State Dept. admits passport form was illegal, but still wants it approved

by Edward Hasbrouck on September 24, 2012

The new U.S. passport application forms are back, worse than ever.

Ignoring massive public opposition, and despite having recently admitted that it is already using the “proposed” forms illegally without approval [PDF], the State Department is trying again to get approval for a pair of impossible-to-complete new passport application forms that would, in effect, allow the State Department to deny you a passport simply by choosing to send you either or both of the new “long forms.”

Early last year, the State Department proposed a new “Biographical Questionnaire” for passport applicants which would have required anyone selected to receive the new long-form DS-5513 [PDF] to answer bizarre and intrusive personal trivia questions about everything from whether you were circumcised (and if so, with what accompanying religious rituals) to the dates of all of your mother’s pre- and post-natal medical appointments, your parents’ addresses one year before you were born, every address at which you have ever resided, and your lifetime employment history, including the names and phone numbers of each of your supervisors at every job you have ever held.

Most people would be unable to complete the proposed new form no matter how much time and money they invested in research. Requiring someone to complete Form DS-5513 would amount to de facto denial of their application for a passport — which, as organizations including the Consumer Travel Alliance told the State Department [PDF], appeared to be the point of the form.

The State Department’s notice of the proposal [PDF] in the Federal Register didn’t include the form itself. After we published the proposed Form DS-5513 [PDF], the story went viral and more than 3,000 public comments objecting to the proposal were filed with the State Department in the final 24 hours of the comment period.

After that fiasco, the State Department went dark for several months and claimed that they would “revise” the form. But they didn’t give up, and apparently they didn’t listen to (or didn’t care) what they had been told by members of the public in our comments.

The State Department is now seeking approval for a (slightly) revised Form DS-5513 as well as a new Form DS-5520, also for passport applicants, containing many of the same questions.

The State Department no longer wants you to tell the passport examiner about the circumstances of your circumcision, but does still want to know the dates and locations of all of your mother’s pre- and post-natal medical appointments, how long she was hospitalized for your birth, and a complete list of everyone who was in the room when you were born. The revised forms no longer ask for all the addresses at which you have lived, but only for those addresses you are least likely to know: all the places you lived from birth until age 18.

And so on, as you can see for yourself on the proposed Form DS-5513 [PDF] and Form DS-5520 [PDF].

Pursuant to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), any “information collection” by Federal agencies must be approved in advance by the Office of Management and Budget (OMB). If a Federal government form or questionnaire (including verbal questioning, if the same questions are asked of 10 or more people) asks you to provide information, but doesn’t contain a current, valid, unexpired “OMB control number,” you aren’t required to answer and can’t be penalized for declining to answer.

There are still no rules in the supporting materials submitted to OMB by the State Department (supporting documents for Form DS-5513, supporting documents for Form DS-5520) for who will be required to complete which (or both) of these two new forms. It would still be up to the standardless, secret, administrative “discretion” of any passport examiner who doesn’t like your looks to spike your right to foreign travel by choosing to give you one or both of the “long form” passport applications.

Supposedly, Form DS-5520 will be for those passport applicants of whose “identity” the State Department is in doubt, while the partially-redundant Form DS-5513 will be for those whose “entitlement” to a U.S. passport (i.e. U.S. citizenship) is in question. But both forms say that, “Failure to provide the information requested may result in … the denial of your U.S. passport application.”

As the Consumer Travel Alliance, the Identity Project, and our co-signers noted in our comments [PDF] (which appear to have been almost entirely ignored), the State Department is entitled to require only that information which is actually necessary to establish identity and eligibility. Once an applicant has provided prima facie evidence of identity and eligibility for a U.S. passport, the State Department has no further authority for interrogatories. A passport must be issued unless there is sufficient evidence to overcome the applicant’s showing of identity and citizenship.

State Department regulations entitle passport applicants to establish their identity by the affidavit of an identifying witness, in lieu of documentary evidence of identity. So the new Form DS-5520 (“Supplemental Questionnaire to Determine Identity for a U.S. Passport”) would be “necessary” only if no identifying witness is available. Bringing an identifying witness when you apply for a passport is a nuisance, but often easier than completing the “long-form” application questionnaires.

As the Identity Project recently pointed out, however, the State Department seems to be trying not to call attention to the option of establishing identity by a witness, and to make it harder for applicants to exercise that right. Apparently, the government thinks that papers, not people, are the ultimate arbiters of who we are. And, the State Department is succeeding. The number of people using the witness affidavit (Form DS-71 [PDF]) has fallen by about 75 percent in the five years since the required form was removed from the State Department’s website.

The State Department published another set of notices in the Federal Register about the revised forms. But since the Federal Register notices didn’t include the actual forms, there was no way to verify whether the “revisions” actually addressed the public objections to the first draft of Form DS-5513.

Not surprisingly, most people felt that we had already told the State Department what to do with the proposed form (scrap it!) and hardly any new comments were submitted.

The State Department’s latest submissions to OMB make no mention of the thousands of comments submitted in objection to the original proposal, or of the issues we raised [PDF] that the proposed form and its use would exceed the State Department’s authority and violate other Federal laws, the First Amendment, and international human rights treaties that protect the right to freedom of movement.

In July of this year, OMB rejected the requests for approval of both the revised Form DS-5513 (OMB notice of action) and the proposed new Form DS-5520 (OMB notice of action) as “improperly submitted.” OMB didn’t say publicly what was “improper” about the State Department’s requests, but we suspect that the impropriety was that the State Department claimed that these were “new” forms when in fact, as we reported last year, they were and are already being used, illegally, without OMB approval.

This August, the State Department resubmitted the proposed forms (Form DS-5513 [PDF], Form DS-5520 [PDF]) to OMB with new “supplemental statements” admitting that both Form DS-5513 (PDF) and Form DS-5520 (MS-Word version; PDF) are “existing collection[s of information] in use without an OMB control number” and that both of these forms were “created to correct a procedure that might have been inconsistent with the Paperwork Reduction Act.”

In other words, “We’ve been using these unapproved forms illegally for years, but now we want OMB to give us its blessing to keep on using them.”

OMB is now considering these resubmitted State Department “information collection requests.” There’s no fixed deadline for the current OMB review, but in the meantime, use of the forms remains illegal.

The State Department still hasn’t answered our year-old FOIA request [PDF] for information about the current unauthorized forms, including how long they have been in use and how many people have been required to fill them out (under illegal threat of denial of a U.S. passport if they are unable or unable to provide the requested information).

OMB’s Office of Information and Regulatory Affairs (OIRA) says that:

In addition to submitting comments through regulations.gov, outside parties may provide written comments to the OIRA Administrator on a regulatory action under review. Parties may also request a meeting with the Administrator. The best way to communicate comments to OIRA is by fax at 202-395-7245. The best way to request a meeting regarding a rule is to contact the Docket Library at 202-395-6880. At any point, members of the public may also submit comments to … OIRA about any currently approved information collections.

The Identity Project has already called and faxed OIRA [PDF] to resubmit its comments [PDF] (which the State Department ignored), and to request a meeting to discuss the objections we and our many co-signers raised.  You can also submit comments to OMB by e-mail to [email protected].

If you submit comments to OIRA, make sure you say that you are commenting on OMB’s review of proposed Department of State information collection requests Form DS-5513 (ICR Reference Number 201208-1405-002) and Form DS-5520 (ICR Reference Number 201208-1405-001).

We’ve provided links above to all of the cited documents on .gov websites where possible because the forms are so incredible that many readers doubted their authenticity when we posted the original version last year.

[Update: In response to our request for a meeting, OMB has informed us that their policy on meetings with concerned organizations only applies to "rulemaking" reviews, and not to "information collection" reviews.  But they did accept and said they will consider our comments and any others they receive.]

(We’ve provided links above to all of the cited documents on .gov websites where possible because the forms are so incredible that many readers doubted their authenticity when we posted the original version last year.)

If you submit comments to OIRA, make sure you say that you are commenting on OMB’s review of proposed Department of State information collection requests Form DS-5513 (ICR Reference Number 201208-1405-002) and Form DS-5520 (ICR Reference Number 201208-1405-001).

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  • wiseword

    This is a joke, right?

  • http://www.tripso.com/author/leocha Charlie Leocha

    No. This is not a joke. The Department of State is dead serious about this. We stopped them once about a year ago. Now we have to go back to the comments.

  • Edward Hasbrouck

    It’s not a joke. Follow the links to the .gov sites with the original documents.

  • Pingback: State Dept. Admits Impossible Passport Form Was Illegal, But Still Wants It Approved | The Flopside

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