BOB GARFIELD: This is On the Media. I'm Bob Garfield.

BROOKE GLADSTONE: And I'm Brooke Gladstone. In 1962, President Kennedy said, "A nation that is afraid to let its people judge the truth and falsehood in an open market is afraid of its people." In 1966, on the Fourth of July, President Johnson signed the Freedom of Information Act that requires the government to release most official documents to anyone who requests them. But neither President welcomed FOIA. In fact, it had been gestating in the House for more than 11 years, and when it was finally ushered into existence 40 years ago this Tuesday, it was like any newborn – weak and toothless. In the mid-'70s, largely in response to Watergate, the power of the act greatly expanded, but its strength has ebbed and flowed under the march of presidents, and George W. Bush, it's fair to say, counts as a definite ebb. Under Bush, and even before September 11th, former Attorney General John Ashcroft reversed the presumption to disclose under FOIA, and exemptions to the act have proliferated. In fact, the most important recent disclosures, such as documents related to torture at Abu Ghraib, were made only after long and costly lawsuits. So now we'll review the life and legacy of the act, starting with Johnson in 1966. Bill Moyers was his press secretary, and he says the President was no different from any official on any level when it came to airing his laundry.

BILL MOYERS: There was no exception in the Johnson Administration. The President was not known for wanting to fling wide open the doors of the closet and say, come in, guys, and look around and see what you can find. In fact, in Congress, as a powerful Senate majority leader, he had kept his cards very close to his chest. He didn't want his options to be disclosed. He didn't want his friends or his adversaries to know what he was up to, and he carried that penchant for secrecy into the White House. But there had been a long struggle by a handful, a relative handful of newspaper editors and a few members of Congress to pass this act. And the pressure grew until the President found it impossible to resist any further, because he needed too many of these editors to try to help him tell his side of the story about his Great Society legislation, the war in Vietnam. But he had to be dragged screaming to that signing ceremony in 1966. In fact, privately he used language that I cannot use on National Public Radio.

BROOKE GLADSTONE: Sure you can!

BILL MOYERS: No, I can't use it.

BROOKE GLADSTONE: [LAUGHS] Well, as you say, he was dragged kicking and screaming to sign it. But did he, deep down, do you think, believe in it or was he opposed to what it stood for?

BILL MOYERS: I think he was opposed to what it stood for. I mean, I don't think I've known any president who believed that the press should have, that the public should have this kind of untrammeled access to the secrets of government. John F. Kennedy, before Johnson, had been adamantly opposed to the Freedom of Information Act. He had lectured members of the press often about their obligations in a time of national security, the height of the Cold War, to go along with the government. But this bill would not have passed except for the work of an amazing member of Congress from California, John Moss.

BROOKE GLADSTONE: What did this congressman from the Third Congressional District of California have that you guys so close to the President didn't? Who is this man, John Moss?

BILL MOYERS: Well, I didn't know much about him at the time except that he had been elected at a very young age, and he'd found it frustrating as a young member of Congress to get the information from the executive branch that he needed to function more efficiently as a congressman. And he felt one of the chief beneficiaries [LAUGHS] of the Freedom of Information Act would be Congress itself. And he was relentless. He was a bulldog about it. How does a member of Congress come to this obsession with an issue like this? There was no great public clamor for it. There were no Gallup polls that showed this would have catapulted him into some spotlight of public acceptance. In fact, he said that cooperation between the Johnson White House and the Congress had been excellent – unprecedented, he said. But despite this, he said, you know, we still have to have this principle enshrined in legislation.

BROOKE GLADSTONE: Bill Moyers, thank you very much.

BILL MOYERS: Thank you, Brooke.

BROOKE GLADSTONE: Bill Moyers. His current PBS series, "Bill Moyers on Faith and Reason," airs on Friday nights. John Moss, who first said, "Sunlight is the best disinfectant," served in Congress from 1953 until 1978. Frank Silbey went to work for him in '72, and he says Moss' passion made him an irresistible force.

FRANK SILBEY: Well, [LAUGHS] he was a stormy petrel in a lot of ways. He had a temper and he had a very strong sense of ethics. Ralph Nader once called him the best single member of the House. As a result of the respect he had earned in the private sector and in the government and among Republicans and conservatives, as well as Democrats and liberals, he could muster enough political clout to strengthen the law and to prevent attempts to weaken it.

BROOKE GLADSTONE: Now, as this legislation was being drawn up in 1966, was Mr. Moss aware, were you all aware that it still lacked teeth?

FRANK SILBEY: Yes.

BROOKE GLADSTONE: That in the '70s you were going to have to go back and make it stronger.

FRANK SILBEY: Absolutely. And, in fact, he always spoke about that, and he was always unhappy over the number of exceptions to the law behind which people who had something to hide could conceal documentation.

BROOKE GLADSTONE: So John Moss was a leader in Oversight and Investigations, and that's where you came in. What precisely was your job?

FRANK SILBEY: I was his chief of investigations, if you will. The guys that I worked with were, many of them, head and shoulders above me – they had courage – because oversight is a thankless persuasion. You're kicking sacred cows. You're offending other members because you're looking at the programs that they have a vested interest in concealing any abuses that afflict them. It's confrontational. It's occasionally ugly. But the results can be magnificent in the public interest. And Mr. Moss was key, because you're only as good as the willingness of your chairman to back you up. I had no real power except through him. People would come to me, whistleblowers, and bootleg documents to me, and I would show them to the chairman. We would then demand other documents. We would subpoena them if necessary. Then we would hold hearings, and those hearings were extremely powerful because we had a working relationship with most investigative reporters in Washington. There are scandals galore in these federal agencies. They're lying around like stones on a beach. But there isn't a John Moss around with a team of probers and investigators who can lateral off to some great investigative reporters that can blow these stories.

BROOKE GLADSTONE: So now it's 40 years after the bill has passed. And we know the strength of FOIA ebbs and flows with the times and with the various administrations, but it still works as a basic tool, right?

FRANK SILBEY: Yes, it does. In fact, it works even on a local level. I have a home in Palm Beach, Florida. There is a coalition of community groups. Development is, of course, a major issue down here, and these people think that the city fathers are too favorable to too much growth, and they want to ask questions, and so far the city has not been forthcoming. I advised them on a pro bono basis, and I told them about the Freedom of Information Act. And, like Paul on the road to Damascus -

BROOKE GLADSTONE: [LAUGHS]

FRANK SILBEY: - lo and behold, they have seen a great and blinding light. And in this case [LAUGHS], they're starting to write these letters, and all of a sudden there is discomfiture at City Hall.

BROOKE GLADSTONE: Are you saying they got the information they requested through FOIA?

FRANK SILBEY: They're starting to get it. They haven't gotten all of it, but they're starting to use their opposition through FOIA in a more effective fashion. This law applies on every level. It is about as critical to a democracy as anything else I can think of – the right to find out what your government is doing in your name and with your resources. That really is everything that it is all about. And that understanding of what our institutions are and what our rights are will make a new generation rise in defense of those rights, embodied, in part, by the Freedom of Information Act and the example that Mr. Moss set. Maybe I'm dreaming, but I'm still an optimist.

BROOKE GLADSTONE: All right. Thank you very much.

FRANK SILBEY: It was my pleasure, miss.

BROOKE GLADSTONE: Frank Silbey serves on the board of the John E. Moss Foundation and runs two companies specializing in congressional and federal investigations. FOIA may be a useful tool, but it can be hard to master. The National Security Archive, an independent governmental research institute, has filed tens of thousands of FOIA requests, so we challenged the NSA's Barbara Elias to tell us how to do it in two minutes or less. [SOUND OF CLOCK TICKING]

BARBARA ELIAS: The government agency is not going to care why you want the material. In fact, if they do care why you want the material, then you should be concerned. You do need to explain a little bit about who you are, just so they can categorize you as far as fees are concerned – clarify if you are a graduate student and therefore you are eligible for an educational requestor status or if you are a member of the news media and therefore deserve that processing fee. Most people, most average citizens will fall into what's called the "all other" category, and that gives you two hours free search and review time and 100 pages free. So usually your request, as long as it's under 100 pages, will be processed without charge. You want to limit how much paper you're asking for, because the more you ask for, the longer it's going to take. For example, asking the Pentagon for all documents they have on Abu Ghraib is an unreasonably large request. I mean, that's just not a request that they could process. So find out exactly the name of the report on Abu Ghraib you're interested in and ask for that. A part of that, too, is understanding which agency is going to control the documents that you're asking for. The Department of Defense cannot release State Department material. You need to go directly to the State Department. Once you've submitted your request, delay is inevitable, especially if you're asking for documents that require any kind of declassification review. So sometimes the – or frequently, in fact, the FOIA officer at the agency can be your best friend in this process, and I think it's really important to call them and to really, you know, negotiate the request with them; to say, what are the stumbling blocks on this? Because this really seems reasonable to me – what is your perspective on it? If the documents are excised or if they've been withheld, you can file an appeal, which will kick the review up to a higher level in the government agency, so you'll have more senior people reviewing your material. [SOUND OF CLOCK TICKING]

BROOKE GLADSTONE: One minute and 53 seconds. Not bad. Barbara Elias is the Freedom of Information coordinator at the National Security Archive. What she didn't have time to say is that increasingly, groups like hers resort to lawsuits. Right now, the National Security Archive is suing the CIA over a change in how it processes FOIA requests. Over the years, government recalcitrance over FOIA has prompted David Vladeck to sue many, many times. He teaches at the Georgetown University Law Center and he says FOIA was always meant to be a battleground.

DAVID VLADECK: Everybody recognized that the bill was far from perfect, that it was more aspirational than enforceable, but it was an important step forward towards an open society. The most important amendment to FOIA came on the heels of Watergate. Congress passed a sweeping overhaul of FOIA that transformed essentially a paper tiger into one with real teeth. The 1974 amendments imposed enforceable time limits. Prior to '74, agencies took whatever time they wanted to respond. The statute was amended to permit judges to review national security records, law enforcement records, to oversee agency determinations about secrecy. I could go on and on, but the 1974 amendments were truly transformative.

BROOKE GLADSTONE: So then where are we in the battle today? I mean, you talk about a 1970s provision that imposed some time limits on responding to these requests, and we've read that the Justice Department now has a median response time for complex requests of up to 863 days, according to a report by the Coalition of Journalists for Open Government. So is this time limit provision imposed in the '70s still being respected?

DAVID VLADECK: Well, no, and I would make no pretense otherwise. But FOIA is still a crucial tool. We just filed on behalf of researchers a number of requests trying to get access to United States policy regarding methods of interrogation that might be deemed to constitute torture. We filed that request 10 days ago. We've already gotten preliminary responses from two agencies. Now, several of the other agencies may take weeks, may take months, may take even years, though, of course, we'll sue them before them. But you've identified a real problem. For journalists, particularly, who are writing on deadline, delays of the kind of that you've just discussed make it difficult, if not impossible, to use FOIA as the tool it was envisioned to be, which is the principal way people have a window into what their government is doing.

BROOKE GLADSTONE: You can say it's still an effective tool, but for somebody who isn't absolutely expert, like yourself, how effective really is it?

DAVID VLADECK: Well, I think that one of the realities is, is you have an administration that's dead set against implementation of FOIA. If no other legacy is affixed to President Bush, he will go down as the "secrecy president." The first act of John Ashcroft was to issue a memo rescinding prior memos from the Clinton administration, and the Ashcroft memo made it clear that agencies should withhold rather than disclose information, provided that there was any arguable legal basis to do so. And agency heads quickly got that message. Since this administration has taken office, I've had to litigate cases that would never have been brought under previous administrations. I can give you a laundry list, if you'd like, but time and again, we've had to go into court to get access to information that is plainly non-exempt under FOIA but the government fights anyway. There's also been a change in the courts. The courts, through the maybe mid-1990s, were committed to the philosophy of FOIA. But as more and more conservative judges take the bench, you've seen, I think, a judicial pushback.

BROOKE GLADSTONE: Are the courts the only place we have available to us?

DAVID VLADECK: I think at this point in time, the courts are really the only forum to which the public can turn. The courts still do step in and correct the most egregious abuses. Last week, for example, we won an important decision out of the United States court for the District of Columbia circuit. That court ruled that the Department of Agriculture could not withhold records demonstrating the extent to which senior department officials met with representatives of the meat and poultry industry during the course of weakening an important rule to protect the public from a food-borne illness caused by the listeria bacteria. And the court said, essentially – and this was a mixed panel – these were two Republican-appointed judges, one Democrat – the court unanimously said the agency had gone too far, they could not conduct their business in the back room; that the American public had a right to know the extent to which the industry was involved in this rule-making.

BROOKE GLADSTONE: One last question. Prior to 1966, when FOIA was written into law, was there nothing on the books to give Americans some right to access information?

DAVID VLADECK: The answer is not really. In 1947, Congress passed the Administrative Procedure Act, which gave a very limited, essentially unenforceable right to certain agency records. And there was always a common-law understanding that certain government records might be publicly available. But the reason why July 4th, 1966 should be an important date in American history is because that marks the first time we as a nation engaged in a collective act to say that transparency in government, openness in government is a value we as Americans care about.

BROOKE GLADSTONE: All right. Thank you very much.

DAVID VLADECK: You're welcome.

BROOKE GLADSTONE: David Vladeck specializes in open government litigation and teaches at Georgetown University Law Center. To conclude, here's a bit of a song by attorney Dan Klau, a tribute to FOIA that we took of the Internet. Fair use! [MUSIC]

ATTORNEY DAN KLAU [SINGING]: In the wake of Watergate and the President's demise, the people knew the time had come to make a change. For the government to have a soul, it's got to live in a fishing bowl under the constant gaze of the people and the Fourth Estate. The legislature heard the people cry – SONG FADES OUT]

BOB GARFIELD: That's it for this week's show. On the Media was produced by Megan Ryan, Tony Field, Jamie York and Mike Vuolo and edited – by Brooke. Dylan Keefe is our technical director and Jennifer Munson our engineer. We had engineering help from Rob Christensen and other assistants, from Claire Peters and Noah Kumin. Our webmaster is Amy Pearl.

BROOKE GLADSTONE: Katya Rogers is our senior producer and John Keefe our executive producer. Bassist/composer Ben Allison wrote our theme. This is On the Media from WNYC. I'm Brooke Gladstone.

BOB GARFIELD: And I'm Bob Garfield.