 Foundation Dinner with Senator Dick Durbin of Illinois and Congressman Tom Delay of Texas. After that, University of Colorado professor Ward Churchill on his book on the justice of roosting chickens, reflections on the consequences of U.S. imperial arrogance and criminality. And just before 10 Eastern, a speech by David Horowitz to college Republicans on diversity on campus. This is C-SPAN's America and the Courts. On Wednesday, the highest court in New York State, the New York Court of Appeals, heard oral argument in the case New York Times Company v. City of New York Fire Department. At issue are 9-1-1 calls, radio calls, and 500 firefighter oral histories recorded on or regarding the September 11 terrorist attacks. The New York Times, once these materials made available to its reporters and readers, the New York Fire Department argues that the materials should not be made public. A lower court issued a split decision and the New York Times appealed. May I please the court? My name is David McRaw, counsel for the New York Times Company and Jim Dwyer, petitioners in this matter. Chief Judge, I would ask reserve two minutes for response. Good afternoon, Mr. McRaw. Could you give us, put the issues in context and just give us a very brief capsule of the categories of documents that are in issue? Yes, I would, Your Honor. I'd also like to say that for purposes of avoiding repetition, I'm primarily going to speak about the law enforcement exemption and the interagency exemption. Mr. Siegel, representing the interveners, is going to speak about the privacy issue. So our time is better spent and your time is better spent as well. There are three categories of documents, oral histories. Those are transcripts and tapes of interviews done by the fire department with their personnel after 9-11. What I refer to as radio tapes and dispatch, but essentially the internal taping system of fire department where dispatchers were sending people to the scene, communicating back. Third, the 9-11 calls, civilians calling to 9-11 operators. Within those categories, there are three exemptions that have been applied, one the interagency exemption, one the privacy exemption, one the law enforcement exemption. And we are now after, while we began this, when Mr. Dwyer first made his request, the city had said none of these materials were released, we're now down to the point where the city can see that many, most of these items are releasable and we're talking now about the scope of redaction, the scope of withholding. I proceed to talk about the exemptions, the particular exemptions if I might. The city is arguing that the interagency exemption should apply to two sets of the documents I just described for the chief judge. One is the oral histories and one is the internal dispatch tapes, no argument about interagency as to the 9-11. Both sides agree that this exemption applies only to opinions by statements, not to facts, and that's in the statute, that's certainly been the jurisprudence of this court. In Rousseau, the court held that it applied that the interagency material, not defined in the statute, applies to deliberative materials and that's how it's been followed, I think, since. What we argue here and where we differ with the city is that we believe that there has to be more than bare opinion that only certain kinds of opinion statements fall within the exemption and by that we go back to Gould, this court's holding in Gould, which said opinions, ideas, advice, exchange as part of a consultative or deliberative process. We also talked in Gould about impressions, recommendations, that seems a little more fleeting than what you've just quoted. Yes, Your Honor, it does. And what I focus on, what we focus on is not sort of the characterization of the opinion, whether they're impressions, opinions, advice, whatever they might be, but what is the process in which the communication is embedded? In other words, is this a deliberative process? It put it bluntly that opinions that are given without being part of a decision-making process shouldn't fall within this exemption, that what this exemption is designed to do is to protect government decision-making to avoid governing in a fish bowl, as one court has said, that it's really designed to make free the giving and taking of opinions that may or may not. Could a call, for example, giving a few options, and the caller asking the person called, which the best would be, would that be the sort of thing that would fall within the interagency exemption? I don't believe so, Your Honor, if the process itself wasn't a decision-making process. And let me look at the two categories of documents here. So if they had sat down and started to discuss strategy and discuss how to deal with an emergency in the future, and use some of the same resources, the same firefighters to discuss this with, that would be protected, but yet the oral histories, whether it was this free flowing of ideas, would not. Your Honor, if the first discussion was part of an attempt to make a decision, if it was linked to the deliberative process, yes. If it was, as in the oral histories, an attempt to gain information, sit people down, and if you look at what the fire department said, it said two reasons that the oral history is being done. One was for historical purposes, to capture what happened. Do we understand that the interviewees knew they were being they were being interviewed for historical purposes? I believe so, it was reported in the papers. The other thing, Your Honor, that was said was that it was there so the family members could know what happened to their loved ones. You look at the record at page 102, there's a New York Times story of an interview with fire department officials that makes that clear. Aren't you essentially asking that to me? Is there any agreement between the two of you on the oral histories and the dispatchers? Is there any agreement of what ought to be redacted? There is not. We take the position that the entire record should be made public. There was no representation that confidentiality would be given to anyone whose oral history was taken? The city stipulated before Supreme Court that they thought that it happened, but could not say to what degree it happened and waive that as a possible basis for withholding. So we have to decide this case on the assumption that there was no promise of confidentiality? I believe that's right, Your Honor, according to the stipulation in the record. Here is to get at that sort of the larger concern we have with this is that statements of employees that are in effect whistle-blowing or praise or criticism, but not designed to be part of any decision-making shouldn't be protected. We believe that kind of insight into what happened is precisely what Foil is about, helping people understand what happened. That sometimes may be not only factual statements, but evaluative statements. I point to the record of 176. Here's what the fire department thinks should fall under the exemption. One employee described the scene as being disorganized. Fire Department personnel did not know what to do. It was unclear where the command post was located, where the staging area was organized. Many of the units were unfamiliar with Manhattan, did not know where to report. Despite well-meaning efforts, crews were making errors with regard to patient treatment. In his opinion, there was a breakdown in discipline. It was hard to control personnel. Finally, this employee described the utter chaos of volunteers appearing to assist. None of that was directed into any decision-making channel, with someone recounting what he saw. From our point of view, it's that kind of analysis, that kind of insight that should be part of the public record. Could you give us an example of the other extreme? And I think that, to make the point more clearly than I've made it, is that it really is a matter of looking, is there a decision-making process? Well, you gave us a tangible example of what you think should be included. Could you give us a tangible example of what should not? Your Honor, if the fire department had decided to have a formal review of the procedures and ask people, give us your recommendations, give us your account, what happened, your recommendations, and we're going to go forward. Well, weren't they, in effect, doing that as one of the purposes of the oral history? Your Honor, I don't believe so. As I read the record, there's one conclusory assertion that there was an ongoing review. I go to the federal cases, which have decided to have to deal with this issue a little bit more. So simply pausing an ongoing review is a way to, in effect, put a shroud of secrecy over things that shouldn't be secret. Also a dual purpose. Suppose the interviewee understood that he was speaking both for posterity, that is, that his words would be read later, and also to help the department improve its performance next time. What should be the result in that case? If, in fact, there was a decision-making process, that his understanding was based on a reasonable and objective set of circumstances, then yes. Even if he expected his words to be in history books read? Why should that be protected? Well, I agree that the historical context of it may give an overlay to it that would say, it should be public, but my understanding was there was no particular plan for when it would be disclosed, and I thought your question went to more of that. But yes, if in fact it was meant for, if he thought he was speaking immediately for the record, then by all means, yes. Mr. McCrum, I still would like an example. Will you keep returning to the words part of the decision-making process? What would be a good example of something you clearly acknowledge would not, would be exempt from foil disclosure? If, in fact, there was a process where the fire department had said we need to make a decision about, for instance, what would be the protocol for having volunteers come, off-duty volunteers come to the, come to the site. And when it asked people to provide input on that decision, and they said, I believe that what we need to do is have one particular check-in point. I need, we need to have one communication system. We need to have an enhanced communication system where we would know that. That to me, that would be a process designed to make a decision. And on the, the run-up to that decision, those things would fall under the interagency exemption. And just a purpose of knowing where we went wrong, would that be part of the deliberative process? I think that to the extent that it was actually attempting to come to some decisions, some change in policy, it would. If all it was doing was recording for history, I think not. Have you agreed on the Masawi prosecution that does not enter in here at all? Or is there still disagreement? There's still disagreement here, honor. The current state of that is that Mr. Masawi's lawyers have now filed a petition for cert with the Supreme Court in January. So it continues to move on through the system. The, initially the city said all the documents were subject to the law enforcement exemption because of the Masawi prosecution. At the appellate division, that was changed. They now said there are only six documents. We don't know what they are. They have not been specified that need to be withheld. We believe, as did the appellate division, as did Justice Braun, that the city has failed to make the case that any of those documents need to be withheld. That... Protective order somehow impact that? I don't believe... Mr. Court's protective order, no. I'm sorry, Justice Perk. I don't believe so. There is a protective order in the Eastern District of Virginia, and there are rules of the Court and Eastern District of Virginia, which bind the parties before them. Interestingly enough, there was no change in either the order or the rules when the city came back and said only six documents now. In other words, the prosecutors made that decision on their own as to how many documents could be released. Do we know what those documents are? We do not know what they are, Judge Smith. But you are seeking them? We believe that the burden under foil is on the city to explain why the exemption, to show the exemption applies, and fail to do so here. That under either of the two prongs, that interference with law enforcement or would prejudice someone's fair trial rights, it failed to make that showing here. And Justice Braun looked at it and the Pell Division affirmed. There's so much publicity about this case that we're talking about a small addition to that pool and that the normal procedures for boardeer and so forth can take care of prejudice. Mr. McCraw, it's no secret that this attracts attention, not because people are interested in the technical niceties of the freedom of information law, but because it concerns sensibilities of people on both sides. But to what extent should those sensibilities play a part in the foil determination? This is unique because sensibilities do not normally enter into foil at all. And in that sense, it's we're on somewhat uncharted ground. Are the sensitivities, sensibilities, should they play a role? And if so, how do they fall? Your Honor, I believe that when we get to the privacy exemption, Mr. Siegel will expand upon this, that in fact, the test does take that into effect. The test that we propose, based on the restatement, is that you look at the person in community who makes the judgment of whether the disclosure is really prying. Nothing more, but whether it is the disclosure would be something that reasonable people have an interest in. And I think the balance here has to be looked at, but at the end, the public interest in fact weighs out. The other thing that we point out in our brief is that everything in the record comes from family members. We share the sensitivities and the sensibilities, I think you're talking about, Judge, and say we want to see these materials released. Mr. McCraw, I'm sorry. Are you asking us to adopt the test of the Second Circuit? Is that what you're asking for, that three-pronged test in Grand Central Partnership? Is that what you're asking for us to do? And if not, how does what you're asking for differ from that? Your Honor, I have put that test in there as an example. And in fairness, the Second Circuit teased that up not so much as the test as factors to consider. What I would suggest is that what I've tried to make clear in the brief is that the agency must show there's a decision-making process taking place that this communication was part of that process. Whether it's accepted or rejected doesn't matter. Whether decisions made or not made doesn't matter, but that there was a decision-making process, this was part of it. And that it's an evaluative statement. It's a recommendation or opinion. And I believe that test will, in fact, make sure that the exemption is not overused. What is your bottom line on the oral histories? Do you say they must all be disclosed 100 percent? There's nothing you can see that would be protected. That's right, Your Honor. What is your bottom line on the radio dispatches? Do you say they all have to be produced? Yes. Yes, Your Honor, that's right. Down the 9-1-1 calls. At the risk of being repetitious, yes, all of them, yes. We believe that the city has failed to carry its word. Thank you, Your Honor. Thank you, Mr. Siegel. Chief Judge, I'd like to reserve three minutes for the bottom. Certainly. Thank you. May it please the court. My name is Norman Siegel. I am co-counsel for eight families whose son or husband died in the World Trade Center attack on September 11, 2001. The materials that issue in this case comprise an invaluable historical record of what transpired on 9-11. The family members want to learn all that they can about what occurred on 9-11, so that they can uncover information about the last moments of their loved one's lives. But in addition, they believe that disclosure of these materials will provide vital information regarding the management and effectiveness of rescue operations and safety and high-rise buildings. Do you have evidence of families who don't want to hear about this? I have no evidence of that. The city, at the end of the argument in the Appellate Division, sent in a letter when this same issue came up, incited two newspaper articles after the Port Authority last year issued similar tapes, and there were some statements by one or two family members saying that they were troubled by this. But in the record at this point, there are eight affidavits from family members saying they don't believe that there's a privacy interest here, but if in fact there was, they waived that privacy right, but make a very strong, clear, consistent point that they want this information with regard to the question of rescue operations and the question of safety and high-rise buildings. Don't we have to assume, for present purposes, there are some families who feel differently from your clients. That some of the survivors of the 911 callers do not support your position. Judge Smith, I don't think you have to assume that. Under foil, the burden of proof is on the government agency. Do we have any, how many 911, how many people are on these 911 tapes? I do not have that information, maybe the city does. But what I can say anecdotally is that I've been working with family members of 911 for two and a half years. I have never had a single family member come to me on this issue and say to me, you're doing the wrong thing. We don't want this. In fact, in this courtroom today, in addition to the eight that we had to get in within the clock for the period at the Supreme Court when we intervened, there are many family members who have come here today who agree with the eight family members. I suppose hypothetically, there's one who disagrees. Would you say that that person's wishes should be respected or not? It depends on where we wind up, on what the standard is, and of course on the balance. I think that you clearly. I'm really asking what your view is on that. Well, I assume you were going to do that, Judge Smith. I think that what we have here is not just a question about 911. We have a very interesting case that's teed up with regard to the viability and meaningfulness of freedom of information law in New York State. I'm sorry. Can I just ask you that a jump to the conclusion? Your bottom line on that one is that even if there is a family member who does not want the tape of his or her loved one disclosed, you would say that the public interest overrides that? On the facts here, clearly. So what's the standard, Mr. Siebel? What is the standard? I believe, Chief Judge, it's a two-step process. The first thing you have to do is determine whether or not there's a privacy interest. For example, in our brief, we talk about the survivors of the person who made the 911 call. We submit that they do not have standing. They do not have a privacy right. FOIL specifically talks about the subject party of the disclosure. In the context of the 911 telephone calls, it's not the person who's no longer here. And the survivor doesn't get the standing because the privacy interest ends at death. So what you do is you take a look at, in this case, the people who did make the call and survive. And you take into account looking at the third department's Empire Realty Versus Lottery, which said, the unwarranted invasion of personal privacy, which is 87 to B of FOIL. You raise the question of whether it's offensive and objectionable to the reasonable person of ordinary sensibilities. That's the test the Appellate Division applied in this case. No, it didn't. Because what it did, it had other language. It talked about that would be hurtful to a 911 survivor of someone who made a 911 call. Quoted that test, seemingly applied that test, or saying they misapplied the test? Yes, they erroneously misapplied it. So you would agree that the quoted test is correct? In fact, they quote Empire. It's interesting, and it may be in my thinking, one of the reasons you took this case consciously or unconsciously, the Appellate Division, third department ends reasonable person of ordinary sensibilities. I think the city, the times, and the interveners recognize that standard. The question then becomes, is it the involved individual that the city is articulating and that the Appellate Division adopted, or is it what the times and the interveners suggest, a reasonable person of ordinary sensibility and the community at large? We all agree it's an objective standard. And with regard to your question, Judge Smith, you take into account whether there's a privacy interest in the person who's raising the point, your hypothetical of the one family who objects, and you then weigh it and then apply it later on in the balancing, the balance of the privacy interest of the individual in your hypothetical, Your Honor, and public disclosure. The tension is there depending on how strong the privacy interest is and how strong the public discourse is. It has to be objective, doesn't it? Because if it were subjective, it would be completely idiosyncratic and we'd have no rule. Absolutely, I agree with you. But Mr. Siegel, I thought you said there was no privacy interest in the family. Didn't you start out down that line of analysis? Yes, I do, because I think given this record... So what do you balance if there's no privacy interest in the survivor? Well, it's easy then, and the scale is like this. Even if there was a slight privacy interest, hypothetically, without conceding it, the overwhelmingly public interest here with regard to what's in the record and especially since the Appellate Division, when the 9-11 Commission and the National Institute of Standards and Technology, NIST, were able to get the very materials that we're fighting for. They worked out an agreement with the City of New York. They were able to hear this material. Although they agreed to an arrangement that archives this material for at least 25 years, if this material is not released, family members possibly will never hear the tapes because at least 25 years, some of the family members will not be here when that time comes. And in the context of what the 9-11 Commission and NIST were able to disclose limited were things like people calling and being told to stay on your floor. Help is coming were people who called and said on a 9-11 call, I'm going up to the roof thinking that there was going to be a rooftop rescue operation. And the 9-11 operators from what we know, little that we know at this point, did not know. Did not know there was no rescue operation. Just see, these are all 9-11 tapes. So do you take the position that 9-11 tapes intrinsically have no privacy interest under foil? You think that if there is an interest on the balance here, it is slight. Your position is that the family, the survivors, do not have any privacy interest cognizable here. What about the deceased? Did their privacy interest end with their death? Correct. So there's no privacy interest at all here. On those two categories. In the third category, I made the phone call that morning. Thank God I survived. That person has a privacy interest. So you say there's no issue under the privacy section unless the person who made the call is still living? Correct. And even if I'm wrong, I've been wrong many a time, even if I am wrong here with regard to Judge Reed's question, it is a slight privacy interest. And when you do the balance on public disclosure, it's overwhelming. Can you give us an illustration of an operational privacy interest? There's just a hypothetical instance in which a privacy interest would outweigh disclosure. Just give us some illustration of it. I can't think of one at this point. Well, you have to think of one because otherwise it doesn't exist. So I'm asking you, I'm pressing you to say that if there is a privacy interest, then make up an extreme case in which it fits so we have a baseline. Otherwise, you're leaving us with no articulable standard. You're just saying there's no standard. So I have to press you on it. No problem. With regard to the two categories that we talked about before, I think there's not. For the person who survived, depending on if the person in that telephone conversation said something about his wife that was of such a personal nature of a medical information, hypothetically. Tell my wife, even though she has cancer and is going to die in two days, I love her. Okay. I didn't mean to be overly harsh, but at least you've given us something, some baseline where we understand what, at least in your view, an articulable privacy interest would be. Even in a 911 call. Telephone call. Right. So given that, that the non-government employee, because the government employee who's making statements on that phone at that point, I do not believe has a privacy interest because they're a government employee doing their job at that point. But in the hypothetical I gave you, again, going to Judge Reed's question, you compare that to the vital information with regard to one of the most momentous days in all our lifetime. And the fact that family members, we have family members who know nothing about their son or husband. Suppose a family member calls and says, I don't want this information released with respect to my family member. What happens in that case? You measure that by the balance. And with due respect, I would not grant that absolute veto. Again, the question that was raised before by Judge Rosenblatt in the context of this issue and the balance, as much as you want to be sensitive to that issue, the appellate division got it wrong. It's not about being hurt. It's not about being in pain. The standard is, is it offensive or objectionable? And Mr. Smith, if it would weigh, and you say, well, even if there is a privacy interest in some hypothetical case or in an actual case, you balance that against need and the public interest and all the other factors on the other side. Do we have here any instances at all? Do we have a single instance in which there is an objection by anyone in this record? Nothing, zero. And that's crucial. I'm glad you brought it up. Because again, going back to freedom of information law, New York State, not talking about the federal foyer, because you're much more expansive. Judge Kay herself in core college books says that you do not follow foyer. You have foyer. And in the context of that, the burden of proof to exempt documents and material is on my friends from the city of New York. And when they did not put any evidence into the record. Yeah, that would have been an avenue. I mean, obviously they could come into a lawsuit. That's one avenue. And the second thing is They could have gotten that for David's use. Absolutely. They should have, they didn't. But more over on this issue, when the New York Times asked for this material, one of the responses by the city that troubled the family members is they said, one of the reasons we can't give you this is because it will be painful for the family members. They never consulted a single family member. They never wrote them. Is there any case in which a family member is seeking the release of his own relative and the city has refused? Well, the eight families. I thought they, I thought, I thought, are they still in dispute? I thought it was agreed that those are going to be released. Well, even on that, who determines whether Kristen Reagan Hart is on the phone? If Kristen Reagan Hart calls and says, This is Kristen Reagan Hart. I'm in trouble. Ba, ba, ba, ba. Maybe they can identify it. But if Kristen Reagan Hart's talking on the phone and he's a fireman, the city won't know his voice. His mom and dad will know his voice. I understand that point. But in principle, I mean, I thought it was agreed that if a family, that if the family member wants the tapes released, they get released. Is that your understanding of what's agreed? What's agreed is that the New York Times will inspect the records to find out whether the family members, the eight that have been interveners, will be able to get the voices of their loved ones. And what if another eight show up tomorrow? Is there any understanding about what happened? There's nothing yet, but that creates the problem because there are more than eight right now that want. There's more than eight in this courtroom today who want. And I would hope at a minimum that you spell this out so that I hope it's for everyone. But even if it isn't for everyone, that you spell out a process that makes sense so that the family members who want this information will get it. It has to be closure for some of these family members. They don't have it yet. Thank you, Mr. Siegel. Mr. Hoegrogean, good afternoon. Good afternoon. Chief Judge Kay, may it please the court. My name is John Hoegrogean. I'm assistant corporation counsel here on behalf of the fire department. By the way, with me today are Marilyn Richter, who did the heavy lifting in the case. And Alexandra Fisher from the fire department, who also did heavy lifting on the case. And I'm standing on their shoulders as well. Judge Smith, just to get back to that last colloquy there, as to the eight intervening parties, it's agreed they can hear their relatives' tapes, if they can be identified. I mean, this practicality. It also agreed that they'll be made available at the times as long as that's what the interveners want. Yeah, yes. And in principle, would you do the same thing if eight more came in tomorrow? Yes, yes. Given that there might be some practical difficulties. But I think Judge Justice Braun in Supreme Court can deal with that. But yes, the basic agreement is, if people want to waive the privacy interest, okay, they can. You know, when you say that there are sensibilities based on pain and anguish, and other concerns like that, which are moving and legitimate, we're moved to ask why you didn't supply affidavit he says there's not a single expression by a single person that that's true. I mean, we may theorize that maybe there might be some people out there, but we have to think, or at least I do, that if there is a chorus of anguish there, that we would have heard from them. There was an avenue for this, right? They could have written you a letter and you'd put it in the court and say, Judge, don't do this, because all these people don't want to be exposed this way. But there's nothing like that if what he says is true. No, that's an accurate description of the record, it is. I actually asked, I asked about it, I asked Attorney Richter and actually another lawyer who worked with Attorney Richter about that. And the answer was, well, it was apparent. I mean, the fire department and the city, I don't know if the right word is divine. It's no less apparent that people would want information. That's apparent too, maybe more apparent. And how voluminous are these, Mr. Hagerigan, about how many in all? Hundreds, dozens? You mean the documents at issue? Involving the 911 case. How many 9-1-1 calls? Right. But there have to be thousands, the thousands. That's, they're quite voluminous at any rate. A lot, a lot. That's the most voluminous category. So don't you think you might have heard from a couple of people if they didn't want these revealed? Well, there are things, indications of this sentiment, aside from affidavits that we didn't get and didn't put in. I have cited in my brief several newspaper articles where people say, and I think one fellow said, I don't want people to hear my father's last words or something along those lines. It's in my brief. I can't give you the exact newspaper account right now. And if I'm not mistaken, there was a fire department union official, I think it's mentioned in my brief also, who said, well, good for the city, you know, they shouldn't be disclosing this kind of stuff. In terms of not putting affidavits in there, I think the feeling was in the beginning that it was sort of ghoulish to go out to people say, well, tell us that you don't want to have this exposed. Was there any consideration ever given to what I'll call the challenger solution, which is to say, I guess, transcripts, not releasing the recordings, transcripts of the calls with any identifying details and names redacted? Well, yes. I think along the way here, we've gotten a little bit away from... I'm neither one of you asked for that. I don't think. But was there any consideration given to that? Well, I think that's the solution that we're at. Now, we must remember, except for the six documents, there's six documents. Judge Smith, just this week, I did find out what those documents are. So I do know what the six documents are that the U.S. Attorney in Virginia says are his pool from which he will choose stuff to go into the trial. Can you tell us what harm it would do to have them turned over to the times? What harm would do is that... I'm not going to claim, oh, it's going to... People will be shocked and that kind of thing. No, there's a lot of stuff out there from the PA tapes and all this other. However, these are materials that are going to go into the trial. And the preference... They're going to be made public, in other words. And they will be made public at the trial. So what's the problem? The preference... Well, the preference, as I understand it, is that the jurors should hear these materials for the first time at the trial and not in the newspaper. If God forbid, a prospective juror reads in the newspaper what he's going to hear at the trial anyway. Is that such a severe tainting of the jury pool that it would overcome the oil policy? It's how the Eastern District prefers to proceed in the matter. Now, I... I assume that could be covered in voir dire also. If it's so essential that these documents be revealed for the first time during the trial, then in voir dire, people could be asked if they'd previously seen any documents from New York. Could be, Your Honor. That puts a lot of faith in voir dire. But we have a lot of faith in voir dire. I understand. Isn't it your burden under the statute to show that the release of these documents would deprive someone of a fair trial? A fair trial or interfere with the trial, I believe. Well, but you're here... Who are you representing? I am representing the fire department. Yeah, but you're not representing the U.S. Attorney. I am not representing the U.S. Attorney. In this forum, are we focusing on whether a criminal trial is going to be successful? Your client is a city and we want to know from you why, how the city is this served. It may well be that as American citizens, we're also concerned about the fairness of a criminal trial, but that's kind of a... That's a question that's out there in another arena. Isn't that right? Well, under the freedom of information law, documents get disclosed unless they come within this set of exemptions. One of the exemptions is don't turn it over if it will interfere with a trial or deny somebody a fair trial. At the termination, for better or for worse, is on, it's the burden of the agency holding the record. Who's going to be denied a fair trial in another forum and another law system? What we're talking about here is Zacharias Masawi. You're advancing his fair trial rights? I'm advancing the fair... I don't mean to be flipping to a sarcastic. No, no, of course. So are we to consider whether Zacharias Masawi is going to get a fair trial in making our determination here as far as the fire company? I think you do, but I also think it's not something you have to do de novo. In fact, it's something that you shouldn't do de novo. I think as a matter of law, great weight should be placed upon the order of the judge in Virginia. The judge in Virginia has said, I don't want any discovery material. We've been seeing that if we did do it de novo, you haven't made the case. I mean, we can't determine on this record that this release would interfere with law enforcement or deprive someone of a fair trial. Well, I think that the judge in Virginia has said that it would. Now, I don't know. I took a lot of Latin and Greek in high school. I think there's a word I remember, hubris or hubris. I think it means having a certain overly developed sense of self-confidence in a certain situation. And you're saying that the judge in Virginia unequivocally stated that these documents should not be released at this time. It was an order saying, don't release, don't disclose any stuff that's disclosed in discovery. And that should inform our interpretation of the law enforcement exemption. I think, as a matter of law, it should count for a lot. Is that only directed to defendants in his counsel and the people? That's a literal reading of the order. It's a gag order. I'm sorry? It's a gag order. Yeah, yeah. Which is not unusual in any high-profile criminal case. Agreed. Agreed. We're not bound by it. You're not bound by it. We're not bound by it. Of course not. But we're not bound by it. No, we're not bound by it. However, we are bound by the exemption in the statute for the law enforcement exemption in there. And although the fire department's not bound by it, the fire department doesn't want to just go poo to the judge in Virginia and decide up here, well, it's not going to interfere with the trial. So the order of this court would resolve the issues as far as you're concerned. Well, the order of this court? Of course. Of course. I see, but you say you would be showing hubris if you didn't defend the integrity of that trial and you just said here, take it. Is that your point about hubris? Yeah, I think my point about hubris is it's certainly about me and perhaps generally about folks in New York. Well, gee, we're saying the judge says release of this is going to, I don't want the release of this into the public while this trial is pending or going on. But obviously, if we order it, you're bound. And just one last turn, Mr. McGrogan, on this issue, foil exempts from disclosure materials, quote, compiled for law enforcement purposes. Were these materials compiled for law enforcement purposes? Yes, Your Honor. And as the Appellate Division and Justice Braun found, they were compiled, they were pulled together, one of the definitions of compilation, they were pulled together by the fire department, by Ms. Fisher, I believe, to for turning over to the FBI. I see, the original records weren't made for law enforcement purposes, but they were culled from the file for law enforcement. Yes, they were compiled in that sense. And just one thing I'd say about that, compilation, all right, there's different definitions of compilation. But if you define it real narrow, then what you have is, well, it's not compiled. So even if it does interfere with somebody's fair trial rights or interferes with the trial, well, it's not compiled. Send it out there anyway. And that can't be right. Could I ask you to talk for a minute about the oral histories? Yes, sir. What, is it your position that these people had an expectation that what they said would be held in confidence? Our initial understanding at the law department was that everybody was promised confidentiality. That turned out to be wrong. Some of the folks who gave oral histories apparently were said, oh, yeah, these are going to be confidential. But the record doesn't identify which ones those were. No, I'm not even sure that that's... Is that something we have to put aside? Can we rely on these promises of confidentiality? I'm not relying on it in my argument. I'll put it that way. Is there anything in this record that indicates what decision-making process was ongoing with respect to those oral histories? Other than just creating a database of people's remarks? Yeah, looking at that in two ways, Judge Grafio. There is in the record, I think it's page 175 of the record, again, an affidavit by Attorney Fisher here. There's a list of things in the oral histories, such as, you know, that route was terrible. We should change that route, or we should do this. We should change this. Matters of that nature are in the oral histories. But if the man who said it thought he was talking to posterity, thought this thing was going to be published in a book, what is the point of our protecting it under any foil? Well, I mean, there's no... How should I put it? I don't think there's any one purpose for which these things are given. I mean, yeah, they're oral histories, and they're also, within there, are non-historical matters, recommendations. Who gave it that name, oral history? I don't know, I don't think... Because that in itself connotes some, the assemblage of something to go on. Yeah, I'm not sure that they were originally called. You know, I think that just sort of happened, sort of a shorthand, as I understand it. Is your position that they should not be, that we should say nothing about them, you don't want them released at all? No, no, no, no. Or would you release part of them? Yes, yes. This is where I think we sort of got factually waylaid earlier in my argument and before that. The oral histories, most of those, most of the body of those are going to be disclosed. I mean, there's no dispute about that. All the factual matter in there, and most of it, I would guess is factual, it's going to go. I mean, it's going to be disclosed. The only thing we're talking about, about the oral histories are some of these matters that are recommendations and opinions about technical matters, which are going to be considered. But you agree with them? It sounds like you're both saying the same thing. That's hard to understand. That's, what exactly do you mean by that? Factual matters, all right. No, no, I understand factual matters. I'm inquiring into what you are intending not to disclose. The sort of matters that appear in page 175 of the record, which I guess I have open to right here. Let's see. Another member explained similar attempts to set up a command post for his bureau. Based on his years of experience, it was his opinion that the department was not capable of putting out such a fire. Opinions of that reason. That's a technical recommendation. Well, that one sentence isn't. I'm assuming that one sentence sort of describes a... So what is it that you're going to be withholding on your view of this oral history? Well, what I would like to withhold, what the fire department plans to withhold, or things should be withheld, are opinions and recommendations addressed to fire department practices and procedures that didn't work that day or weren't implemented that day, something of that nature. And who makes that determination? I would say that the fire department makes that determination. Oh, well, how about a JSC making that determination? How in the world... I mean, you're saying almost the same thing. Mr. McCraw is saying decisional process, decision-making process. You're saying opinions relating to procedures, they're almost the same thing. Someone is going to have to be the arbiter of it. You're in a court of law. A judge is going to have to decide because you're using virtually the same terminology, which it falls into. So you have something that sounds almost like a stipulation here. Almost. I think we're not that far off. Well, I'm concerned. I don't... You think any expression of an opinion is entitled to be withheld from FOIL production? I haven't seen that. Any, I don't know if I could say that. Or I mean, isn't the presumption that these are public records and public documents? Yes, they are. Yes, they are. And by the way, my red light went on a while ago. Yes, please, Mr. Hagerby. And we would prefer that you continue. Thank you. I'd like to... Suppose hypothetically that the person who made an opinion or recommendation expected what he said to be public. Thought he was speaking in effect through the fire department of the public. Doesn't that end the matter? I mean, is there any reason... Is it still an intraagency communication? Isn't the whole point of the interagency exception to encourage people to speak that might be inhibited by the fear of... Yeah, that's the policy behind the exemption. You're right. If somebody wanted it to be disclosed... If somebody came to you and said, I want to interview you so that the world will know what happened on September 11 and the world will know what the fire department did. If you understood that was the point of the exercise, what is the point of preserving confidentiality for any other result? Well, Your Honor, I don't know. I don't have anything concrete like that in the record. The only thing I can say that's sort of similar is that the intervening parties of my brother here waived their confidentiality interest as survivors. Could that happen to somebody who provided an intraagency opinion? Perhaps? I really haven't focused on that since I don't think the record addresses it. Could I keep going just for a small bit? Well, I just want to press you for a moment. Yes, I didn't answer your question. No, you didn't. Yeah, no, no, right. I noticed that, too. Remind me of the question. Well, I'm trying to find the line between what you would agree should be turned over of the oral histories and the radio dispatch materials and what should be withheld, your view. And I understand factual material. Which is the bulk of it. But I'm concerned about what in your view should be withheld or could be withheld. I think what should be withheld for most what the fire department believes should be withheld are opinions and recommendations. Now, opinions and recommendations in those documents are being considered. Now, in Ms. Fisher's affidavit, it says in there that there's an ongoing review process and an ongoing reevaluation process. And I would say that the opinions that people give in there should not be disclosed. How does criticism fit into that equation? Criticism, I believe, would be an opinion, certainly. I think criticism... So any critical statement then doesn't have to be disclosed? I think in this setting here, in this particular case, I can't draw a broad line across the board, but... That's a rather dangerous way to describe opinion, isn't it? It's not in line with the purpose of freedom of information. My understanding of the purpose of freedom of information is disclosure of factual material. I don't think... My understanding of it is opinions, criticism, and such matter. There are other avenues for that to get out there if people want to talk to the press or whatever. My understanding is that the key... The freedom of information is facts. You know, what happened? What were the resources? How much money? That sort of stuff. Criticism, I just don't think so. I think that comes within the opinion. So question on the United States attorney, the criminal trial, is it your position that those records that are going to be the subject or part of a criminal trial be turned over after the trial is over? Yes. And then the appeals? Yeah, at the end of whatever... In a determinate date. Yeah, I mean, I haven't actually sat down and thought at what stage, but yeah, when the case is over... I guess they could be revealed when they've been revealed publicly, couldn't they? Yeah, yeah, yeah, yeah. And I suppose, I mean, again, I haven't thought it out. Let's say out of those six documents, two were used at trial. Again, I can't give you a guarantee, but I suppose the four that don't get used can get turned over at that point. I'm just going through my whole list here. I don't think I'm going to be able to get to everything. The most important, and not the most important. The one that covers the most documents, the most records here is the privacy exception as it applies to the 911 tapes. That's voluminous. Could you? Could you? The other stuff is limited in terms of words. Could you discuss the dispatcher's calls? Are you saying that they should not be released or they should be? The dispatcher's calls will be redacted only for intra-agency material. The dispatcher calls is one unit saying to another unit, get over to such and such. There's no claim of the privacy exemption on that stuff. I don't believe there is. No, no. By the way, again, pardon me for running over. There's one factual thing we need to get straight about the privacy redaction of the 911 tapes. The privacy redaction of the 911 tapes is of the caller's words. It's just the caller's words. So we had some discussion before about, well, we have to know if the dispatcher said go up to the roof or if the dispatcher said stay there or that kind of thing. But we're not redacting those words. Suppose we come out with a test that we formulate by saying that everything is turned over except those utterances that amount to facts or opinions that comprise the decision-making process. In terms of the intra-agency exemption. Well, that's, you'd have to tighten that up a little bit. Well, because it's different, different, the way that you describe it, just as my initial reaction is, the process goes from some guy saying, holy Toledo, things are chaotic here. Why didn't, blah, blah, blah, why didn't something? I tell you now, if the test you want is to rule out criticism of an agency, that's not a test that is easily on the table. I understand, I understand. But that falls within your test that criticism is the kind of opinion we don't like to hear. And you're excluding all opinion. I am, right, right. I guess we have a lot of absolutists here today and a lot of absolute tests. Trying to help, what do I do? Is it part of the purpose of the intra-agency exception to permit people who want to, to give criticism and keep the criticism private? Yes, absolutely, absolutely. That's maybe the core, core of it. You say opinions and facts that go into the decision-making process unless the opinions are critical. That's a tough, that's a tough thing to ask for. Yeah, no, that's, I don't, that's what I would ask. So go ahead, take another shot at it. Opinions or recommendations that, oh boy. Are integral to the decision-making process. Integral to the decision-making process, which either identify a problem, certainly they try to improve something. Well, you're now practically word for word with McCraw. Almost word for word. I don't think McCraw and I are far apart. I think what McCraw, I'll tell you what I think. Mr. McCraw and I are, I think Mr. McCraw or not. Mr. McCraw, I, no, and he'll correct me if I'm wrong. Very, very shortly. Yeah, I, yes. His position is, his position is, it's all factual stuff in there. There aren't really any opinions, I think. And I say that there is. Thank you, Mr. McCraw. So do we have, have we reached an agreement here? I don't believe we have. I do believe that there are opinions in there. I don't believe it's all factual, but I don't believe. Isn't that the test on the face of the statute? Statute says, it says you don't disclose interagency documents unless they're factual. Yes, and I believe. Isn't the concession you just made end the discussion? No, I believe, no, Your Honor, I believe that the interpretation of this court beginning with Russo and Gould and so forth said that interagency is defined as deliberative materials. The mere fact that, in effect, the mere fact that it's not a final determination or any of the other three enumerated categories doesn't end that they need to be deliberative. And my point is that there are opinions in here that are, what I would think of as opinions in a vacuum, criticism not designed to make a decision. You would agree that criticism is sometimes protected? Yes, it is. If it's part of a decision making process, it has to be. But be able to identify that this communication was part of a process connected to that and then looking at the communication itself that it was evaluative. It was opinion or recommendation or something like that. And is it enough for it to be, to try to figure out ways to improve the way we fight fires in tall buildings? If there were a formal procedure, or excuse me, formal probably goes too far here, but if there were procedures to attempt to do that, what I see, the first time in the record, I see any attempt to make this into a decision making process is after litigation begins. When they're talking beforehand, it's about history, it's about letting the families know what happened. Isn't it, when you're, for a city employee to express an opinion about the function of his or her department, isn't that almost normally and naturally part of a decision making process in a broad sense? It usually isn't completely idle conversation. What's the point if it's not to have some effect on what they do? Yes, there's no question that in the course of the conversation, then the course of conducting agency business, people give opinions, they criticize, they praise, they do whatever. And I think that- How would have been out of the dispatch calls, wouldn't it if somebody in the course of the dispatch call said, gave the opinion that they better get an awful lot of firemen down to ground zero fast, that's deliberative. I see any decision making going on there as being incidental to what is happening. That is that it's an operation, it's an execution of an operation. Well, they had to make a lot of decisions on September 11th. I agree, Your Honor, but if somebody- Somebody had to make comments on what decision should be made. Admittedly, it had to be made very fast. The comments may not have been very detailed, but surely there was a decision making process. If someone videotaped a surgery, it's no question there would be decisions making, decision making going on, but we wouldn't think that the essence of that process is decision making, the essence of that process is surgery, same way as the rest. It sounds as if you're defining the exempt materials by a time requirement that something that's decided instantly is not exempt, but that a deliberative process must be ongoing over a longer period. Is that- Is that correct, Mr. McCrough? I don't think time alone would be the hallmark of that. It would be the test. I look at what the records are. The records are a record of an ongoing emergency operation. That record was not created as part of an attempt to make a decision. The decisions that are being made there are largely incidental to the overall operation. So if the fire department had a task force, would they have to have a task force set up to study X? No, I don't believe so. No, it's not that narrow. No, the commissioner wants input on some decision that's going to be made. And I think the decisions are as much as I would like to read them some other way. They make clear that less formal decisions, the arrest reports, witness reports, in Gould, for instance, they were part of a process though and that's what I look for is- Why not the process being how, as I believe Judge Reed asked earlier, how best to fight fires in tall buildings? And then everything that went on in the oral history and in the- Why wouldn't that all be that kind of relating to a deliberative process? I would agree that it would be, but that is not what I see in the record here. What I see in the record here is doing oral histories in order to capture the history of the event and to allow families to know what happened, their loved ones. By the way, did they call it that for the beginning or is that something that in the request that you asked for oral histories or how did that term get introduced into this? Did the department label these oral histories? I'd have to look at- There's a time story in the record which was the first account of and I think the term was used there. We embraced it. I would speak to the compiled for requirement, but in the absence of time, I'd simply ask you to look at the brief on that. Do you agree that no matter what we do here today, our decision must take the form of a remand to Supreme Court to parse out based on- to parse out what is disclosable based on a rule that we articulate, giving as much guidance as possible to the JSC. Is that the formula that is absolutely necessary here? And more- I don't believe, Your Honor, that's absolutely necessary. I think it's possible to rule as a matter of law in such a way that all the materials would be disclosed. Now that we just say- just write up and say give everything over. No, nothing. I mean, theoretically that's possible, but as a realistic matter, wouldn't you expect us to say this has to go before, kind of for an in-camera JSC to look at it based on wording an articulated standard that we can make as useful, explicit, and helpful as possible? I certainly think that is one likely outcome, yes. Even the six documents you're saying ought to be released or shouldn't this court respect the judge in Virginia who has passed that they not be released? Your Honor, may I speak to that point? The U.S. Attorney's Office represented, but that's what the order said, represented that the order prohibited the release of any documents. The U.S. Attorney's Office then came back without ever going to Judge Brinkama and said, oh no, it only requires this to hold six documents. When the New York Times- the New York Times went to the court authority to ask for very similar documents, the court authority said, unlike the fire department, if it's okay with Judge Brinkama, it's okay with us. Could you just- I'm sorry. I mean, that sound is- Yes, maybe that telephone could be turned off. Yes? Could you just repeat- Oh, yes, I'm sorry. That the U.S. Attorney has never gone back to the court in the Eastern District of Virginia and asked for a clarification of the order. The U.S. Attorney's Office has made its own determination of the scope of the release and changed its mind in the middle of this litigation. Couldn't that be respected? Your Honor, I think that it's evidence in the record, which as the course below looked at, said it simply defies credibility. The other place I would direct you to in the record is that there is a second supplemental affirmation that I made, page 319 in the record, where I describe what happened with the court authority in that the court authority told us they would turn over the documents if the Eastern District of Virginia allowed it. We made a motion in the Eastern District of Virginia. The U.S. Attorney's Office came to us without going to the court, said we will give you the documents, the exception of four, if you'll withdraw your motion. They did not think that they needed to go to the court to get permission to do that. Did they give you the document? Yes, they did. Well, yes- So you're down to two? Yeah. So it's only two documents that are in the court? No, from the court authority? Off of the court authority. Yes, this is from the court authority. We ultimately ended up- I'll save you the long story of that. But so to me, that what's- that the city got it right from the beginning in our system, this is a foil matter to be determined by the New York State Court. They have not suggested anything other than you should second guess what the Appellate Division has done. They haven't said there was a long wrong legal test or anything else. Thank you very much. Mr. Siegel? In regard to Judge Reed's challenger possibility, first the- that case deals with the challenge in New York Times versus NSA, where the D.C. Circuit, I believe, said give the transcripts out, but not the tapes. First, the city has not offered the transcripts. If they offered us the transcripts, of course we would take the transcripts, but we'd want more because we want the tapes. And the importance of the tapes is that there is background information. We already know from the 9-11 commission that there was public announcement statements. If you got just the transcript, I don't think you'd get the background information. And again, that's vital to find out exactly what went right and what went wrong that day so that we can look forward to the future to make sure that we learn from the past. When you do background information, do you mean things that would be overheard? Yep. The public announcement system, there was- people said it broke down, but then the 9-11 commission and listening to some of the tapes was able to point out in its report that there were announcements on the PA system. So that's why a transcript alone is not adequate. Second, it goes back to the foyer versus foil. I believe that New York State's freedom of information law is much more expansive and correctly so with regard to the right for the people to know. Third, all seven families involved in the Challenger were involved in that case and unanimously did not want the material to be released. We have just the opposite here. I won't be repetitive. Eight families after David's. It's a question on the- and I'm directing it to you, but I think you can answer it perhaps on the cross-behand. We're sensitive to, as you can see, our another system, the federal system and a fair trial in another forum. Would it make sense if we're going to deny release of those tapes? That's that. But if we are inclined to grant release, that we say that they're to be released but subject to an application by the U.S. Attorney before the JSC, trying to explain to the JSC why they should be withheld and for the JSC to then make that determination below, does that make sense? I don't think you need to do that. Because if what Mr. McCross says is true, then that would be the end of it. The U.S. Attorney would say, sure, unless the judge tells the U.S. Attorney go in there and guarantee the fairness of the trial. Wouldn't that be- I think based on the record here, the order only is specific to the parties in that case. U.S. Attorney put in an affidavit, didn't he? Yes. So presumably the court below knew what he had to say. Yes. And I think that Chief Judge Kaye hit it on the head. I mean, vigorous voir dire will take care of the problem. The Supreme Court judge in this case was eloquent on that point. And I think that takes care of that issue. I think that the argument that Ms. Owie will somehow not get a fair trial where his investigation prosecution is going to be unfair because of the release of these documents, especially when he has them. I don't know if anybody's worried to death about him getting a fair trial where as concerned about the United States government getting a fair trial, so it's not on one side of it. It's just that both sides should have a fair trial. Let me just say, if I thought for a second that there was a question of an unfair trial, even for an unpopular person like Ms. Owie, I would not be here saying what I'm saying. I don't think there's a shred of evidence in the record here that says that Ms. Owie won't get a fair trial. He obviously has a considerable pre-trial publicity problem, but I mean, this is not going to make it a lot worse. It's not going to make a lot worse than I think with all that you just said, Judge Smith, he's still going to be able to get a fair trial and the government will be able to get a fair trial in its prosecution because of our jury system and the checks and balances that take care of that. You have to have faith in those systems. I believe in them 100%. I think it takes care of it. I want to point out that this Court 11 years ago very clearly stated that FOA was enacted to provide the people with the means to access government records, to assure accountability, and to thwart secrecy. I respectfully submit that's exactly what the family members, my clients, are asking for. I also think that historically, the judiciary plays a safety valve. And I like some of the suggestions that I'm hearing from members of the Court when the executive branch in this case, even a fire department, does not comply with the rule of law. It's incumbent upon the judiciary to step in and protect the rights of the people who are sitting in the back of this room. Should there be any procedure for those who don't want these things released? Should there be a procedure for consulting them? Well, with the record, the answer is you don't have to worry about that now. That's a hypothetical question. And I think that I think the record is strong enough right now that you can write a very clear, eloquent statement of the meaningfulness of oil in releasing all of the documents. And we just ignore those persons if there are such persons. They're hypothetical at this point, Your Honor. Yeah, I think Judge Smith's question is really should we do something to find out whether those hypothetical people really exist or not? Well, you know, the courts below had that opportunity. No one chose to do that. Also, Judge Rosenblatt, none of the judges below took the opportunity to review any of this material. To review any of the material in camera. Thank you, Mr. Siegel. You can watch this program and others on the judiciary by visiting cspand.org and clicking on America and the Courts. Join us each week for programming on the Judicial Branch. America and the Courts airs Saturday evenings at 7 Eastern, 4 p.m. Pacific. Tonight on American Perspectives, the annual Congressional Dinner hosted by the Washington Press Club Foundation. Then later, thoughts on academic freedom from opposite sides of the political spectrum. In about 45 minutes, Professor Ward Churchill defends his writings about the September 11th terrorist attacks. After that, David Horowitz discusses conservative thought on college campuses. But first, the Washington Press Club Foundation Dinner. The featured speakers are House Majority Leader Tom DeLay and Illinois Senator Dick Durbin. It begins with an award presentation to the late columnist Mary McGrory. Years ago, the Women's Press Club, there's that name again, had an award for outstanding accomplishment. We've brought it back as the life