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City and Times Argue in Court
Over Firefighters' 9/11 Accounts
NY Times - Thursday, February 10, 2005
By MICHAEL COOPER
ALBANY, Feb. 9 - A lawyer for New York City told the state's highest court on Wednesday that the city's Fire Department should be allowed to edit material related to its response to the Sept. 11, 2001, terrorist attack before handing it over to The New York Times in response to a request under the state's Freedom of Information Law.
The Times is seeking unedited transcripts of interviews that the Fire Department conducted with its members about their experiences on Sept. 11, as well as unedited tapes and transcripts of radio dispatches and emergency calls to 911.
The Bloomberg administration initially sought to withhold all the material sought by The Times. Now the city says it is willing to release much of it but wants to remove portions. The city argues that the release of some of the material would violate the privacy of victims and their families. It also says that some material should be withheld because it is being used in the prosecution of Zacarias Moussaoui on charges stemming from the Sept. 11 attack.
The city's lawyer, John Hogrogian, told the Court of Appeals that the city can be required to provide facts under the Freedom of Information Law, but not opinions of, or recommendations by, members of the Fire Department.
That assertion led one of the judges, Victoria A. Graffeo, to ask Mr. Hogrogian, "How does criticism fit into that equation?"
He replied, "Criticism, I believe, would be an opinion, certainly."
Judge Graffeo asked, "So any critical statement, then, doesn't have to be disclosed?" She added: "That's a rather dangerous way to describe opinion, isn't it? It's not in line with the purpose of Freedom of Information."
David E. McCraw, a lawyer for The Times, argued that the tapes and transcripts should not be edited because the opinions had not been part of a deliberative process, and that the city had not proven that the release of the materials would impair the prosecution of Mr. Moussaoui.
The city is also arguing that releasing tapes of the 911 calls would violate the privacy of victims and their families.
But several judges hearing the case noted that the city had provided no affidavits from relatives who are opposed to the release of the tapes.
The Times's appeal was joined by the families of eight victims who want the information released. Norman Siegel, a lawyer for the families, argued in court on Wednesday that a greater public good would be served by their release.
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© Copyright 2005 The New York Times Company
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