TSA never got OMB approval for “Certification of ID” (Form 415)

In June 2008, the TSA began requiring would-be travelers who didn’t show government-issued ID credentials to fill out and sign — under penalty of perjury — a new “Certification of Identity” form, and answer questions based on the records about them retrieved by a TSA contractor from some commercial data-aggregation company.

Since then, we’ve made a series of FOIA requests to try to obtain the current form, the rules (if any) for its use, and whether the TSA had gotten this collection of information approved by the Office of Management and Budget (OMB), as required by the Paperwork Reduction Act (PRA).

We’ve recently received a response to one of our FOIA requests, filed more than two years ago, which includes the latest version of TSA Form 415 and makes clear that the TSA has never obtained the requisite OMB approval.

In the absence of OMB approval and a valid OMB control number on TSA Form 415, travelers who decline to respond to these questions or fill  out or sign this form cannot be subjected to any government sanctions, including TSA “civil penalties”.

There are several noteworthy features of the latest documents released by the TSA in response to our FOIA request, particularly TSA Form 415 itself and this email thread regarding how the form is used and whether it requires OMB approval.

First, the e-mail correspondence with the FOIA Office to identify records responsive to our request appears to have been completed within a few weeks. Then the TSA sat on the response for more than two years, presumably while waiting for approval from the DHS FOIA “front office”. From responses to our previous requests, we know that the FOIA “front office” has ordered the TSA not to respond to our requests without this approval, even if responses are complete and otherwise ready to go out.

Second, if the TSA’s latest FOIA response to our request for the “most recent version” is to be believed, the version of the “Certification of Identity” currently in use is this TSA Form 415 dated August 2008.

Third, the TSA never even applied for OMB approval for TSA Form 415 or its unnumbered predecessor “Certification of Identity” form, because the office responsible for obtaining OMB approval was led to believe that the form was to be completed by TSA staff, not by travelers (a manifestly implausible claim, since all versions of the form have included a space labeled for the signature of the would-be traveler).

Fourth, the TSA completely misunderstood the statutory criteria for determining when OMB approval is required. Who fills out the form, or whether there even is a paper form (or information is collected by verbal questioning), is completely irrelevant to the definition in the Paperwork Reduction Act of a “collection of information” for which OMB approval is required:

[T]he term “collection of information” … means the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for … answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States….

The consequence is that you aren’t required to complete TSA Form 415 (since it doesn’t have an OMB control number),  you aren’t required to answer any TSA questions (if the same questions are asked of ten or more people), and you can’t be penalized for declining to fill out the form or answer such questions.

7 Responses to “TSA never got OMB approval for “Certification of ID” (Form 415)”

  1. Papers, Please! » Blog Archive » How many people fly without ID? How many are denied the right to fly? Says:

    […] Papers, Please! Challenging ID Demands The Identity Project explores and defends the fundamental American right to move freely around our country and to live without constantly having to prove who we are or why we are here. Home The Issue Who We Are What We Do Secure Flight Featured Cases Policy Analysis Lawyer’s Corner Take Action Press Room Contact Us Friends « TSA never got OMB approval for “Certification of ID” (Form 415) […]

  2. Papers, Please! » Blog Archive » Another brick in the (falling) REAL-ID wall Says:

    […] to complete a “Certification of Identity” form (TSA Form 415). That form still has never been submitted for, or received, the OMB approval required as a prerequisite to any Federal “information collection”. As a result, […]

  3. Papers, Please! » Blog Archive » REAL-ID Act implementation, enforcement, and resistance Says:

    […] TSA Form 415,  “Certification of Identity”, under penalty of perjury.  But the TSA still has never gotten Form 415 approved by the Office of Management and Budget, so nobody can be required to complete it or subjected to […]

  4. Papers, Please! » Blog Archive » DHS doubles down on its big lie about ID to fly Says:

    […] TSA’s “ID verification” procedure for people without acceptpable ID involves a form for which the TSA still has never gotten the OMB approval and OMB control number required by …, and a bizarre game of “20 questions” based on commercial data aggregated by Accurint, […]

  5. Papers, Please! » Blog Archive » TSA proposes to require ID to fly Says:

    […] TSA will still have a procedure and a form (TSA Form 415) for travelers who don’t have their ID with them at the checkpoint, typically […]

  6. Papers, Please! » Blog Archive » IDP comments on TSA proposal to require ID to fly Says:

    […] can fly without ID, if you (1) fill out and sign the obscure TSA Form 415, (2) satisfy the TSA with your answers to a bunch of questions about what’s the file about […]

  7. Papers, Please! » Blog Archive » Fact-checking the FAQs on ID to fly Says:

    […] the form the TSA mentions has never been approved by the Office of Management and Budget (OMB), which must preapprove each “infrormation collection request” by a Federal […]

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