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Judges order more Sept. 11 records to be released

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    News Media Update         NEW YORK         Freedom of Information    

Judges order more Sept. 11 records to be released

  • A New York state appeals court granted The New York Times access under the Freedom of Information Law to most transcripts and recorded remarks made by emergency response personnel during the Sept. 11, 2001, terrorist attacks, although victims’ remarks remain withheld.

Jan. 16, 2004 — The New York Times last week won access to audiotape recordings and printed transcripts showing what emergency response personnel said while at work immediately following the Sept. 11, 2001, terrorist attacks.

A five-judge panel of the Appellate Division of the Supreme Court in Manhattan unanimously held Jan. 8 that the newspaper has a right of access to the records under the state’s Freedom of Information statute. The court said all internal communications by emergency responders must be disclosed, including their oral histories of the terrorist attack and its aftermath, as well as radio dispatches.

Responders’ opinions and advice to superiors remained exempt from disclosure, as did what those who called 911 talked about. Revealing what the callers said, the court held, would “shed little light on public issues.”

The decision reversed portions of a Feb. 13, 2003, lower court ruling that ordered the release of emergency workers and firefighters’ oral histories, but stripped of all recommendations, opinions and personal feelings uttered to victims of the attack.

New York’s FOI law requires “a broad standard of open disclosure” by government agencies, unless an agency can prove a specific exemption bars documentary release. The appellate panel held that the privacy exemption is valid for shielding what 911 callers said to emergency response personnel because of the perilous circumstances surrounding their calls.

“Disclosure of the highly personal expressions of persons who were facing imminent death, expressing fear and panic, would be hurtful to a reasonable person of ordinary sensibilities who is a survivor of someone who made a 911 call before dying,” the panel held.

Counter to the lower court’s ruling, the appellate panel said it was important for the public to know how operators responded.

Michael Cardozo, corporation counsel for New York City, issued a statement following the ruling saying he applauded the court’s decision. “[I]t protects the privacy of the victims of the attacks of Sept. 11, as well as the privacy of their families and survivors.”

The city and families of some firefighters sought to withhold certain documents from the public. They argued that exemptions to the FOI Law — including law enforcement, personal privacy and the records of government employees soliciting advice from superiors — should prohibit the records’ release, according to the Times.

David McCraw, attorney for the Times, said he will appeal portions of the decision. Lawyers for the city said they too were considering an appeal, the Times reported.

(The New York Times Co., et al. v. City of New York Fire Department; Media Counsel: David McCraw, New York City) AB

© 2004 The Reporters Committee for Freedom of the Press

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