Senator Says FBI's New FOIA Policy Is Probably Illegal

The FBI recently updated its Freedom of Information Act standards to allow for a now-common electronic system called eFOIA that's used by many other government agencies. But in updating its guidelines, the FBI may have inserted a provision that potentially breaks the law and could be being used to collect data for government facial recognition databases, according to Oregon Sen. Ron Wyden.

Filing a FOIA with the FBI has never been a fun process. The agency regularly misses its deadlines, redacts information it shouldn't, and outright refuses to respond to many requests. Earlier this month, the agency announced it would begin using the eFOIA portal, a nifty little system that lets you track your requests throughout the whole process. There's a catch, of course: The FBI requires you to upload a government-issued form of identification. No other government agency has such a requirement.

Requiring an ID for a FOIA request may be illegal, according to Wyden, one of the few senators who regularly pushes for more government transparency and less government surveillance. In a letter to FBI Director James Comey, Wyden wrote that the ID provision is a "highly problematic requirement" that "presents serious legal and privacy concerns."

"The FBI's new eFOIA system imposes a requirement that can neither be found in statutory law nor case law. The FOIA statute does not require FOIA requesters to submit a government-issued ID," he wrote. "The FBI's eFOIA system differs from that of other federal entities. For example, the Department of Homeland Security does not require a photo ID of requestors, only an electronic signature attesting to the truth of the information submitted for certain requests."

Wyden says he's concerned that the requirement will prevent some people from filing requests altogether and also cited privacy concerns. He asked the FBI how long it would retain data from ID scans, who within the FBI has access to them, and wondered whether the photos from the IDs would be "entered into facial recognition databases."

Brian Bardwell, a reporter at Tax Notes and frequent FOIA requester, told me that he uploaded this photo as a kind of tongue-in-cheek joke when he recently used the eFOIA system:

"I actually submitted it as a password-protected PDF, rotated upside down and protected with a highly secure password: 'H00ver_was_overr@ted,'" he told me in an email.

His request was, unsurprisingly, denied almost immediately.

"The eFOIA Terms of Service requires a Valid Government Issued form of Identification when submitting a FOIA request. You currently do not meet the Terms of Service required when using participating with the FBI's open eFOIA Beta Test," the agency told him in an email.

To make matters worse, the FBI closes its website between 10 PM and 8 AM Eastern Standard Time. This totally unexplained phenomenon is likely a way to limit the amount of submissions that come in while the program is still in its beta phase, but it could also be construed as another way to keep government documents out of the hands of the people who want to see them.

Uploading an ID seems trivial, but Wyden is right: There's no law that suggests an ID is necessary, and a person could be forgiven for not wanting to send their ID and vitals to the FBI. There's a very real chance that this could have severe chilling effects on government transparency.