Still searching for answers

Victims of the Sept. 11 terror attacks continue to seek public access to filings in their civil lawsuit.

From the Winter 2008 issue of The News Media & The Law, page 27.

By Corinna Zarek

As the sixth anniversary of Sept. 11 passed last fall, 71 percent of Americans polled called the terrorist attacks "the most memorable news event of their lifetime," a USA Today/Gallup survey found.

The public closely followed the events of that day and has remained interested in learning the details of how those attacks may have been carried out.

For the plaintiffs who sued the airlines and security companies associated with the events of Sept. 11, the litigation continues to drag on because of an alleged lack of openness by the airlines.

The families have asked the court to require the airlines to reassess their designations of "classified" information and that they be allowed only to apply such designations to documents that fall squarely under the 2004 protective order.

Seven victims or families of victims remain in In re Sept. 11 Litigation, the lawsuit initially involving 96 plaintiffs filed in 2003 in the U.S. District Court in Manhattan. These individuals are "still fighting for accountability, answers and preventability," said Don Migliori, an attorney with Motley Rice, the firm representing the remaining plaintiffs.

Their case contains a "unique body of investigation," Migliori said, including interviews with and information from representatives of the airlines and private security firms that were involved that day. He said the plaintiffs continue to pursue this litigation for answers to their own questions, but also to make the facts uncovered available to the public.

"They all did this because there is a sense that we need to have a public record about what had happened," he said. "We want to know what those private individuals knew and did not know that day."

The Reporters Committee for Freedom of the Press agrees that information, which surfaced through the investigations and interviews in the case over the years — on both sides — should be presented for the public to review.

In an amicus brief, the Reporters Committee asked Judge Alvin K. Hellerstein to support the plaintiffs’ position that the records filed with the court should be made available.

Unlike some civil litigation, in this case all of the pre-trial investigatory documents — called discovery — were to be filed with the court, and thus, were presumed to be publicly available as court records. Hellerstein issued a 2004 order allowing the parties to file certain narrow categories of information under seal, including certain financial and trade secrets data.

However, based on a review of the filings, the plaintiffs found that more than 99.8 percent of the defendants’ documents had been filed as confidential, presumably expanding the narrow reaches of that protective order beyond its intent.

The Reporters Committee argued that the defendants "clearly disregarded the Order and its intent" in asserting that nearly all of their documents filed could fall within the narrow categories of the court’s order.

"They’re using the order beyond its original intent and what they are doing is applying it . . . to almost everything," agreed Brian Sullivan, a retired special agent for the Federal Aviation Administration.

After retiring in 2001, Sullivan participated in an investigation with the local Fox News affiliate in Boston for which he attempted, successfully, to pass through airport security at Logan International Airport with weapons such as knives and box cutters. He said he forwarded his reports to government officials but when he saw that the terrorists had entered the same checkpoints with similar weapons months later, he realized they had "done nothing to increase security."

Since the attacks, and the subsequent civil lawsuits, Sullivan has remained interested in the case and hopes Hellerstein will take into account the public’s interest in the records related to the suit and provide access to them.

"The victims’ family members are obviously not in this only for monetary reasons, they are there for liability and accountability reasons," he said. "There were gaps in security that are now being protected through discovery. The airlines are going to fight tooth and nail; they are embarrassed because it will demonstrate that they put the fiscal bottom line before the interest of safety of the flight crew and passengers."

The Reporters Committee reiterated that all documents filed in this case should be presumed open to the public, and that only that information which truly falls into the court’s narrow categories be held as classified.

As of presstime, the airline and security defendants planned to file responses with the court opposing both the plaintiffs’ motion as well as the court’s admission of the Reporters Committee’s brief. Oral arguments on the motions were to be scheduled after the court’s receipt of those filings.