM-838 (1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0353
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0353.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 13, 1995

Mr. Don Gilbert
Commissioner
Texas Department of Mental Health and Mental Retardation
P.O. Box 12668
Austin, Texas 78711-2668

Opinion No. DM-353

Re: Effect of the Brady Handgun Violence Prevention Act on the confidentiality of client records of the Texas Department of Mental Health and Mental Retardation (RQ-731)

Dear Mr. Gilbert:

Your predecessor asks about the effect of the federal Brady Handgun Violence Prevention Act (the "Brady Act") with regard to the disclosure of client records by the Texas Department of Mental Health and Mental Retardation. Your predecessor's specific questions are:

1) Is [the department] required to disclose client-identifying information to law enforcement officers conducting background searches pursuant to the Brady Act?

2) Does the Brady Act require disclosure without consent for the following categories of persons . . . :

a) clients with mental illness or mental retardation who are able to give consent;

b) clients with mental illness or mental retardation who have court-appointed guardians, or

c) clients with mental illness or mental retardation who have been court-committed to a facility under the Mental Health Code and are unable to provide consent and have no legal guardian?

As we will explain in what follows, it is our opinion that the provisions of the Brady Act do not require the department to disclose, to law enforcement officers performing background searches under the Brady Act, mental health records which would not otherwise be available to those officers, that is, the Brady Act does not alter the confidentiality status of such records under state law. We do not understand your predecessor to ask and we therefore do not generally address here whether particular mental health records are or are not available to law enforcement officers under state law.

The Brady Act, adopted in 1993,[1] amended federal firearms laws found in title 18 of the United States Code section 922 by providing among other things that, prior to transferring a handgun, a licensed "transferor" must notify the "chief law enforcement officer" of the place of residence of the transferee, and, unless notified in the meantime by the law enforcement officer that the transfer is lawful, may not complete the transfer until five days have elapsed without the transferor's being notified by the law enforcement officer that the "receipt or possession of the handgun by the transferee would violate federal, State, or local law." Id. 18 U.S.C. § 922(s)(1)(A). Preexisting law in title 18 of the United States Code, section 922, makes it unlawful for a person to "receive any firearm . . . transported in interstate commerce or foreign commerce," id. subsec. (h), or "possess [any firearm] in or affecting commerce" if among other things he "has been adjudicated as a mental defective or . . . has been committed to any mental institution." Id. § 922(g).[2]

Subsection (s)(2) of 922 provides:

A chief law enforcement officer to whom a transferor has provided notice . . . shall make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General. [Emphasis added.]

The "national system" referred to in subsection (s)(2) has not yet been developed. Section 103 of the public law adopting the Brady Act requires the United States Attorney General to develop a national criminal background check system for purposes of the Brady Act requirements by November 30, 1998. (It is perhaps because of these plans that, by its own terms, section (s)(1)'s requirement of a five-day waiting period applies only until the 1998 date.) However, with regard to a national system to identify other persons ineligible to purchase firearms, such as the persons about whom your predecessor is concerned, Congress has so far only directed the Attorney General to conduct a study. See Pub. L. No. 100-690, § 6213. Thus, the focus of his concern is the availability of your department's records to law enforcement officers performing research under subsection (s)(2). In this regard, he refers to the provisions of chapters 595 and 611 of the Health and Safety Code.

Section 595.001 provides that "[r]ecords of the identity, diagnosis, evaluation, or treatment of a person that are maintained in connection with the performance of a program or activity relating to mental retardation are confidential and may be disclosed only for the purposes and under the circumstances authorized under section 595.003 and 595.004." (Emphasis added.) Section 595.003, as pertinent here, permits, subject to department rules, disclosure of a record with the consent of "the person about whom the record is maintained," his parent if he is a minor, or his guardian if he has been adjudicated incompetent. Section 595.004 permits a person to obtain his own records, unless the responsible professional determines it is not in the person's best interest, or a parent if the person is a minor, or a guardian. Notably, section 595.003 expressly prohibits exchanges of records between governmental agencies except as necessary to deliver services to clients or obtain payment. Subsection (d) of section 595.005, however, does permit disclosure of all or parts of records "[i]f authorized by an appropriate order of a court of competent jurisdiction" upon application showing good cause, where the court has determined the need for disclosure outweighs the injury to the subject. Section 595.005 provides other exceptions to the section 595.003 consent requirements, but except for subsection (d) thereof they do not appear to be relevant here.

Health and Safety Code chapter 611, "Mental Health Records," provides, in section 611.002, that "records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential" and may be disclosed only as provided by sections 611.004 and 611.0045. Section 611.0045 provides for the release to a patient or his parent, guardian, or designee, of the patient's own records. Section 611.004 authorizes disclosure to various persons or entities, for example audits or "research" (where the records are deidentified), payment purposes, legislative inquiries; perhaps pertinent here are subsections (a)(1) and (2) which allow a professional to disclose records to "a governmental agency if the disclosure is required or authorized by law" and, "to medical or law enforcement personnel if the professional determines there is a probability of imminent physical injury by the patient to the patient or others or there is a probability of immediate mental or emotional injury to the patient."

In addition to chapters 595 and 611 of the Health and Safety Code, your predecessor also refers to federal regulations pertaining to records of clients receiving chemical dependency services, found in title 42 of the Code of Federal Regulations, Part 2. These regulations, adopted under title 42 of the United States Code, sections 290dd-3 and 290ee-3, prohibit record disclosure absent patient consent except to medical personnel in emergencies, for audit and scientific research purposes, or pursuant to court order. Section 2.64(d) of these regulations permits a court to order disclosure where the information is not otherwise available and the public interest outweighs injury to the patient. We understand, too, that other provisions of law regarding confidentiality of records may be implicated by the concerns your predecessor raises. See, e.g., Health & Safety Code § 576.005 (confidentiality of records of a mental health facility).

Reciting the above-referenced statutes and regulations as their authority, the department has adopted extensive rules with regard to disclosure of "client-identifying information" for the use of its staff and the public. 25 T.A.C. ch. 403, subch. K. The rules appear to aim at comprehensiveness. We do not understand your predecessor to raise concerns as to the validity of these rules, and we assume their legal adequacy for purposes of this opinion. The rules essentially break down department records into three types, those of clients receiving "mental health services," "mental retardation services" and "chemical dependency services," and provide for disclosing or withholding records for each type depending on whether adequate consent to release them has been obtained.

We believe the threshold issue to all the questions your predecessor presents is whether the Brady Act requires or authorizes disclosure of information to a law enforcement officer performing the subsection (s)(2) research where disclosure would otherwise be prohibited. In our opinion, the Brady Act does not have such effect. The act directs law enforcement officers to make "reasonable efforts" to determine the eligibility of individuals to obtain handguns, "including research in whatever State and local recordkeeping systems are available." We find nothing in the Brady Act which purports to alter whether given state or local records are "available" for purposes of the act, that is, to make otherwise unavailable records "available" for the law enforcement officers performing the research under the act.

Notably, another provision of the Brady Act, section 103(e) of Public Law No. 103-159, expressly permits the Attorney General, "[n]otwithstanding any other law," to obtain "from any department or agency of the United States" information on persons for whom receipt of a firearm would be unlawful. Presumably, Congress could have chosen to afford local law enforcement officers carrying out research under the act similar authority to obtain records "notwithstanding other law." It did not.

Of course department records sought by law enforcement officers performing Brady Act research may in certain cases be available to them under existing state law and regulations, for example, where there is the requisite consent, where a court orders disclosure, or where a "professional" determines that there is a threat of injury to the client or others. See, e.g., Health & Safety Code §§ 595.003, .005, 611.004(a)(2). But again, we do not believe the Brady Act in itself makes otherwise unavailable records of the department "available" to law enforcement officers for purposes of their performing the research required by the act. In view of this determination, we do not think it necessary to respond specifically to the various permutations in which your predecessor presents his questions.

SUMMARY

The federal Brady Act, in directing certain law enforcement officers to research "available" records in order to determine lawfulness of a person's obtaining a handgun, does not require or authorize the Department of Mental Health and Mental Retardation to disclose client records which are otherwise confidential and unavailable to such officers under state law. This opinion does not address which particular records are or are not available to such officers under state law.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General

[1] Act of Nov. 30, 1993, Pub. L. 103-159, tit. I, 1993 U.S.C.C.A.N. (107 Stat.) 1536.

[2] The provisions of subsection (g) were originally adopted by Pub. L. No. 90-351, Title IV, § 902, June 19, 1968, 82 Stat. 228, as amended by Pub. L. No. 90-618, Title I, Oct. 22, 1968, 82 Stat. 1216.

[3] Confidential records may sometimes lawfully be shared between governmental entities. See, e.g., Attorney General Opinion JM-590 (1986). We would also note specifically with reference to the confidentiality exception in section 611.004(a)(1) of the Health and Safety Code, referenced in your predecessor's request, which section allows a professional to disclose records to "a governmental agency if the disclosure is required or authorized by law," that for the reasons stated above we do not believe the Brady Act in itself operates either to "require" or "authorize" disclosure within the meaning of section 611.004(a)(1). See, e.g., Attorney General Opinion JM-838 (1988). While the Brady Act may "require" or "authorize" a law enforcement officer to research "available" records, it cannot, we think, be read to "require" or "authorize" the department to disclose them. Cf., e.g., Hum. Res. Code § 48.0385 (Department of Human Services "shall have access" to records necessary to perform a review of duties under chapter 48, protective services for the elderly).

[4] We note that there are other reasons as well. That the Brady Act does not make otherwise unavailable records "available," to the extent that they are records of someone who "has been adjudicated as a mental defective or who has been committed to a mental institution," relieves the department of having to determine which records fall into those categories. It may not be immediately apparent under state law who should be considered as having been "adjudicated as a mental defective" or "committed to any mental institution" under the Brady Act. See, e.g., United States v. Hansel, 474 F.2d 1120 (8th Cir. 1973) (scope of term "mental defective").