For the last fifteen years, as both Republican and Democratic administrations have come and gone, the US Department of Homeland Security (DHS) has been using the threat of “enforcement” of the REAL-ID Act of 2005 to extort state legislators, governors, and driver licensing agencies into complying with the REAL-ID Act of 2005 and uploading their residents’ drivers license and state-issued ID card data to the national REAL-ID database, “SPEXS”.
The threat has been that the DHS and/or its components (such as the Transportation Security Agency) will harass or turn away residents of noncompliant states when they try to pass through TSA or other Federal checkpoints or enter Federal facilities.
Not wanting to provoke riots or protests at airports, the DHS has repeatedly postponed its arbitrarily self-imposed “deadlines” for REAL-ID enforcement at TSA checkpoints, most recently until October 1, 2021. And the TSA, despite repeated trial balloons suggesting what new rules it might try to adopt to require ID to fly, has not yet tried to finalize such a rule. So we don’t really know what, if anything, REAL-ID Act enforcement at airports might mean.
However, the REAL-ID Act has supposedly been being enforced for access to some other Federal facilities for more than five years, starting on October 15, 2015.
We’ve been trying for almost that long to find out what that “enforcement” has really meant, so that we and the public can assess the meaning and impact of the DHS threats.
How many people have been turned away for lack of acceptable or compliant ID, or ID issued by a “compliant” state, when they tried to enter Federal facilities? At what types of facilities has this happened? And for what purposes were these people seeking entry?
Through the response to one of our first Freedom Of Information Act (FOIA) requests for information about the REAL-ID Act and access to Federal facilities, we learned that the DHS had directed every DHS component and other Federal agency to send monthly reports to a special DHS email address, “OSIIS@hq.dhs.gov”, reporting how many people had sought entry to the agency’s faciltities without “acceptable” or “compliant” ID.
In January 2016, we filed a FOIA request for those reports. Almost five years later, the DHS still hasn’t released most of the reports it received on REAL-ID Act enforcement.
In June 2016, the DHS sent us what it said was its final (perfunctory and almost completely redacted) response to our request, including none of the email messages with reports from DHS components and other agencies that we had requested.
After extensive negotiations, the DHS FOIA office agreed to search for the email messages we had originally asked for. Over the years since, the DHS has sent us a trickle of PDF files containing seemingly random (and randomly redacted) compilations of “page-view” images of excerpts from the email messages we requested. Those files suggest that REAL-ID Act enforcement has generally been a “paper tiger”. But they fall far short of compliance with the FOIA law or release of the email messages and reports that the DHS received from other agencies.
Last month the DHS sent us yet another notice (backdated to August) that it had “completed” its response to our FOIA request, still without producing any of the email messages or attachments or most of the records we requested.
We have appealed this response, and in particular the failure to release the email messages and the substitution of “page view” PDFs for the email message or mailbox files. This issue has already been raised, although not yet resolved, in other FOIA lawsuits against the DHS
As our appeal explains, the FOIA law has required agencies to produce digital records in any format in which they are readily reproducible since 1997 — five years before the DHS was created. But the DHS ignored this provision of the law when it set up its FOIA processing procedures, and has continued to ignore it ever since.
Also in August 2020, the DHS decided — after four and half years of unexplained delay — to refer portions of our request to 41 DHS components and other Federal agencies, including some we had never heard of. Presumably, these are some of the agencies that had submitted REAL-ID Act enforcement reports to the DHS, or that had sent the DHS questions about what enforcement of the REAL-ID Act was supposed to mean.
In addition to delaying 4 1/2 years before making these referrals, the DHS sent these other agencies not the actual email message files but PDFs of page-view images generated from them, and containing only a munged and incomplete version of the information in the original records. And although the DHS FOIA office had our current address, they told all these other agencies to send any responses to an address from which we moved almost two years ago, and where forwarding order to our current address has long since expired.
One of the most interesting and potentially significant of these referrals is to the Social Security Administration. Presumably, the records referred by the DHS to the SSA concern how many people have tried to enter Social Security offices without acceptable ID, for what purposes, and whether they have been turned away on the basis of the REAL-ID Act.
The SSA has, without explanation (and applying the wrong section of its own regulations) determined that “furnishing you this information is not in the public interest.” We have appealed that determination. As we explain in our appeal:
The requested records concern people who have presented ID that was not considered compliant, or from states or territories that are or were not considered compliant, with the REAL-ID Act of 2005, for purpose of accessing SSA facilities. These records may include how many such people there have been, whether they have been permitted to enter SSA facilities or obtain SSA services, and what SSA policies, if any, apply to these circumstances….
Policies and practices with respect to access to SSA offices have profound importance and potential collateral consequences beyond access to SSA services.
In general, there is no requirement to possess, carry, or display a Social Security card. It is purely a reminder of a number which has been assigned to an individual’s Social Security account.
But although a Social Security account number card was never intended as a identity credential, many states and territories, in implementing the REAL-ID Act of 2005, have defined a Social Security card as one of the prerequisites for obtaining a REAL-ID compliant drivers license or ID.
As a result, some unknown number of people are seeking to obtain a new or replacement Social Security card in order to obtain a REAL-ID compliant drivers license or state ID. In some cases, obtaining a new or replacement Social Security card requires an in-person visit to an SSA office.
Members of the public need to know whether, if they have neither a REAL-ID compliant ID nor a Social Security card, they will face a “Catch-22” in which they are unable to obtain a REAL-ID compliant ID because they don’t have a Social Security card, but they are unable to get into an SSA office to obtain a Social Security card because they don’t have a REAL-ID compliant ID.
The requested records will show whether this has happened, and if so how often and on what basis, or whether it has not happened. In either case, this information is of great public value. Such a “Catch-22” could have implications for access to many other facilities, programs, and services.
We will continue to pursue these FOIA appeals including information about this potential REAL-ID/Social Security “Catch 22”.