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Lawyers for the Port Authority of New York and New Jersey were treated to a lengthy blast of indignation from Bergen County’s chief judge last week over their attempt to back out of a settlement to release transcripts of radio traffic from the last moments of the World Trade Center collapse. Judge Sybil Moses’ tirade — which she later turned into a ruling — occurred during oral argument Aug. 21 over whether the agency should be allowed to renege on a deal that ended a suit by The New York Times demanding the transcripts under the state Open Public Records Act. On July 21, the parties had agreed on a release schedule for the transcripts, and as a result, Moses dismissed the case, New York Times v. Port Authority, BER-L-4023-03 and 03-3781. Senior Port Authority executives, however, later decided that the material was too upsetting to be aired publicly. So the agency’s general counsel, Jeffrey Green, instructed his deputy, Christopher Hartwyk, to tell the newspaper that the deal was off. Moses made it plain she was not happy that her order was ignored. “The best part of being a judge is that I get to talk first, so listen up,” Moses said to Hartwyk. “What you’re arguing is that Mr. Green didn’t know the law. … This is the chief counsel of the Port Authority — is that what you’re arguing?” Hartwyk, visibly shaken by Moses’ fury, struggled to make his point, which was that the agreement was to dismiss the case, not hand over the papers. “The agent binds the principle [in a legal agreement] but enforcement is a different matter,” he said, trying to carve out a new issue that would render the judge’s dismissal moot. Moses saw that as hair-splitting. “It’s very disingenuous, Mr. Hartwyk,” she responded. Last week, she ruled that the case remained dismissed and that the settlement be enforced. The Port Authority’s tapes — of police officers, security officials and other employees trying to communicate with each other — are horrific, according to the defendants. They record the period from 8:45 a.m., when the first jet struck, to 10:28 a.m., when the second tower collapsed, and disclose the last moments of employees begging to be saved while the buildings burned. Eighty-four Port Authority employees died that day. Executives who have listened to the tapes have been reduced to tears, the agency says. Reporter Jim Dwyer originally sought the tapes in March 2002, using the Port Authority’s freedom of information policy, which governs records kept by the agency. Radio traffic on Sept. 11 has previously been the subject of news attention because police, firefighters and rescue workers experienced widespread communications failures that day. In addition, “a number of people made rescues and were never given any credit for it,” says Dwyer. As months went by the transcripts were not forthcoming, so The New York Times sued the agency under New Jersey’s OPRA. In July, the Port Authority agreed to release the papers and began transcribing the tapes, so Moses dismissed the case. But as officials heard what was on the tapes — former colleagues’ “dying expressions,” as Hartwyk’s brief puts it — the victims’ families raised objections to their release. At the end of July, the agency told the newspaper’s lawyer, Bruce Rosen of McCusker, Anselmi, Rosen, Carvelli & Walsh, that the tapes would not be released. So Rosen went back to court. PROFIT MOTIVE OUESTIONED In defense, Hartwyk’s broad argument was that it would be bad public policy to release the tapes before the survivors could at least be briefed on their contents. Moses allowed that notion only a smidgeon of sympathy. Noting that the transcripts would go to the newspaper and no one else, she framed it this way: “Could it not be seen to be against public policy for a government agency to negotiate an exclusive agreement with a profit-making entity?” After the ruling, the question was answered as The New York Times agreed to a general release of the material. Rosen noted afterward that he believed the Port Authority had agreed to the settlement because it hoped to avoid a ruling in New Jersey that the bi-state agency was bound by OPRA. Moses repeatedly referred to the settlement and the dismissal as “uncontroverted.” A July 21 memo from the agency to the newspaper notes, “in order to resolve the dispute … the Port Authority would commit to the following actions:” It then lists the records to be released, and adds, “Upon acceptance of these terms, the NYT will withdraw its current complaint.” Hartwyk called that “procedural,” and urged Moses to focus on the distress survivors would experience when they read the accounts in the newspaper. “Maybe we made a mistake,” he said. He was referring to the Port Authority’s failure to have taken stock of the tapes’ contents, but as far as Moses was concerned, he might as well have been referring to his legal strategy. Port Authority spokesperson Greg Trevor said late Aug. 22 that the agency would appeal the ruling.

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