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Struggling to balance the need for an open historical record against the privacy interests of anguished victims of Sept. 11, 2001, the New York Court of Appeals said Thursday that large portions of the 911 calls, dispatch communications and interviews with firefighters are subject to public disclosure under the Freedom of Information Law. But the court carved an exception out of what was generally a strong affirmation of New York’s traditionally powerful access statute, holding for the first time that the privacy rights of both the living and the dead outweigh the public interest in disclosure. The Court, in a 4-3 opinion written by Judge Robert S. Smith, said: � Tapes and transcripts of 911 calls are partially subject to public disclosure. The court said the recorded words of public employees and those victims who have specifically waived any confidentiality rights must be revealed. But it said citizens who called 911 when Manhattan was attacked, and survivors of those who perished, have a privacy right that trumps the general public interest in disclosure. “We conclude that the public interest in the words of the 911 callers is outweighed by the interest in privacy of those family members and callers who prefer that those words remain private,” Smith wrote. � Dispatch calls on the fire department’s internal communications system must be disclosed, but only to the extent that they refer to “factual statements or instructions affecting the public.” Nonfactual material, such as opinions and recommendations, may be redacted. “A Fire Department dispatcher who believes that a rescue operation is being badly handled should feel free to say so without the concern that a tape of his or her remarks will be made public,” Smith said. � Tapes and transcribed records of interviews conducted by the Fire Department with members of the department concerning the events of Sept. 11 must be made public, with one caveat. Although the court said those interviews were apparently conducted to obtain an oral history of the attack — and, to that extent, were meant for public consumption — it also recognized that some firefighters may have consented to an interview in the belief that their recollections would remain private. Those expectations of privacy should be respected where disclosure “would cause serious pain or embarrassment to interviewees” if disclosed. The court directed the trial judge to examine those materials in camera, “taking into account any further evidence that may be submitted on the question of whether the interviewees thought the interviews were private.” � Six unidentified tapes and/or transcripts already in the possession of the U.S. Department of Justice, which claims they will be used as evidence in the trial of Zacarias Moussaoui, are subject to disclosure. Moussaoui is accused of helping to plot the airplane hijackings that resulted in the destruction of the World Trade Center. “It is hard to see how the public disclosure of six items that the jury will see at trial anyway could have any significant effect on the federal court’s ability to impanel an impartial jury,” Smith wrote. However, the court acknowledged that there may be an explanation, not apparent from the record, of why and how disclosure of those six items would impact the prosecution of Moussaoui. “It can do no harm for the Department of Justice to have an opportunity to point out such a good reason to Supreme Court,” Smith wrote. OPTION TO REDACT All seven judges agreed with the bulk of the opinion. However, three would have ordered broader disclosure of the 911 tapes. Judge Albert M. Rosenblatt, in a partial dissent, would generally release the entire transcript, not just the portion where a public employee is speaking. He said those transcripts could be redacted to shield the identity of the caller and other personal information. “September 11 is a date burned in the minds of Americans, an event in which our security was profoundly violated,” Rosenblatt said in a dissenting opinion joined by Chief Judge Judith S. Kaye and Judge Carmen Beauchamp Ciparick. “Precisely because of the importance of the September 11 attacks, Americans deserve to have as full an account of that event as can be reasonably furnished.” FOIL REQUEST The case, Matter of The New York Times v. City of New York Fire Department, 13, began when reporter Jim Dwyer submitted a Freedom of Information Law (FOIL) request seeking transcripts and tapes of the oral histories, the 911 calls and the internal dispatch communications. That request was denied entirely by the Fire Department, which argued that disclosure would constitute an unwarranted invasion of personal privacy. The department also contended that some of the records sought were exempt from FOIL as intra-agency records or materials gathered for law enforcement purposes. The Times then commenced an Article 78 action, in which it was joined by family members of nine victims. Supreme Court largely ruled for The Times and, with one modification, so did the Appellate Division, 1st Department. Thursday, the Court of Appeals affirmed the 1st Department with two modifications — that some portions of the oral histories may not be subject to FOIL and that the U.S. Department of Justice must be given a chance to show why disclosure of some records would interfere with the Moussaoui case. PRIVACY PREVAILS In his 17-page majority opinion, Judge Robert Smith clearly struggled to balance the competing interests of personal privacy and public disclosure. But when those interests could not be balanced, he came down in favor of privacy, finding that even the dead have a privacy interest that is not superseded by FOIL. Thursday marked the first time New York’s top court has recognized the privacy rights of the deceased in connection with a FOIL demand. “It is normal to be appalled if intimate moments in the life of one’s deceased child, wife, husband or other close relative become publicly known, and an object of idle curiosity or a source of titillation,” Smith wrote in an opinion joined by Judges Victoria A. Graffeo, George Bundy Smith and Susan Phillips Read. “The desire to preserve the dignity of human existence even when life has passed is the sort of interest to which legal protection is given under the name of privacy.” The majority also expressed deep concern with the privacy interests of people who made 911 calls when “confronted, without warning, with the prospect of imminent death.” It said those calls may well “include expressions of terror and agony” that should not be aired publicly. “The grieving family of such a caller — or the caller, if he or she survived — might reasonably be deeply offended at the idea that these words could be heard on television or read in The New York Times,” Smith wrote. He said if those tapes were made public they would be “replayed and republished endlessly” and in some cases “exploited by media seeking to deliver sensational fare to their audience.” Rosenblatt, however, said full disclosure would “give the public the clearest picture of how the first responders reacted,” revealing both mistakes and heroics on the part of the Fire Department. “Exposing mistakes may prove discomforting, but this will pale in the face of the unforgettable heroics that we will always associate with September 11,” Rosenblatt wrote. “For every person critical of an error or omission, ten thousand voices will rise up in praise of the firefighters, police officers and others who risked life and limb in the line of duty.” PARTIAL DISCLOSURE David E. McCraw, in-house counsel for The New York Times, argued on behalf of the newspaper. Assistant Corporation Counsel John Hogrogian represented the Fire Department. Norman Siegel of Manhattan appeared for the intervening family members supporting the Times’ position. McCraw said the ruling marks the first time the court has recognized that an individual may have a right to obtain a tape or transcript of his or her own 911 call. He also observed that when the battle began three years ago, the Fire Department was arguing that the Times was not entitled to any of the materials it requested. With Thursday’s ruling, the newspaper will apparently receive most of what it sought. “We are happy with the ruling on the oral histories,” McCraw said. “I think that is a big victory for us. Obviously, we are disappointed we didn’t pick up the fourth vote on the 911 materials. At the end of the day, we are pleased the courts took seriously [the government's FOIL obligations], but disappointed that it took three years of litigation and we still haven’t seen anything.” In a statement, Corporation Counsel Michael A. Cardozo said the ruling strongly protects individual privacy interests. “We are pleased that the court has recognized the importance of maintaining the confidentiality of the intensely emotional statements made by persons who were calling for help under the most tragic circumstances imaginable,” Cardozo said. “The decision protects the privacy of the victims of the attacks of Sept. 11th as well as the privacy of their families and survivors.” Robert J. Freeman, executive director of the state Committee on Open Government, said the court broke new ground in recognizing a privacy interest of the deceased and the family of the deceased. He said the ruling stands solidly for the proposition that the content rather than the nature of a record determines what is public and what is not. “They are clearly concerned about the impact of disclosure,” Freeman said. “What would the reasonable person of ordinary sensibilities feel about disclosure? Is it intimate? Is it highly personal? If the answer is in the affirmative, to that extent the government has the right to deny access.”

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