The most frequently asked question in the ongoing discussion about the State Department’s proposed new “Biographical Questionnaire” for (some) passport applicants has been, “Is this a hoax?”

We wish this were a joke, but it’s for real. The proposed Form DS-5513 that we published is the one we and others who requested it received from the State Department’s designated contact for the proposal.

The second most frequently asked question about this proposal is, “Why is the State Department doing this?”

We think we’ve found the answer: The State Department is already using a version of this form, illegally, without OMB approval, and has probably been doing so for several years. The point of the current proposal is to try to regularize and give legal cover to an ongoing and clearly illegal practice — and, while they are at it, to make the current form even worse.

We’ve been reading through more than 3000 comments submitted by the public to the State Department on the last day before the deadline to object, as well as those other commenters have posted on their own websites. The docket clerks are still processing the backlog of last-minute submissions, so we don’t know the total count yet. Only those submitted through the Regulations.gov website show up in the online docket; others were submitted by email.

The key evidence was in the attachments to the comments submitted by NAFSA: Association of International Educators, whose members include directors of (outbound) academic study-abroad programs in the US as well as advisors to (inbound) foreign students at US institutions. You can read more about NAFSA and their comments on the passport questionnaire on their own website here.

According to NAFSA, some passport applicants have already been sent a five-page “Supplemental Worksheet”  (it’s also included as the last five pages of the NAFSA comments and attachments) that includes many of the exact same questions, in the exact same format, as the proposed five-page Form DS-5513.  Like the proposed Form DS-5513, the Supplemental Worksheet says that it must be completed “in its entirety” under penalty of perjury.

A Web search for  “passport” and “Supplemental Worksheet” turns up numerous other copies of this form, together with stories — some of them going back several years — of people who have been required to completed this form and, in some cases, had their passport applications denied because they were unable to do so.

Aside from the general problem of denying these people passports and the right to travel, the particular problem is that the current Supplemental Worksheet, despite already being in use and having been in use for years, has no OMB (Office of Management and Budget) “control number”.

The absence of an OMB control number is conclusive evidence that the Supplemental Worksheet hasn’t gone through the process of public comment, submission to OMB, and OMB approval now being undertaken for its proposed successor, Form DS-5513.

So what? Under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.), any “answers to identical questions posed to … ten or more persons” by any Federal agency must be approved in advance by OMB, and any form used for such an information collection must include a valid OMB control number showing that it has been so approved.

And if it doesn’t have an OMB control number?  According to 44 U.S.C. 3512:

(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if–

(1) the collection of information does not display a valid control number assigned by the Director [of OMB] in accordance with this subchapter; or

(2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.

(b) The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.

That means that:

• All use of the current Supplemental Worksheet is in violation of the Paperwork Reduction Act.
• Anyone who is given, or who has been given, the Supplemental Worksheet (or any other form without an OMB control number) has an absolute right to decline to provide any answers. They could also report the officer who gives them to form to the State Department Office of the Inspector General for violation of the Paperwork Reduction Act.
• Absolutely no penalty (including denial of a passport, denial of permission to travel, or interference with the right to travel) can legally be imposed on anyone for declining to provide any information requested on the Supplemental Worksheet.

(Although the State Department rarely points this out, the Department’s own regulations at 22 C.F.R. § 51.28 entitle passport applicants to establish their identity by the affidavit of an identifying witness in lieu of documentary evidence of identity. If you want to go this route, make an appointment at a passport acceptance office, and show up with a witness who is willing to sign an affidavit that they know you and you are who you say you are, and who has their own ID credentials (preferable a passport) with them. Ask the passport acceptance officer for a copy of the current version of State Department Form DS-71 for your identifying witness to complete and sign in the passport acceptance officer’s presence.)

Presumably, what’s happening is that someone at the State Department noticed — years after the Supplemental Worksheet came into use — that it had never been properly approved by OMB, and was being used illegally.  Rather than stop using it, they decided to try to cover themselves by submitting it for approval.   And while they were at it, they decided to add even more impossible questions.

The State Department’s request now for OMB approval, even though an unapproved version of the form is already in use, may also be a response to the lawsuit brought against the State Department in 2008 by U.S. citizens whose births in Texas and other Mexican border states were attended by midwives (a common practice, as their complaint explains), and who were presumed by the Passport Agency to have been of Mexican ancestry.  The plaintiffs challenged the demands made by the State Department for additional evidence about their personal and family histories, and the failure to approve their passport applications. In a June 2009 settlement (see p. 19) of that lawsuit, the State Department reserved the  “right” to require answers to an “OMB biographical questionnaire”, something that doesn’t appear to have existed at that time. [The McAllen Monitor and KGBT-TV in Harlingen have more on reaction to the proposed new form in the Rio Grande Valley.]

This is almost exactly the same thing that has happened before with Federal demands for evidence of identity. Lacking any statutory or regulatory authority to demand such evidence of innocent people not suspected of a crime, as a condition of exercising their rights, Federal agencies have bypassed the OMB approval process that would have required them to justify their authority and the necessity for demanding this information. Instead, they have simply presented some arbitrarily selected subset of the citizenry with illegal, non-OMB-approved forms demanding evidence of identity, under penalty of perjury and under threat of denial of the right to travel.

Case in point: the “Certification of Identity” form introduced by the TSA in 2008. Presented with a copy of this form at Phil Mocek’s trial in January of this year, the TSA’s witness said that the layout and typography of the form had changed from this version. But so far as we can tell, essentially this form, still without an OMB control number, remains in use.  As with the State Department’s Supplemental Worksheet or the proposed Form DS-5513, there are no published substantive of procedural standards for determining who will be told they have to fill out this form if they want to fly.

The TSA has failed to respond to our request under the Freedom of Information Act for (1) the current version of this Certification of Identity and (2) any communication within TSA or between TSA and other agencies including OMB regarding the content of or approval for use of this form, including in particular any records related to requests for or approvals of this form by OMB, any OMB control number for any version of this form, or the potential need for such approval. Our appeal of the TSA’s (typical) failure to comply with FOIA and produce these records is pending.

We’ve made a similar FOIA request today to the State Department for any records related to use of the current Supplemental Worksheet for passport applicants, or its submission to OMB.

Members of Congress have begun asking similar questions: Today Rep. Denny Rehberg of Montana made public a letter he has sent to Sec. of State Clinton, requesting information about (1) why the State Dept. believes it is “necessary” to collect this information, (2) the legal authority for requiring it, (3) the State Department’s analysis of the public comments and the percentages supporting and opposing the proposal (all of the comments we’ve reviewed oppose the proposal), and (4) what the State Department plans to do now and whether it has yet consulted OMB.

But with both the TSA and the State Department, the real problem — as we pointed out in our latest comments — is that they take for granted that travel is not a right, but a privilege for which the government can grant or deny “permission” at whim. That’s the assumption that underlies their decision simply to impose such “permission” requirements without thinking they needed to even go through the motions of getting Congress to pass laws, promulgating regulations, or obtaining the necessary approvals for their forms and demands for, “Your papers, please.”

[Follow-up: State Dept. responds to passport form furor — with lies]