Firefighters' Sept. 11 oral histories are open, 911 calls are not

• Tapes and transcripts of callers’ remarks to 911 dispatchers and firefighter communications from Sept. 11, 2001, can be withheld under state open records law, but later interviews with firefighters about the day’s events must be released, New York’s high court rules.

March 28, 2005 — The Fire Department of New York cannot keep secret most interviews of firefighters who responded to the Sept. 11, 2001, World Trade Center attack, but it can withhold callers’ portions of tapes and transcripts of 911 calls and communications between firefighters that day, the state’s highest court ruled Thursday.

The ruling by the state Court of Appeals about a records request from The New York Times makes public the transcripts of oral histories given by firefighters after Sept. 11, but says the state’s open records law allows other information to be withheld.

The decision upheld two lower court rulings, but modified them to say that firefighter interviews “likely to cause serious pain or embarrassment to an interviewee” can be withheld.

“We infer from the record that the oral histories were exactly what their name implies – spoken words recorded for the benefit of posterity – and that the Department intended, and the people interviewed for these histories understood or reasonably should have understood, that the words spoken were destined for public disclosure,” Justice Robert S. Smith wrote for the court.

Some firefighters, however, said they believed that they were promised confidentiality and gave intimate and emotional testimony, so their tapes will be submitted for a nonpublic review by a lower court to determine if disclosure is proper, the high court ruled.

The court also held that discussions between firefighters and other fire officials are public only if they include “statistical or factual tabulations or data” or “instructions to staff that affect the public,” the court ruled, citing an exemption to the state’s Freedom of Information Law.

“The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure,” Smith wrote. “A Fire Department dispatcher who believes that a rescue operation is being badly handled should feel free to say so without the concern that a tape of his or her remarks will be made public.”

Citing the 2004 U.S. Supreme Court ruling National Archives and Records Administration v. Favish, the court said that releasing tapes and transcripts of the 911 calls on Sept. 11 would intrude upon the privacy of the callers’ family members. In Favish, the high court ruled that privacy interests of surviving family members of the late White House Deputy Counsel Vince Foster outweigh the public’s interest in disclosing pictures taken as the scene of his death.

However, the New York court ruled that there is not a comparable privacy interest in all tapes and transcripts of calls made to 911.

In the Sept. 11, case, if “the tapes and transcripts are made public, they will be replayed and republished endlessly,” and in some cases “they will be exploited by media seeking to deliver sensational fare to their audience,” Smith wrote. “This is the sort of invasion that the privacy exception exists to prevent.”

Eight records will be released, however, because the families of the victims who made those calls support releasing the information and intervened in the case on the Times’ behalf. In the future other tapes could be disclosed pending familial approval, the court said.

Justice Albert M. Rosenblatt dissented in part from the majority along with two justices from the seven-justice panel. Rosenblatt argued that the state’s open records law requires more disclosure because of the extraordinary circumstances of the day.

“Precisely because of the important of the September 11th attacks, Americans deserve to have as full an account of that event as can reasonably be furnished,” Rosenblatt wrote.

While Rosenblatt agreed with the majority that full disclosure of 911 tapes would cause considerable anguish to the families, he argued that only written transcripts – not tapes – should be released in cases containing dramatic and personal information.

The court also ruled that if the U.S. Department of Justice continues to want to withhold six particular Sept. 11 records for the trial of alleged terrorist Zacarias Moussaoui, it will have to prove to a lower court how releasing the tapes would interfere with that case.

In “this context, it is hard to see how the public disclosure of six items that the jury will see at a trial anyway could have any significant effect on the federal court’s ability to impanel an impartial jury, ” Smith wrote for the court.

(The New York Times Co. v. City of New York Fire Department, Media Counsel: David E. McCraw, New York, N.Y.) — AB

Related stories:

• Judges order more Sept. 11 records to be released (01/16/2004)
• Judge rules that firefighter tapes from September 11 are public (02/07/2003)

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