Court Denies Media(Public) Access to Recorded Comments, Opinions, and
Phone Conversations of Firemen Involved in Fighting
the WTC fires on 9/11 and to recorded 911 messages from
those at the site
These same records were also
denied to the full 9-11 Commission without deletions. Representatives of the
Commission will be able
to view the records in NYC in their entirety but only be
able to take back redacted portions and without names of people interviewed,
etc., and the Commission failed to release to
the public even the redacted portions of records they received.
Court Opinion:
http://www.courts.state.ny.us/reporter/3dseries/2004/2004_00091.htm
Matter of
New York Times Co. v City of
2004 NYSlipOp 00091
Decided on
Appellate Division, First Department
This opinion is uncorrected and subject to revision before publication in
the Official Reports.
Decided on
Nardelli, J.P., Sullivan, Rosenberger, Lerner, Gonzalez, JJ.
2662
[*1]
This opinion is uncorrected and subject to revision before publication in
the printed Official Reports.
In re The New York Times Company, et al.,
Petitioners-Respondents-Appellants,
v
City of
Catherine T. Regenhard, et al., Petitioners-Intervenors-
Respondents-Appellants.
David E. McCraw
John Hogrogian
Norman Siegel
Judgment, Supreme Court,
brought by a newspaper and a journalist against the New York
City Fire Department challenging respondent Fire Department's denial
of petitioners' Freedom of Information Law (FOIL) request for transcripts of interviews that
respondent conducted of its employees (oral histories)
concerning their activities at the
and for audio tapes and transcripts of 911 calls made on
9/11, (1) denied the motion of nine family members of persons who died on 9/11
for leave to intervene as petitioners (Family Members), and (2) directed disclosure of
the oral histories albeit redacted to delete the
employees' personal expressions of feelings, opinions and recommendations, and
(3) directed
disclosure of the 911
tapes and transcripts albeit redacted to delete the opinions and
recommendations of respondent's employees, and
further redacted to delete the words of 911 callers other
than those related to the Family Members, unanimously modified, on the law,
to grant the motion to intervene, and to direct
disclosure of respondent's employees' personal expressions of feeling contained
in the
oral histories, and otherwise affirmed, without costs.
The motion to intervene
should not have been denied simply because the Family Members did not file FOIL
requests and therefore are not
"person[s]
denied access to a record in an appeal determination" under Public
Officers ? 89(4)(b). Certainly, the Family Members are
interested persons under CPLR 7802(d) to the extent respondent
denied disclosure on the basis of the privacy rights of close family relatives
of 9/11 victims. Moreover, although the IAS court
purported merely to grant the Family Members permission to appear as amici
curiae, it
effectively accorded them party status by granting them
substantive relief in the form of enforcing their desire to waive any right of
privacy
that respondent was asserting on their behalf. We also
note that petitioners support intervention, and that respondent's briefs on
appeal do
not address the issue.
The IAS court correctly held
that the material respondent provided to the federal government as relevant to
its criminal investigation and
prosecution of Zacarias Moussaoui should be disclosed, even if it
constituted records "compiled for law enforcement purposes" under
Public Officers Law ? 87(2)(e) (see John Doe Agency v John Doe Corp., 493 US
146), since respondent did
not meet its burden of showing that such disclosure would in fact interfere [*2]with the Moussaoui prosecution or
deny him a fair trial. However, substantial portions of
those documents should be redacted as falling within FOIL's exception for
intra-agency
materials (Public Officers Law ? 87[2][g]), namely, the portions of the
oral histories containing the opinions and
recommendations of those interviewed, and the portions of the 911 tapes
containing
the opinions and recommendations of the
dispatchers and other of respondent's personnel. Such opinions and
recommendations
are to be distinguished from factual
material, which respondent concedes must be disclosed.
Not falling within the
intra-agency exception are the personal expressions of feelings contained in
the oral histories, and we accordingly modify
to direct disclosure of such expressions. That such
expressions do not fit within any of the four exceptions to the intra-agency
exemption does
not by itself establish that such expressions are intra-agency material. Nor
do such expressions, or the words of respondent's
personnel in the 911 tapes, fall within FOIL's personal privacy exemption
(Public Officers Law ? 87[2][b], ? 89[2][b][iv]). However, concerning the
tapes, the IAS court correctly held that the personal privacy exemption
does apply to the words of the callers. 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 (see Matter
of Empire Realty Corp. v New York State Div. of Lottery, 230 AD2d 270, 273).
The anguish of these
relatives, as well as the callers who survived the attack, outweighs the public
interest in disclosure of these words,
which would shed little light on public issues.
THIS CONSTITUTES THE DECISION
ENTERED:
CLERK
