Records of 9/11 Response Not for Public, City Says
By JENNIFER STEINHAUER
The Bloomberg administration has concluded that many of the audio and written
records of the Fire Department's actions on Sept. 11 should never be
released to the general public.
The administration, in response to a lawsuit filed in State Supreme Court in
Manhattan by The New York Times seeking numerous records concerning the
terrorist attack on the World Trade Center, has cited a variety of reasons
for keeping the records secret. In court papers and interviews,
administration officials and city lawyers have argued that a federal court
order in Virginia has barred them from releasing much of the material,
citing its value in the government's case against Zacarias Moussaoui, who is
accused of being the "20th hijacker."
But lawyers for the administration argued that even if the order, issued by
the judge overseeing the prosecution of Mr. Moussaoui, were amended or
lifted, they would still have no intention of releasing audiotapes of the
Fire Department dispatchers, hundreds of individual accounts of firefighters
or transcripts of radio communications from that day.
The administration has argued that releasing these materials would be an
invasion of privacy for the families of those who died at the trade center,
and for the firefighters who responded to the disaster scene. The
administration has said that that because the requested information involves
"interagency" communication, it is exempt under the state Freedom of
Information Law.
"The records requested by The Times were compiled for law enforcement
purposes," according to legal documents filed by Michael A. Cardozo, the
city's corporation counsel. He added: "Second, both the oral histories and
the radio transmissions, especially the 911 calls, contain highly personal
and emotionally charged material. Victims were recorded as they were
experiencing life-threatening circumstances, in some instances as they were
dying."
Shortly after he was appointed, Mr. Cardozo said that the administration
planned to be much more responsive to media requests for documents and
records than former Mayor Rudolph W. Giuliani's had been.
In its suit, which was filed in May, The Times rejects each of the city's
claims, arguing that much of the material - some of which has already been
provided to reporters by family members and other sources - reflects
information and images that have been viewed by millions of people through
news accounts, documentaries and books about Sept. 11.
The Times argues that the Moussaoui order binds only the prosecution and
defense, not state and local agencies. The newspaper also argues that Mr.
Moussaoui's prosecution would not be compromised with the release of this
information, and that the interagency argument is also invalid. "Information
about the case permeates the country," wrote David E. McCraw, a lawyer for
The Times, in a response to the city's memorandum of law.
Mr. McCraw added in an interview yesterday: "The disclosures would not
interfere with law enforcement, they do not reveal intimate personal details
that someone should reasonably think should be secret, or constitute formal
advice. These are documents that have huge historical and policy value for
the city as a whole. They are the accounts of exactly how that operation
worked from the ground level. That is precisely the kind of thing F.O.I.L.
is designed to make public."
Included in the material that the administration says should never become
public are the oral histories given to Fire Department officials by scores
of firefighters and chiefs after Sept. 11. Administration officials say that
the firefighters and chiefs were promised confidentiality when they gave
their accounts, and that to release them would violate that promise and
reveal everything from opinions about the city's emergency response to
gruesome details of death and damage.
The Times, in its court filings, says the department has failed to prove
that any promise of confidentiality was made to firefighters, and that
senior Fire Department officials were compiling the accounts to create a
historical record.
Last December, in an interview with a reporter about the oral histories,
Assistant Chief Salvatore J. Cassano, then the Fire Department's chief of
fire operations, said: "What we are trying to do is capture the events of
the day through the eyes of the firefighters who were at the scene. It's for
historical purposes."
A former senior official in the Fire Department said yesterday that the
firefighters were, in fact, never told that their remarks would be kept
confidential. "The histories are more than for historical purposes," said
the former official, who spoke on the condition of anonymity. "They are of
great value to understanding what happened there. I tend to think that
people should be able to see them."
The Times obtained roughly 70 of these histories independently, and posted
over two dozen of them on its Web site. The histories offer specific and
informed insights on what happened that day, candid assessments of both the
successes and the many problems that plagued the rescue effort, and insights
into how a future attack would be handled.
Mr. Cardozo said of the oral histories: "The fact that they were not
intended for law enforcement purposes" does not negate the fact that "they
are being used for law enforcement now. This is the principal issue."
For its part, the Police Department initially released some records and
materials related to Sept. 11, including tapes of its radio transmissions
that day and a map pinpointing the last known locations of officers who
died. The records were all released on request, without news agencies being
asked to submit applications under the state's freedom of information
statute. The Police Department denied a request to review phone calls
received by 911 operators that day, citing a section of the law that exempts
from disclosure records that were compiled for law enforcement purposes.
As the Moussaoui trial drew closer, police officials cited the concerns of
the federal prosecutors in denying access to additional materials. If
federal prosecutors were to drop their objection to the disclosure, the
department would decide case by case what materials it would be appropriate
to make public, said a police spokesman, Michael O'Looney.
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