The FBI recently opened beta testing of eFOIA, a new online system for filing and tracking requests for records under the Freedom of Information Act (FOIA). On first glance, the project seems like a noble effort to streamline transparency in an agency that is notoriously slow and resistant to releasing public information.
But there’s one feature that we would like to see treated as a bug and excised from the new system: mandatory submission of government-issued identification.
To be clear: nothing in the FOIA statute requires requesters to show a government-issued ID for a standard FOIA request, and we’re not sure it’s even legal to ask for it. More than 20 years ago, a federal appeals court ruled that, even when a FOIA request requires a privacy waiver, the person needs only to attest under penalty of perjury that they are who they say they are.
The Department of Homeland Security’s own eFOIA app, which was designed with the same intent as the FBI system, follows the court’s guidance. It doesn’t require ID, but if you are requesting “Personal Records” (for example, under the federal Privacy Act), you need to check a box declaring on penalty of perjury that all the information you’ve supplied is true, and then sign it electronically.
Many states, such as New Jersey and California, are very clear in their policies that you can file requests for information anonymously. Just last year, a state appeals court in Florida agreed that requiring identifying information from an anonymous requester would have a “chilling effect on access to public records,” under the state’s Public Records Act.
Requiring photo ID will undoubtedly have a chilling effect, at least when it comes to using the FBI’s new system. The public remains rightfully suspicious of an agency that has amassed information on individuals simply exercising their First Amendment rights as far back as the J. Edgar Hoover administration. Researchers, journalists, and activists may avoid the system for fear that it will result in further government scrutiny over their private lives. After all, many FOIA requests are intended to uncover controversial actions that could embarrass the FBI.
Many people who file FOIA requests use their real name, but supply the address of where they work or a P.O. Box. By demanding photo ID, the FBI is asking these people to hand over their home addresses as well, along with a photograph, and their sex, weight, height, and hair and eye color. For the purpose of processing a FOIA request, there’s no reason at all that the FBI needs to know whether you need corrective lenses to drive. Of even further concern is whether the photo ID you submit may be submitted to or compared against the FBI’s massive facial recognition database that we reported on in September.
It’s so far unclear how this photo requirement will affect the FOIA assistance services (e.g. MuckRock, FOIA Machine, and private law firms) who file or manage requests on the behalf of others. Many could be interested in using the eFOIA interface, but that would require these organizations to solicit driver license scans from their clients, adding a whole new point in the process where sensitive information could be compromised.
The FBI should not be collecting any more information than it absolutely needs to process a request. With FOIA, it’s the public who gets to ask “papers, please,” not the other way around.
Update December 13: Sen. Ron Wyden has sent a letter to the FBI echoing our concerns about the eFOIA system, along with questions about the photo ID will be used and stored.