After a year-long “review”, the White House on August 12, 2013, approved the State Department’s proposed new “long form” questionnaires for some (unspecified) subset of applicants for US passports:

Form DS-5513, “Supplemental Questionnaire to Determine Entitlement for a U.S. Passport”:

• Form DS-5513 as approved (OMB Control Number 1405-0216)
• Supporting Documents for Form DS-5513 (click on “all” at top of page for more details)

Form DS-5520, “Supplemental Questionnaire to Determine Identity for a U.S. Passport”:

• Form DS-5520 as approved (OMB Control No: 1405-0215)
• Supporting Documents for Form DS-5520 (click on “all” at top of page for more details)

In approving these forms, the Office of Management and Budget (OMB) ignored overwhelmingly public outrage at these questionnaires, which ask such questions as:

• List all your parent(s) residences one year before your birth.
• Parent(s) place of employment at the time of your birth (Dates of employment, Name of employer, Address of employer).
• Did your mother receive medical care while pregnant with you and/or up to one year after your birth? (Name of hospital or other facility, Address, Name of Doctor, Approximate dates of appointments).
• Please provide the names (as well as address and phone number, if available) of persons present at your birth such as medical personnel, family members, etc.
• Please list any schools, day care centers, or developmental programs you attended from birth to age 18 in or outside of the United States.
• Please list all of your permanent residences inside and outside of the United States starting with your birth until age 18.

The proposed forms were slightly (but not significantly) revised by the State Department during the review by OMB. But there are still no publicly-disclosed guidelines for which passport applicants would be sent one or both of these “long forms”.  We requested this information from the State Department more than two years ago under the Freedom of Information Act (FOIA), but the State Department has not yet responded to our request. (This is, we’ve been told, typical of the State Department’s failure to comply with FOIA deadlines.)  The most reasonable inference is that the new forms are designed to be impossible to complete, so as to provide a pretext to deny you a passport if the State Department doesn’t like your looks (or your opinions, or whatever).

The State Department has also ignored our formal complaint that these conditions for passport issuance violate U.S. obligations as a party to the International Covenant on Civil and Political Rights, and our FOIA request for any records of what (if anything) was done with that complaint.

OMB declined our written request to meet with them to discuss our objections to the proposed forms. OMB policy is to meet with groups interested in its reviews of proposed regulations, but it doesn’t apply that policy to its reviews of proposed “information collections”.

In the course of the review by OMB, the State Department admitted that, as we had already reported, it has already been using these forms illegally. According to the latest State Department submission to OMB:

The DS-5520 has been created to correct a procedure that may have been inconsistent with the Paperwork Reduction Act (PRA)….   Field offices have, in the past, sent the applicant a letter containing a questionnaire asking for the supplemental information.  The Department has become aware of this procedure and is now seeking OMB approval to rectify the oversight….

The DS-5520 is a new collection based on the previously internal Information Request Letter (IRL) titled, “Supplemental Identification List”.  To estimate the number of respondents per year, therefore, the Department ran a report using our Management Information System (MIS) to determine the number of these IRLs filed in 2011 by every passport agency and acceptance facility.  The results revealed that in 2011, 54,723 letters were filed along with the DS-11.

Until the forms were approved (as they now have been) by OMB, the Paperwork Reduction Act (PRA) prohibited the State Department from denying anyone a passport or imposing any other penalties for failure or refusal to fill out these forms.

Now that these forms have been approved, objections to the denial of a passport on the basis of failure to complete these forms (or to do so to the satisfaction of the State Department) will have to be based on other grounds than the PRA.  These objections may be more fundamental, but may also be more difficult to establish in administrative or judicial proceedings.

If you are a US citizen but are denied a US passport because you are unable or unwilling to answer these questions, or you are prevented from entering or leaving the USA because you don’t have a passport, we’d like to hear from you.

Buried in the TSA’s response last month to our FOIA request for information about its ID verification forms a and procedures was a fragmentary report on how many people try to fly without ID, and what happens to them.

An e-mail message discussing the changes made in 2008 to the TSA’s (secret) procedures for flying without ID — the last time TSA Form 415 for air travelers without ID was revised — included a TSA Operation Center (TSOC) “ID Verification Report” for the 15-hour period from 5 p.m. on June 21, 2008, to 8 a.m. on June 22.

On what was described as a “quiet” night, 74 people (nationwide, apparently) tried to fly without ID and were subjected to the TSA “ID verification” procedures between 5 p.m. and 5 a.m., and an additional 45 between 5 and 8 a.m. the next morning, for a total of 119. This didn’t include what is presumably the busiest shift, from 8 a.m. to 5 p.m., but what still suggest that tens of thousands of people try to fly without ID each year.

It appears that most of these people were allowed to fly without ID. Of the total of 119, only 8 were reported as “denials” (presumably meaning that they were identified, but deemed on the basis of that identification to be subject to no-fly orders), while 23 were reported a “not verified”. It’s unclear if those “not verified” were denied travel,  or were allowed to travel despite not being “verified”.

Now that we know that records are being kept of how many people try to fly without ID, and of what happens to them, we’ve filed a follow-up FOIA request for all “TSOC ID Verification Reports” as well as any records of how incidents and outcomes are categorized for reporting purposes.

While we’re picking on what the TSA posts in its official blog, let’s take a look at what the TSA said in another blog post earlier this week entitled, “Can you fly without ID?”

It’s an important question, but the TSA only hints at the answer.

One might expect that the answer to the question, “Can you fly without ID?”, would start with the ID rules. But no, there are no rules about this or anything else the TSA does.  The TSA has “Standard Operating Procedures”, but (a) they aren’t rules, and the TSA can’t be required to follow them, and (b) they are secret. Gotta keep the terrorists (and the innocent travelers) guessing, apparently.

According to the TSA’s latest blog post:

If we can’t confirm your identity with the information you provide or you’re not willing to provide us with the information to help us make a determination, you may not be able to fly.

What does this mean?

Obviously, the only reason you might “not be able to travel” would be that the TSA would prevent you from doing so, or direct someone else — most likely the airline or local law enforcement officers — to do so. So the TSA statement amounts to an assertion of authority to issue no-fly orders.

But the TSA doesn’t say that you won’t be able to travel, only that you “may” not be able to do so. So the TSA’s assertion is of discretionary no-fly authority.

There is no requirement in any TSA regulation or law for would-be travelers to identify themselves or provide any information to the TSA. Nor is there any definition of what it might mean for the TSA to “confirm your identity”, or what information might be required for that purpose. So the TSA’s assertion is of administrative no-fly authority not derived from any public source and not bounded by any publicly-disclosed standards.

To sum it up, even while saying that yes, you might sometimes be allowed to fly without ID, the TSA is claiming the authority, in its standardless administrative discretion, to prevent you from flying if you don’t provide whatever information it asks for, or if it claims to have been unsuccessful (for whatever reason) in accomplishing whatever it thinks constitutes “confirming” your identity.

So much for the “right” to fly without ID, and for TSA compliance with its explicit statutory duty to treat air travel as a public right.