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Manhattan Surrogate Eve Preminger strongly signaled Feb. 13 that she would bar the public disclosure of affidavits from close relatives of 2,400 World Trade Center victims filed in court to obtain death certificates for those killed in the Sept. 11 attack. During oral arguments Feb. 13 on The Associated Press’ motion for the release of court records connected to the death certificates, Preminger also indicated she would permit the release of information in approximately 50 cases where fraud concerns had resulted in the denial of death certificates, despite objections from the Manhattan district attorney’s office. Since July, The Associated Press has attempted to gain access to the records submitted to Preminger and Manhattan’s other surrogate, Judge Renee R. Roth, as part of a procedure fashioned by court and city officials to enable the families to speedily obtain death certificates. In early December, Preminger had issued an order temporarily sealing the death certificate files while the she weighed the public’s interest in access to the materials and the families’ privacy interest in maintaining their confidentiality. In January, she appointed New York University Law School Professor Burt Neuborne, a former legal director of the American Civil Liberties Union, to represent the families’ interests. In remarks from the bench, Preminger indicated a likelihood that she would hew fairly closely to Neuborne’s recommendations. In addition to recommending that the family affidavits be kept sealed, Neuborne proposed that affidavits submitted by victims’ employers be purged of any personal information before release, with The Associated Press (AP) being required to bear the cost of redaction. Neuborne also recommended the release of the two judges’ orders either granting or denying the issuance of death certificates. In a fourth proposal, Neuborne urged shielding from disclosure documents containing personal information, such as Social Security cards or pay stubs, which were submitted with the applications. David A. Schulz of Clifford Chance, AP’s lawyer, accepted the latter two recommendations. DISCOVERY CONCERN Neuborne’s further recommendation that the families have no “privacy” interest in cases where the judges rejected a request for a death certificate, however, brought a protest from the Manhattan district attorney’s office. Joan Delaney, deputy chief of the office’s special prosecutions bureau, protested that the release of material in files where criminal prosecutions are pending would give the defense access to materials that under criminal law discovery rules would not be made available until much later in the process. Judge Preminger responded that she had to be concerned with a weighing of privacy interests and not the rules of criminal discovery. A second concern raised by Delaney was that release of information in the “denied” files could compromise future investigations. To meet concerns about revealing sources and investigative techniques, Preminger suggested she would give both the district attorney’s office and the Police Department 60 days to object to any material slated to be released from the “denied” files. Fraud was implicated in as many as 25 of the 50 applications that were rejected by the judges, according to city officials. Delaney said that of 30 suspected fraud cases referred to the district attorney’s office — some of them from sources other than the rejected death certificate applications — 13 are still pending. Gail Rubin, the head of affirmative litigation at the Corporation Counsel’s Office, said her office still has 27 cases under review for suspected fraud. The state attorney general’s office has prosecuted 12 cases, all of which have resulted in guilty pleas, according to its spokesman Brad Maione. JUDGE’S CONCERNS During the Feb. 13 argument, Neuborne reported that the “bulk” of the applications contained descriptions of last conversations between persons trapped in the twin towers and their loved ones. Given the potential for sensitive material in the family affidavits, Judge Preminger said that grading “how poignant, lurid or touching each statement is” is an “enormous task.” When Schultz argued for statement-by-statement determination, saying that is what is required in sensitive criminal cases involving testimony about sex crimes, Preminger rebuffed him, noting that crime victims have the option of not pressing charges if the ordeal of testifying is too overwhelming. The families of World Trade Center victims did not have that choice if they wanted to obtain a death certificate, Preminger noted. In addition, she suggested the families were “blindsided” into believing that the submission of the affidavit would eliminate the need to go to court. Preminger was more equivocal with regard to Neuborne’s suggestion that the employer affidavits should be released only if AP bore the cost of purging any personal information. She expressed some sympathy, however, when Neuborne asserted that the employer affidavits, like the family affidavits, could contain a substantial amount of personal information, such as how the deceased were viewed by their fellow employees and their employers. But Schulz vigorously objected to the need to go over “line by line” who “likes or dislikes” whom, and who is “doing a good job.” That is “the type of stuff that comes out in court proceedings every day,” he said. 3-YEAR DELAY AVOIDED Without the special procedure for a court-ordered death certificate, many families would have had to wait three years, rather than a few weeks, to have one issued. In the absence of such streamlined procedure, the law requires a three-year wait where the body of someone presumed dead is not recovered, as was the case with most of the World Trade Center victims. Death certificates were needed before families could collect insurance and government benefits. Both Surrogates Preminger and Roth were appointed acting New York Supreme Court justices for purposes of ruling upon the death certificate applications.

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