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18

rorism largely without the benefit of what some would call their most potent weapon in that effort, an alert and committed Amer- ican public.’’

This conclusion is echoed in the report of the 9/11 Commission, which includes only one finding that the attacks on the United States could have been prevented. As you will see in the graphic that I included and appended to my testimony, the 9/11 Commis- sion specifically talks about the interrogation of one of the hijack- ers’ paymasters, Ramzi Binalshibh. Binalshibh commented that if the organizers, particularly Khalid Sheikh Mohammed, had known that the so-called 20th hijacker, Zacarias Moussaoui, had been ar- rested at his Minnesota flight school on immigration charges, then bin Laden and Mohammed would have called off the 9/11 attacks. The Commission’s wording is important here. Only publicity could have derailed the attacks.

We see many examples of how the public is empowered by infor- mation released under FOIA. I have appended to my testimony a list of 21st century FOIA successes, a list of news articles that re- sulted from information disclosed under FOIA.

It is interesting. I remember when a foreign official visited my office on the eve of his own country adopting a FOIA law and asked, what happens if it discloses something bad that the govern- ment did, and my answer to him, and my answer to you, is that is exactly what FOIA is about. The American public deserve a gov- ernment that can acknowledge its mistakes, can correct those mis- takes, and do better in the future.

A key part to empowering the public, however, is giving them in- formation in sufficient time for them to do something about it, and one of the things that we found in the audit of Federal agencies that we conducted is that there is a persistent problem of backlog and delay in FOIA. Your bill goes very far to address that and we are very grateful that you have taken into consideration some of the lessons that we found in our audit.

You all know the old adage that justice delayed is justice denied. Well, we have found in our own FOIA requests to Federal agencies that when there is a long delay in the release of documents, the documents often disappear. They may be destroyed. They may be lost. And yes, we can sue, but really, we would rather not have to sue to get documents.

How much worse is it for reporters who are handling breaking news who really need the documents quickly? What about commu- nities that have health and safety problems in their community and they want to protect their children? What about the advocacy groups that are telling the people about the risks in the water or of mercury in fish? This information needs to get out to people quickly.

The OPEN Government Act of 2005 will go far to motivate agen- cies to process FOIA requests and to process them in a timely fash- ion. Despite there being 3.6 million FOIA requests reported in fis- cal year 2003, there are not that many lawsuits, and so I commend you in particular for the provision that would impose a penalty when there are lawsuits—when in lawsuits it is found that the gov- ernment has not met a statutory standard of clear and convincing evidence for good failure to comply with time limits.

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