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Thread: FOIA filed for VA State Police Point of Contact (POC) Information

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    Regular Member Thundar's Avatar
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    FOIA filed for VA State Police Point of Contact (POC) Information

    The Virginia State Police collect $2 for every background check the conduct, even though they are not supposed to for Curio and Relics. Cite: Code of VA 18.2 308 2:2 J1 and L.

    Tried to get it resolved and got the run around. Submitted a FOIA today to view the POC agreement between the FBI and the Virginia State Police.

    Here it is:

    21 December 2010
    xxxxxxxxxx
    xxxxxxxxxx
    xxxxxxxxxx

    COL Steven Flaherty
    Superintendent, Virginia State Police
    PO Box 27472 Richmond, VA 23261
    Fax: (804) 674-2936

    Subject: Freedom of Information Act Request

    Background

    I have recently received my Federal Firearms License as well as my Dealer Identification Number from the Virginia State Police. While reading the Virginia Procedures Manual for Firearms Dealers I learned that a Virginia Criminal History Record Information (CHRI) Check is not required for the disposition of Curio and Relic Firearms (as described in the Code of Virginia). The Code of Virginia also exempts to holders of Curio and Relic Federal Firearms Licenses all dispositions of firearms (not just curio and relic dispositions).

    I attempted to obtain from the FBI the ability to conduct NICs checks for these Curio and Relic exemptions to the Code of Virginia. The FBI was adamant that Virginia was a full Point of Contact (POC) state, and that Virginia dealers were required to use the Virginia State Police for all firearms transactions, as the State Police had agreed to act in that capacity for Virginia.

    I contacted the Virginia Firearms Transaction Center at (804) 674-2292 on 17 December 2010 to inquire about processing NICs checks as the POC. I asked for guidance about Curio and Relics and was told that background checks were not required. I told them that Federal Checks were required, that these checks could only be accomplished by the Virginia State Police and that the Background Check Fee of $2 could not be collected for such background checks. The supervisor put me on hold for 20 minutes, told me that I would have to contact the ATF and ended the phone call. I tried contacting the ATF as your FTC supervisor suggested, but of course this advice was useless as the FBI, not the ATF, conducts NICs checks.

    I now wish to examine the Point of Contact (POC) agreement referenced by the FBI to determine whether the FBI is at fault for denying Virginia Federal Firearms Licensed (FFL) Dealers access to the NICs hotline, or if the Virginia State Police entered into an agreement with the FBI that exceeded their statutory authority and have been collecting the CHRI fee for Curio and Relic transactions in violation of the Code of Virginia.

    Request

    1) POC Establishment Document. Please provide a copy (electronic if available) of the original Point of Contact (POC) agreement, memorandum or other document between Virginia or the Virginia State Police and the US Department of Justice, the FBI or any other federal entity which established the Virginia State Police as the Virginia Point of Contact for NICS background checks.

    2) POC Update Document(s). Please provide a copy of any updates, revisions, new or superseding POC establishment/ re-establishment/new or update documents (agreements, memorandums or other such documents).

    Instructions

    1) This is a very narrow request for the POC establishment agreement and any updates. This is not a request for operating procedures or requirements, technical data exchange requirements or security requirements.

    2) I believe that the documents requested would be readily available from the State Police Firearms Transaction Center, as these document(s) are a prerequisite for the Firearms Transaction Center to act as a POC.

    3) If the document(s) are available electronically, please deliver them by e-mail to xxxxxxxxxxxx@xxxxxl.com

    4) If the cost for delivering the documents exceeds $10.00 please contact me at the above e-mail address with the estimated cost so that I may consider refining my request in order to minimize the expense.

    5) Thank you for your support of open government.
    Last edited by Thundar; 12-21-2010 at 12:47 PM.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    NICS (or whomever you use for a call-in) is only required for dealers. As a Type 03 FFL (i.e., you now hold a C&R FFL) you are not a dealer and thus neither required nor authorized to use the instant check.
    HTH

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by Brutus View Post
    NICS (or whomever you use for a call-in) is only required for dealers. As a Type 03 FFL (i.e., you now hold a C&R FFL) you are not a dealer and thus neither required nor authorized to use the instant check.
    HTH
    I am a dealer. A manufacturer actually. C&R Licensees do not get a Virginia Dealer Identification Number.

    The issue is that Virginia code exempts C&R firearms for everybody. It also exempts those that have a C&R Liccense from the Criminal History Record Information (CHRI) Check for modern firearms. Federal law does not exempt either category (C&R Licensees can only use the license to conduct C&R transactions under Federal Law)

    Virginia law does not grant to the state police the authority to collect the $2 state fee for C&R transactions, yet they still do.

    Virginia State Police blame this inconsistancy on the FBI and the FBI blames it on the Virginia State Police. Somebody is bluffing in this poker game and I want to call using the FOIA.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Regular Member IanB's Avatar
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    Subscribed!

    I love threads about FOIA.

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    Accomplished Advocate peter nap's Avatar
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    Go get em Thundar!

    And good luck. The State Police have more ways to duck, ignore or BS through FOIA's, than any state agency around.

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    Regular Member Repeater's Avatar
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    Hurtin' for money?

    Another opportunity to apply leverage?

    Va. State Police, with 249 vacancies, await funding

    On Jan. 1, Virginia State Police will be down 249 sworn officers. The money is there to pay their salaries, but $52 million in budget cuts since 2006 have held up schools to produce new troopers.

    Gov. Bob McDonnell on Friday asked legislators for funding for three new trooper schools over the next two years to replenish the agency's thinning ranks.
    As a wise(?) man once said:

    "You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before." -- Rahm Emanuel

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    Regular Member riverrat10k's Avatar
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    Good luck Thundar!

    How many people does this affect? If I am reading correctly, how many C and R holders are there in VA?

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by riverrat10k View Post
    How many people does this affect? If I am reading correctly, how many C and R holders are there in VA?
    If it only saves one livelyhood.

    Seriously, even if there was only one, if the VSP is doing wrong they need to stop and start doing right.

    Something about camels putting their noses on slippery slopes, I think.

    stay safe.

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    Are you saying that FBI NICS is saying that someone buying a curio or relic has to have a background check done.
    or
    Are you saying that you want to do a background check on someone that you are selling a curio/relic to.

    I was under the impression that someone buying a curio/relic did not have to have the background check done,
    unless the delaer wants to make that person do so. If this is so then i would think you would have to pay for the check being done since you requested it to be done when it was not needed.

    I'm just trying to figure out what your question is here it seems to go back and forth.

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    Quote Originally Posted by skidmark View Post
    If it only saves one livelyhood.

    Seriously, even if there was only one, if the VSP is doing wrong they need to stop and start doing right.

    Something about camels putting their noses on slippery slopes, I think.

    stay safe.
    Absolutely!

  11. #11
    Regular Member Thundar's Avatar
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    TKD2006, Here is my attempt at an explanation:

    Virginia Law: The Code of Virginia Section18.2 308 2.2 subsection I clearly indicates that the entire section, which includes Virginia Background checks as well as 1 gun a month does not apply to curio and relic firearms, and does not apply to those with a C&R license.

    Federal Law. Federal law is also clear that all firearms transfers require a NICs background check. Antiques (those guns made before 1898) are not firearms under US Code. Exceptions are made between FFLs, including C&R (Collector) Licensees. C&R is only good for no NICs transfer of C&R firearms under federal law.

    So a Virginia check is not needed to sell a new firearm to a C&R Licensee, but a federal NICs check is required. Because of the agreement between the FBI and the Virginia State Police a Virginia FFL Dealer cannot obtain a NICs check. The dealer must get a Virginia background check (which includes a NICs check) and collect the $2 fee from the C&R Licensee.

    If I wish to sell a C&R Firearm to a non-licensee in Virginia then no Virginia check is required, but a federal NICs check is required. Because of the agreement between the FBI and the Virginia State Police a Virginia FFL Dealer cannot obtain a NICs check. The dealer must get a Virginia background check (which includes a NICs check) and collect the $2 fee from the non-licensee.

    My frustration is that I cannot get a copy of the agreement between the FBI and the Virginia State Police. Either the Virginia State Police signed up for more authority than they were granted, or the FBI is mistaken to exclude Virginia FFLs entirely from the federal NICs system. That is the reason for the FOIA. I want to read the agreement/Memoranum of Understanding or whatever they call the document, to determine who is wrong, and then begin the fight to correct the wrong.

    Until this is sorted out Virginians that have collectors licenses or buy C&R firearms will continue to be charged $2 for Virginia Background checks that are not required under Commonwealth law.
    Last edited by Thundar; 12-23-2010 at 12:46 AM.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Thundar you say you are a dealer but do not have a Virginia dealer id number. Do you have a collectors license
    for C&R guns. If this is what you then i found this on the NICS website

    Q: Is the transfer of a firearm by a licensed dealer to a licensed collector subject to the Brady law?
    The Brady law does not apply to the transfer of a curio or relic firearm to a licensed collector. However, a licensed collector who acquires a firearm other than a curio or relic from a licensee would be treated like a non-licensee, and the transfer would be subject to Brady requirements.

    http://www.atf.gov/firearms/faq/brad...ctors-transfer

    I believe Virginia is the same on this.

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    Be prepared to bedazzled by VSP poo poo on this.

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by tkd2006 View Post
    Q:

    The Brady law does not apply to the transfer of a curio or relic firearm to a licensed collector. However, a licensed collector who acquires a firearm other than a curio or relic from a licensee would be treated like a non-licensee, and the transfer would be subject to Brady requirements.

    http://www.atf.gov/firearms/faq/brad...ctors-transfer

    I believe Virginia is the same on this.
    1) Virginia is not the same. The sale of Curio and Relics are not subject to the Virginia Check. FFLs, including Curio and Relic Licensees are not subject to Virginia Checks for all firearms.

    2) We know that a Federal Check (Brady Check) is required for C&R Licensees, unless it is a C&R Firearm. I also know that the sale of a C&R firearm to a non licensee requires a Brady Check.

    3) The Virginia State Police collect $2 for every background check that they collect, even though the Code of Virginia says they only collect $2 for checks required by section 18.2 308 2:2.

    4) The Virginia State Police are the only POC (Point of Contact) for firearms sales in Virginia. That means that FFLs can only obtain Brady Checks through the Virginia State Police.

    5) The FBI can only grant POC status to states or localities as authorized by state law.

    6) Many states are partial POC states. They use the state POC for some transfers, and use the FBI NICs system for others. Partial POC states are usually based upon handgun/long gun division of responsibility with the state doing handgun checks and the FBI doing long gun checks.

    7) The issue is whether the Virginia State Police claimed more authority than they were granted by the legislature and claimed sole POC status, or whether the FBI decided it was too difficult to have a special POC category for Virginia based upon C&R relation and simply declared the VSP as the sole POC. I have contacted both agencies and neither admits any wrongdoing. (Surprise, surprise)

    8) I filed the FOIA to try and find the answers.
    Last edited by Thundar; 12-26-2010 at 02:18 PM.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Regular Member Thundar's Avatar
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    FOIA Answer from the Virginia State Police:

    ...We are in receipt of your Freedom of Information Act request of 21 Dec 2010, requesting a copy of the Memorandum of Understanding or Agreement between the Department of State Police and the FBI concerning Virginia being a Point of Contact (POC) state. We do not have the documents you have requested.

    .......

    //original signed//
    W.S. Flaherty
    Superintendent

    My next FOIA request will be to the US Department of Justice.
    Last edited by Thundar; 01-01-2011 at 11:40 AM.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Quote Originally Posted by Thundar View Post
    FOIA Answer from the Virginia State Police:

    ...We are in receipt of your Freedom of Information Act request of 21 Dec 2010, requesting a copy of the Memorandum of Understanding or Agreement between the Department of State Police and the FBI concerning Virginia being a Point of Contact (POC) state. We do not have the documents you have requested.

    .......

    //original signed//
    W.S. Flaherty
    Superintendent

    My next FOIA request will be to the US Department of Justice.
    why not try contacting FBI NICS anbd seeing what they have since they would be the ones that granted the status.

  17. #17
    Regular Member Thundar's Avatar
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    Quote Originally Posted by tkd2006 View Post
    why not try contacting FBI NICS anbd seeing what they have since they would be the ones that granted the status.
    I have tied several times with no luck. Their attitude is take our word for it. Federal FOIA request inbound. Feds take longer and are more formal than VA FOIA requests.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Quote Originally Posted by Thundar View Post
    FOIA Answer from the Virginia State Police:

    ...We are in receipt of your Freedom of Information Act request of 21 Dec 2010, requesting a copy of the Memorandum of Understanding or Agreement between the Department of State Police and the FBI concerning Virginia being a Point of Contact (POC) state. We do not have the documents you have requested.

    .......

    //original signed//
    W.S. Flaherty
    Superintendent

    My next FOIA request will be to the US Department of Justice.

    Whoa!! That is not a FOIA-compliant response. VA 2.2-3704 gives the only possible responses. "We do not have the documents" is not one of the possible responses.

    They are required to state the documents do not exist, could not be found, or if they know, they are required by the VA FOIA to tell you which state agency does.

    For the moment I would check with the VA AG or the VA Secretary of State. (Recall that it is the AG whose office holds the CCW reciprocity agreements with other states.)

    Then I would complain back at the VSP that they mishandled the response, and give them the Code on their required response.


    2.2-3704.B.3:

    The requested records could not be found or do not exist. However, if the public body that received the request knows that another public body has the requested records, the response shall include contact information for the other public body.

    http://leg1.state.va.us/cgi-bin/legp...0+cod+2.2-3704

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Citizen View Post
    Whoa!! That is not a FOIA-compliant response. VA 2.2-3704 gives the only possible responses. "We do not have the documents" is not one of the possible responses.

    They are required to state the documents do not exist, could not be found, or if they know, they are required by the VA FOIA to tell you which state agency does.

    For the moment I would check with the VA AG or the VA Secretary of State. (Recall that it is the AG whose office holds the CCW reciprocity agreements with other states.)

    Then I would complain back at the VSP that they mishandled the response, and give them the Code on their required response.


    2.2-3704.B.3:

    The requested records could not be found or do not exist. However, if the public body that received the request knows that another public body has the requested records, the response shall include contact information for the other public body.

    http://leg1.state.va.us/cgi-bin/legp...0+cod+2.2-3704
    Nearly every VSP request I send gets a half answer Citizen. One member requested information and they sent VSP logo's.

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    Quote Originally Posted by Thundar View Post
    FOIA Answer from the Virginia State Police:

    ...We are in receipt of your Freedom of Information Act request of 21 Dec 2010, requesting a copy of the Memorandum of Understanding or Agreement between the Department of State Police and the FBI concerning Virginia being a Point of Contact (POC) state. We do not have the documents you have requested.

    .......

    //original signed//
    W.S. Flaherty
    Superintendent

    My next FOIA request will be to the US Department of Justice.
    Are you really shocked by this? They could have claimed a Security exemption to make It sound good. Your next move should be to the FOIA board.

  21. #21
    Regular Member Thundar's Avatar
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    Quote Originally Posted by xdm guy View Post
    Are you really shocked by this? They could have claimed a Security exemption to make It sound good. Your next move should be to the FOIA board.

    To answer your question, I am not really shocked. The original agreement was 20 years ago. Maybe they just can't find the document.

    No, I am not going "soft", I am just not yet ready to throw the VSP under the bus. They have always been very pro-gun in my dealings with them.

    Not having the document could, of course, be a real issue for any future criminal prosecutions on gun transfer charges by VSP.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Quote Originally Posted by peter nap View Post
    Nearly every VSP request I send gets a half answer Citizen. One member requested information and they sent VSP logo's.
    I understand.

    I always recommend Mike's approach--formalize the request. And, quote and cite the exact Code provisions in the request and any follow-up necessitated by evasion on their part. This backs them into a corner and makes it harder for them if you take it to court for a writ of mandamus (a type of court order) to force them to comply.

    I'm not sure if your hesitancy arises from wanting to play nice with VSP, but I'll throw this out there just in case: a state agent has seen tons of official and formal documents. Formalizing the FOI request won't adversely affect a genuinely professional agent. A genuine professional sincerely interested in public service will say to himself, "Hey, now. Here's somebody that knows their stuff and is exercising their First Amendment rights. Cool. I'm gonna do his first." Its hyperbole of course, but you get what I mean.
    Last edited by Citizen; 01-02-2011 at 03:22 PM.

  23. #23
    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by peter nap View Post
    Nearly every VSP request I send gets a half answer Citizen.
    Quote Originally Posted by Citizen View Post
    I understand.

    I'm not sure if your hesitancy arises from wanting to play nice with VSP...........
    Peter hesitant? Maybe devious, sly, circuitous; but can be direct, hard hitting and forthright, but never shy or fainthearted. What you see may not be half of what you get.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Quote Originally Posted by Thundar View Post
    To answer your question, I am not really shocked. The original agreement was 20 years ago. Maybe they just can't find the document.

    No, I am not going "soft", I am just not yet ready to throw the VSP under the bus. They have always been very pro-gun in my dealings with them.

    Not having the document could, of course, be a real issue for any future criminal prosecutions on gun transfer charges by VSP.
    There response smells like a cow pattie and buffalo chips mixed to form a poo pie.You tried playing nice take the gloves off.
    Quote Originally Posted by Citizen View Post
    I understand.

    I always recommend Mike's approach--formalize the request. And, quote and cite the exact Code provisions in the request and any follow-up necessitated by evasion on their part. This backs them into a corner and makes it harder for them if you take it to court for a writ of mandamus (a type of court order) to force them to comply.

    I'm not sure if your hesitancy arises from wanting to play nice with VSP, but I'll throw this out there just in case: a state agent has seen tons of official and formal documents. Formalizing the FOI request won't adversely affect a genuinely professional agent. A genuine professional sincerely interested in public service will say to himself, "Hey, now. Here's somebody that knows their stuff and is exercising their First Amendment rights. Cool. I'm gonna do his first." Its hyperbole of course, but you get what I mean.
    I thought a FOIA was formal request?

  25. #25
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by xdm guy View Post
    There response smells like a cow pattie and buffalo chips mixed to form a poo pie.You tried playing nice take the gloves off.

    I thought a FOIA was formal request?
    It depends on how it's presented. Under the state policy and procedure, any communication submitted in writing is a formal request and any verbal communication is an informal request. Rule 5.4 if memory serves me.

    You can make an FOIA request on the phone or in person...then stand around for 5 days

    I used to have people come in and say, I want to look through the case files! I'd let them. The Director always bitched but he'd bitch about a rainy day during a drought.

    Formalized or not, the law has no teeth and the VSP count on the fact that 99% of the people won't spend fifty bucks to get it in front of a Judge.

    Now McDonnell wants to get rid of the FOIA Commission as part of his streamlining program.
    That will make it even worse getting nonjudicial compliance.

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