 Okay, the plan for the rest of the day. Just you know, this is our final panel on legal perspectives And then we were going to go right into open summary remarks from Steve Gorlich and then we'll have a Q&A free-for-all As long as everybody No throwing chairs and we should be fine. So this panel of all the the moderators they were drawn because they have some particular expertise that Gave them some authority to speak on the panel Well, that's true legend and of course for this panel we ran out of experts And so I have a no authority other than having watched a lot of TV shows and been sued once to To do it, but it's in many ways. It's a very well. It is a very auspicious panel and let me introduce them without further delay and You very seldom get a chance to say ripped from the headlines, but in this case I think it's the only time I've ever been able to say it and it's accurate is of course Norman Siegel and And Sally you're gonna have to there's no physical demonstrations of a lot of the panelists and so Norman if you don't know his very noteworthy he just finished a Murder trial successfully and also represented the the Bolliners in Maine and Thankfully that went well, I think and he could certainly a pine on it and she's healthy and And so he's well known as a civil rights and civil liberties lawyer He's a graduate of the Brooklyn Brooklyn College and NYU School of Law He began in 1968 with the ACLU the Southern Justice and Voting Law Project and And he's been involved in civil rights and civil liberties issues since that time He was executive director of the New York Civil Liberties Union starting in 1985 and For the next 15 years. He was doing battle with the city of New York After 9-11 he was Instrumental as we've heard this morning in a lot of the efforts particularly the joining with the Skyscraper Safety Campaign and the litigation against the city for release of the 9-1-1 tapes He's presently In the his firm Segal title bomb and Evans which handle a wide variety of legal issues including civil rights and civil liberties And we're happy to have him here today To his right is Daniel Clough. He's from Hartford, Connecticut The offices of Mackleroy, Dutch Mulvaney and Carpenter. He focuses primarily on First Amendment issues and media law He's also an adjunct faculty at the University of Connecticut Law School where he teaches privacy law He's frequently quoted on First Amendment and privacy issues author of numerous articles and columns on appellate practice and First Amendment issues and He's immediate past president of the Connecticut foundation for open government and has received numerous awards for his work on behalf of government access and Transparency including the Society Professional Journalist 2009 Helen Lem Loy Freedom of Information Award the Connecticut Council on Freedom of Information 2007 Stephen Collins Award and the Connecticut Bar Association's 2007 Pro Bono Award. So as you see is uniquely qualified and confident on these issues and and to his right is In a panel of great people a even More storied and impressive background the honorable George Bundy Smith senior. He's a retired judge for the New York State Court of Appeals He's the at 14 year term on the Court of Appeals He's currently working on Alternative dispute resolution and in fact he's one of the only panelists that the Center on dispute resolution Saw our publicity and they were excited that the judge was going to be here And so they said I'll let this send and send this out to our members as well So we didn't even know he was famous in that realm He's spent his life committed to the pursuit of justice. He's received myriad awards And since 2006 he's a partner in the national international law firm of Chadbourne Park Where he specialized in arbitration mediation commercial disputes the state's property appeals and trials And he was a sitting justice for the 9-1-1 tapes case brought by the New York Times and joined by Norman Siegel so with that I think Daniel Hau was going to make some opening remarks Thank you. Thank you very much. It's a privilege to be part of such a terrific panel Norman and I were talking and I thought it would be useful to give you a 90 second Primer basic primer on freedom of information to sort of put some of the more substantive comments will make in context Our government has three branches Both state and federal usually three branches executive legislative and judicial the Constitution the federal Constitution Guarantees open courts public trials, but there's nothing in the Constitution That says the executive branch has to show the public what it's doing. There's nothing in the Constitution that says That the legislature really has to be in public so freedom of information laws are creatures of statute and Generally, they arise in response to some great crisis and the crisis that gave rise to most contemporary freedom of information Laws was Watergate I think it was the now mayor of of Chicago who Once said a good crisis is a terrible thing to waste and the only thing good that might have come out of Watergate is it inspired Governments around our country state local and federal to pass Meaningful freedom freedom of information laws now. What do they do Tom Robbins on the previous panel said I think quite simply They establish a presumption the government's records are the people's records and any person For any reason can go in and ask to see a government document a public record and Then the burden is on the government to point to some Exemption that would justify withholding disclosure so that presumption is very important That's what the law says I see a little laughter because it doesn't necessarily work that way in reality but the law says that the public has a presumption of Access to these documents and the burden is on the government so what you have our fights over when what kinds of exemptions should you have And you have the list of exemptions grows longer and longer into the federal act and the state act You're there usually exemptions for law enforcement to keep information from disclosure while there's a pending law enforcement action there are exemptions for you know national security documents and And and lots of other things what there frequently isn't is a general privacy exemption Or when there is it's language that we've heard today a document shouldn't be released if it would release result in an unwarranted breach of privacy So or an invasion of privacy and that's what leads to the debate in specific cases about the public's interest in disclosure versus a Victim or a family member of a victim having to suffer the the trauma if you will of having Information that may be very personal emotional Release and it's the struggle to balance that that really is I think at the heart of this program The only thing I want to say on that and then I will be quiet is this It is impossible in my opinion Absolutely impossible to design a legal rule You know a statute or regulation that defines perfectly when information is Sufficiently private that it should outweigh the public's interest or vice versa. You cannot have a perfect rule Human it's beyond our capacity as humans. So what do you do if you know that? It's impossible to design a perfect rule. You have to air one way or the other and In the First Amendment context the Supreme Court has said repeatedly We're going to air on the side of more speech when we design our rules addressing Defamation for example, we're going to set them up so that we air in the side of more speech That means That means that there is going to be a cost at times Someone is going to be defamed and the defamer is going to get off the hook because We are airing on the side of more speech. I think the same thing is true in this privacy versus public disclosure Context we have to decide which way we're going to air Personally I think That history teaches us you need to air in the side of more disclosure Even though that at times will exact a very real tangible cost on Individuals whose privacy is invaded. I'm not saying everything should be open to the world 100% I am saying that I think designing a system where you air in favor of more disclosure rather than less is the way to go Okay, thank you the judge. Do you have any initial thoughts? Well, I agree almost entirely with the First speaker. I think he's right on the money I think you should air on the side of freedom. These things are going to Come out on the other hand. I think if there is something People will say I do not want this to come out I Have a member of my family. They would say who has been raped Who doesn't want it to come out? I don't think that should come out and for that reason in choosing juries If there is something that may be embarrassing or very private to a person You call that person up to the bench and ask him or her. What is it? And you may even excuse that person because of privacy concerns So while you try to air on the side of Devulging these things. I think you've got to also Air on the side of privacy Okay, Norman well before I begin I want to thank Charles and Glenn and others who are inviting me here It's an honor to be on this panel with Charles and Daniel, but especially to be with the judge You're seeing someone who in my opinion is a great American I first learned about George Bundy Smith when he was at Yale Law School Which in my opinion is the best law school in America and he'd left there to be a freedom writer back to if I remember 1961 And I've always admired the people who rode those buses in order to bring to attention to America the racism in Alabama, Mississippi, etc. And to take that risk that you're going to leave school and a Prestige of school. I've always thought those people were very special Americans This judge here with his intelligence his compassion and passion as you'll hear I'm sure during the next 45 minutes on this panel he's a hero to me and If we had more judges like George Bundy Smith in the system They'd be a lot less cynicism a lot less alienation and we really would achieve Justice and fairness for all so thank you for all your good work That doesn't make him perfect And on this case I'm going to try again today to win his vote over on the case New York Times Catherine Reagan Hart at all. There were seven other families in addition to the Reagan Hart family the centuros who were here Were part of that historic lawsuit Let me put that in context There were three distinct Items that we were trying to get First the 9-1-1 calls and that was calls from people within the buildings potentially people from outside the building on the 9-1-1 emergency system and the result of the litigation was in the Supreme Court the appellate division and then to the Court of Appeals Where there are seven judges? We won some of the things we didn't win everything the vote was four to three And the result was that on those tapes the operators voices could be disclosed Second the eight families the Reagan hearts the centuras and the other six families Their voices or their loved ones voices could be released because they waived the privacy In retrospect when I was reading the case again last night, maybe we made a mistake in not Organizing to get the other families to affirmatively waive their right in order to have those documents released Because as I'll mention before here. Let me jump to it right away Once again the government Decided that they speak for the families. There was no evidence in the record that the other families Did not want the information to be released the majority said that we know that there's eight families But we don't know that the other families Wanted to be released or not to be released. So in the absence of evidence to the question The city of new york Took the position that the other families did not want and the court the majority went along with that The current fight that we're fighting and we won't rest on this fight because we've learned Is that they're doing the same thing now about the human remains at the museum They take the position that they know What the families want They take the position that they speak for those families. There's no evidence to that in fact We've done some surveys of our own And 95 to the families at least 300 families that we've been able to contact Don't want the human remains to be placed 70 feet below ground at this 9 11 museum And yet where the remains they're there So in retrospect on this issue Maybe we should have and we still could Get families to waive their rights so that if their loved ones are on The 9 11 phone system. We get it footnote there If any of us around Come september 11 2028 We should all meet because and looking at this room. Some of us will make it Maybe a few us won't be there. Let's say 28. What are we now 14th? That's 14 more years. I might not be here So so somebody else got to carry this on and the reason there is there's agreement that all these documents that we didn't get Will be released They're keeping it for 25 years. So we're about halfway there So for those of you who are young enough or healthy enough Remember september 11th, 2028 because we need those documents for some of the reasons we said before Now the majority wrote. Oh, yeah, and so it's not okay to the others So all those other people on those 911 Calls We don't know what they were saying The bottom line and I'll quote the court. We conclude that the public interest In the words of the 9 11 callers is outweighed By the interest in privacy by those family members and callers who prefer those words to remain private There's a terrific dissent Three judges dissented and they took the position that the public interest Uh was more important than the privacy interest and they also recommended as you heard in the previous panel Well, there was a middle ground rather than giving out the tapes Give out a transcript of the tapes because that could be less Hurtful or painful for people But the majority didn't go there. I would imagine the award discussions in the court But we never got that part The second area was the dispatch calls And that was communications within the fire department personnel So department dispatches and other department employees And the court rightfully in my opinion took the position. Well, they're public employees Their privacy rights are a little different than the public itself And they released these tapes To the extent that they consisted of factual statements or instructions affecting the public And that language comes from new york's freedom of information law that If it is factual and its instructions affecting the public the public has a right to know because as dan said The great part about foil and its theory is the government's business is We the people's business And they said that they would redact nonfactual material opinions and recommendations And here it appeared the court Was and maybe the judge could elaborate on it that there was a concern for the employees opinions On the tape that should not be made public my position Is that that information should have been released Because again, they're public employees and therefore if they're on the public Dispatch system that information should not be by definition private And finally the third part was the oral histories fire department call people in They interviewed people most important. There was no promise of confidentiality So anyone who was being interviewed Was in promise that this would not be made public. In fact, the court said the majority Quote spoken words recorded for the benefit of Parity So They disclosed this under foil and they made one exception too and they said if it would cause Pain or embarrassment To interviewees if disclosed so if someone was saying something And they said something that if it may became public They would be embarrassed or pain uh I disagree with that because They were on notice that what they were saying was part of their job And whatever they said should have been made public. So in summary on those three parts We in fact got a lot Of what we wanted, but we didn't get everything and the dissents said That it was important to have all the information now If Charles the moderator and other people want I can do the following I went last night into my archives And your honor I have my binder that I presented to you and the other six The court of appeals was a wonderful room And the nicest thing about the court of appeals The podium is so large That you can put your kitchen sink. You can put everything you want on that podium and you can hold it I know the first time I was there. I was like that Because it's a very prestigious group of people Even today, but not as prestigious when you were there in my opinion And it's a wonderful experience for a lawyer to be up in albany in that room So if you want I can read a little of what I was trying to persuade all of them including this guy Of the point should I do some of that or you want to do something? I'm not going to get between you and this so uh, let's let's go Judge you get ready If you want you could respond I start off The materials that issue here The ones that I just mentioned Prize an invaluable historical record of what transpired on september 11th 2001 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 ones lives But in addition, they believe disclosure of these materials Will provide the public with vital information regarding the management and effectiveness Of rescue operations and safety in high-rise buildings exactly what the christin reagan hart center is all about What went wrong, but also what went right on that day Disclosure will assist And stimulate efforts to build safer buildings and plan more effective rescue operations So that in the event of a future similar terrorist attack god forbid the loss of life will be minimized As family member kathryn reagan hart has stated I had to use kathryn because that's her legal name And if you're in court, you can't put nicknames or whatever No, I talk about your age yet We we need to learn We need this is her quote and it's terrific We need to learn how the problems that emerged during september 11th can be fixed And firefighters like my son christian can save people next time. There's a catastrophic event If you are ignorant of the past You are condemned to the past If what happened on september 11 is shrouded in secrecy We can never make any improvements The 9 11 commission reports states quote although americans may be safer They are not safe For americans to be safe. It is crucial to uncover and analyze what transpired on 9 11 We need to look backwards to look forward Without disclosure of all the information that would actually occurred We're in no better position to protect ourselves in the future a theme that recurs over and over again This court seven of you Above have the power to release the information sought on this appeal If you do not the vital information will remain sealed for at least 25 years pursuing to an agreement Between new york city and the 9 11 commission Who gave the city permission to seal all of this for 25 years? Did they ask any of you for your opinion of whether you wanted to seal it? Of course not But that's the way they operate. They think that they know what's best for us The family members that I represent hope something positive can come from this horrific attack Needling building safety and more efficient and effective rescue operations The respondent city of fire department has so far deprived the public of the benefit of the requested information through we submit Intolerably strained and expansive constructions of the exemptions to foil. I actually got a little eloquent there We further submit that none none of the fire department's arguments resisting disclosure Of the contested documents is supportable Under foil So that's just a little i'm not going to go on with all of it a little I'd like reading what I wrote 10 years ago and did but the main point here is I think dan touched upon it We have to recognize that In a constitutional democracy, which we have That when the government is doing certain things if we believe that they're doing it Unconstitutionally or even wrongfully We the people need to speak up If we don't speak up the government's going to continue in my opinion to trample on our rights And speaking up can be as simple as in a room like this on questions and answers you get up to the mic And you tell us what you think writing a letter to the editor Holding a sign and picketing or as the Santoros recently did they put some You know stuff around their mouth When they were trying to make the point that on the decision on 9 11 human remains They were being gagged No one was asking them that picture went internationally went all over the world And people began to understand that and i've seen those pictures that same tactic being used by other people and other nations all around the world And then finally if that all doesn't work Which I always consider the court of public opinion There are lawyers out there who are prepared and are skilled to bring the kind of litigation To present it to the judiciary and on the judiciary I want to say from my experience in the south in the 60s and 70s And up south now in places like new york or even recently in main really up south There are judges like george bundy spiff Who are there who believe in these principles of freedom and justice and quality for all And I believe I remember when I once went to justin william o douglas to stop the bombing of cambodia By the nixon administration because the constitution says you can't go to war against countries unless congress declares war Article 16 but nixon decided he was going to do it anyway And there are judges out there I believe who are waiting for those kinds of cases because they believe in that role And the courts play the safety valve When the executive branch of government and the legislative branch of government because of the politics They're fear about not being reelected. They're fear that the majority of the people will oppose if they do the right thing lack of leadership for sure But when they don't do the right thing The independent judiciary Is the place to go Now that doesn't mean you win it all the time It doesn't mean like in our case we didn't win everything we wanted, but we won a lot And even though i'm critical of the majority decision the majority decision gave us Certain information and wrote precedent with regard to the importance of foil So the message here is you have a role in that constitutional democracy if you don't speak up It won't happen If you don't speak up your rights will evaporate and once you lose them you ain't getting them back So the message here is participate be informed And fight for your rights. Thank you. Let me ask Let me ask both of the of my colleagues on the panel a question Brass tax as lawyers we tend to deal often at With generalities rules which are abstractions But at a certain point in time in a particular case like what norman was described you have to apply this abstract principle To a specific case. So here's my question for all right, there's a woman on One of the I can't remember which floor of the tower and she's on 911 call with her cell phone and she's describing how hot it is. I'm dying the heat It's it's getting help me help me help me And and these are her last words and a request is made for that tape where she says who she is She describes in extraordinary Um emotion the pain she's in her fear and you almost can hear her die on the phone Is that a tape Should be disclosed in response to a freedom of information a foil I think that um after the event Histories ought to be made public People know that those events are going to be made public Because it's the oral history And it will prevent Hopefully similar things happening in the past Now in 1948 I'm 77 years of age now But in 1948 I was living in washington dc And I went down to see Harry as truman Uh get inaugurated And there he was in an open automobile Waving to the crowd His world war two buddies were all there Waving to the crowd and everybody was cheering him on That could not happen today I believe that things have changed so much That even amid Romney And and I am a um A uh democrat have been all my life Although my mother was a republican I think even amid Romney or the vice president for um The uh second george bush Order have protection They ought to be protected And if they want to use their own money That's fine. They can use their own money Now the specific question This uh woman Is dying her last words If the family says We want that to protect it I'm going to listen to the family If there are similar stories And they say We want it out Then I think they ought to come out So that uh That's that's my simple answer to the question My answer would be you disclose the tape And at a minimum you redact the woman's name And the personal information To some great extent we don't need to know Who the person was who was making that statement But we need to know that they were making the statement Because we then can also Take that statement perhaps And we have the statement where someone says Stay in your place But then it makes sense Why were people saying stay in your place? wasn't there Some kind of script prepared For this kind of tragedy and if not Was it negligence on the part of the juliani administration? And is there a script now if god forbid something happened? What about the people who were the 911 operators? Were they told that morning what they should be saying? We know that there are people saying go to the roof Even though you couldn't get to the roof We know that most of the people said stay in place Only few people told them the right thing get the hell out As quickly as you can So just getting one part of the conversation Doesn't really add to it And and I understand What the judge is saying But at the same token the law on the foil talks about the right of privacy to the subject party Now the majority disagreed with us on that point Where we argued that the privacy right Only Belong to the person Not to the family members Once you open up that door legally That it's not just Me But my mother my father my wife my sister my brother. Oh god They'll do things totally contrary to what I want to do And so That's a legal issue as well But the bottom line stuff like that and almost everything I think it should be disclosed and finally and the the dissent made a good point And and they did it remember when Nasser sent up One of those Satellites and it blew up In that case The court in dc said we're not gonna Disclose the tapes themselves But we'll give the transcript Of what people were saying in those last moments Because that minimizes The the pain the hurt And we could have done that here as well in my opinion But we did not No, don't go ahead Raises an interesting point about the role of technology Yeah, that's correct role technology And I think one of the reasons we are so Sensitized to these privacy issues in the 21st century is because The internet and social media makes it possible to take something Like the conversation we were just describing or a picture And put it out there permanently on the worldwide web for eternity for everybody in the world to see and I think the reaction people have to a transcript Or to going into a room and listening to something one on one is very different from the reaction Do they have to the idea that this tape of a very sensitive Conversation is going to be on the web. So I I'm with Norman and one of the things I liked about the dissent in this decision was an an effort to find a way to Provide for disclosure For all the reasons disclosure is valuable yet Minimize the the opportunity for The entire world seeing something on the internet in its most raw emotional way Let me correct One thing that's in the bulletin. I left Chad born in park At the end of 2011 And I now Practice on my own. I have a very limited practice I like to do pro bono work for those who have been wrongly convicted I taught New York criminal procedure For over 30 years at Fordham's law school And the last few years I taught constitutional law Covering not only new york the new york constitution But constitutions across the country In the new york state constitution Bill of rights is the first part of the constitution And it has three different provisions referring to freedom of the press Speaking what you want to do But it also says In effect, there are limits to that freedom And people can be sued And punished either by fine or imprisonment or both if they abuse that privilege so um I Think it's very good To um Have these things made public But I certainly would redact them and if a person The person's family said nothing doing I would uh I would adhere to that And to follow up on the jubs off about pro bono When we were in the fight with the city on the issue of the human remains and wanting to Get the city to They had the list of everybody but we had the names but we didn't have the addresses And we proposed initially That we would send the information out Or they could send it out and their return Envelopes would come back and then we realized well then we would know the addresses of all the people So we proposed that an independent person Would be the person who would receive all this information someone who could be trusted And the one judge who came forward and said I'll do that for you was george bundy smith and the So he's not just talking to talk. He walks it as well. So Thank you again your honor But not being perfect, right? One of the things that I hear in this conversation I think it's important to keep in mind is the question of who should be the editor Or the ultimate gatekeeper In uh in a freedom of information context the first possible gatekeeper is the government, right? Then if you bring a a foyer action in court, there's a possibility of a court No judge or judges panel being the editor And another alternative which I often see in the classic first amendment context is that you let the press You know you defer to the editorial judgment of the press So, uh, none of these editors are perfect I only have this to say the last person that I want making editorial decisions about what should be public or not public is the government With the exception of obviously national security where you have to do it as a general principle I think having the government decide What the public should know or shouldn't know Is a bad idea. I think judges in an independent Judiciary as norman said are better suited But even there I'm uncomfortable So I come back to this notion that if I can't have a perfect system Which way i'm gonna am I going to air i'm gonna air inside of in favor of more disclosure and that means Generally deferring if somebody wants the document they ought to have it generally part of the problem with the Freedom of information law is new york freedom of information act foyer is the federal And my experience like the new york city police department They're notorious you send in a freedom of information request You don't even get a response They just ignore the law Isn't that ironic the people who are employed to uphold the law ignore the law in this area There are other agencies fire department doesn't have a wonderful record either You can send stuff to them and even though they're supposed to respond in five days under the law Never happens So it's frustrating in the sense that when you read the new york freedom of information law I think it's a beautiful document Because it really sets forth the principles and values of an open democracy and that we the people Have the right to have this information And it makes the government employees what they really are employees for us By us and for us But the application of the freedom of information law is also very very difficult And very often when people call many lawyers say, uh, it's just a waste of time. It's costly We're not going to be able to get it. So the reality of what the law was supposed to be Is not really where it is at this point And, uh, they've made some amendments to try to strengthen it But the reality is My experience Most people especially government people especially the elected officials They don't want anyone Knowing what they actually are doing Because they do know that if we know everything that they're doing they ain't going to come out looking so good That's what it's all about folks Let let me just uh add to what I have said I represent a woman Who uh has been convicted Spent 10 years in prison For a crime she did not commit Uh when I was at chat one in park I gave the 27 volumes uh to Summer interns They all came back and said this woman is innocent I read the 27 volumes And I am convinced she's innocent. Why do I say that? Well for one The original death certificate said this guy Died by natural causes Court order they exhumed his body And uh the person who performed the autopsy said This guy died of natural causes He was obese He was a smoker. He had carcinoma of the liver He went in for a hard operation and he did not come out alive Jewry never heard any of that Never heard any of that Even though there's an obligation on the part of The prosecution to give that information to the defense That's one case Second case comes out of north carolina A person was convicted And sentenced to two life terms plus 30 years for crack cocaine as opposed to powdered cocaine The uh congress of the united states The supreme court of the united states Have all said Penalties for these two have to be substantially equal By my calculation The guy should have gotten less than five years in prison He's been in prison since 1994 or 1995 and i'm still trying to get him out I'll get him out eventually But i shouldn't have to Go through all of this to get him out I would like all of the judges and their staffs sitting in past or the legislators and their staffs sitting in Past all the governors and executives and their staffs sitting in prison To indicate whether or not they ever Had used cocaine Or used marijuana I say that and i'm a person who never even smoked a marijuana cigarette And the first time i saw cocaine i was a judge in the court courtroom But these two cases Are just the tip of the iceberg There are a lot of people sitting in prisons of course the united states Who should not be there? Okay, let me ask one question and then we'll throw it open because we're getting short on time From a freedom of information perspective, uh, i'm i'm thinking of the national transportation safety board And i routinely you know in the aviation environment, but also in other modes of transportation They interview Personnel and in aviation. There's live recordings of audio and in aircraft and following an event That's just released as a matter of of course Is there something similar? Could you extrapolate that to the role of public safety? You know are this is a police officer or a firefighter like an airline pilot and maybe there should just be this expectation drawn around just a You know it's just a standard the thing that those those kinds of records would be have to be released following some kind of an event And i guess the follow-up of that would just be is there Is there a legislative or a foil or a FOIA reform agenda somewhere out there? Or is it that the laws are good that are on the books? They're just not followed Those records ought to be released no question about it. They ought to be released automatically I think the reason that sometimes they aren't released is because the employees Are afraid that if they say something they're going to be fired and they should not be Afraid they should be protected now a couple years ago 2010 I bought my last automobile Ford Taurus beautiful car ahead it made But i'm so angry That if and when I get the money I'm going to buy a lincoln because I think a lincoln may be safer and well That's that's that's my answer Well currently the foil and FOIA laws generally speaking Uh that information Should be made public There are 10 exceptions in the new york law and we talked about some of them here the privacy exception We've talked about great extent. There's uh an exception for what's called intra agency material And the premise there is is that if employees are writing memos and they're not in final form That shouldn't be released because otherwise People won't Give creative ideas that the boss rejects Because they're afraid that it could affect their future But if it's a final document that's supposed to be released too There's law enforcement exceptions. There's lots of different exceptions, but the The premise I think they ended it right. It's a rebuttable presumption That the presumption is unless it's rebutted by one of these exceptions Is that the information should be made public and the transportation safety Is no exception To the law the problem charles hit it on its head Is that the application enforcement of the law in my opinion is not as vigorous as it should be And I think again it goes back to the point that the people in positions of power Don't necessarily want you to know take a look at the whole issue of cigarettes And the terrible Medical consequences for all those years we've discovered people knew But they didn't want it to be disclosed because it would affect the economics of the issue I'm sure there are lots of other areas today That are similar where people who are making profit or people in power Don't want the information to be disclosed because if it's disclosed Then there will be problem the the mayors in new york we had it with juliani and bloomberg will have it with everyone As soon as they leave they don't want the information to go to the archives There's now even with the cell phones people in government including officials in our state Where they will use their private cell phone rather than the government phones to have these kinds of political Conversations foil says there's no exception if you're on your private phone and you're doing government business That should be made public And so we have to fight this all the time and again Why are they doing that? Well they go on their cell phone because they don't want it to be on the public phone Because if it's on the public phone, they might have to disclose it Well, we have to hold them accountable Well, I'd like to give us your name your social security number What's your number I'd like to touch on something that norman, uh said You talk about a script and You got to go way back to understand what the city did and individuals pushing their own agenda as you know I don't know how many people in the world know But the city of new york did with the communication system That's been in the papers again in the last few weeks because the fire department is now making changes after Hope are about the ambulances getting there very slowly and so on New york city had five Barrow offices dispatch offices one in each borough They were all closed and they were all put all the Dispatches were put in one location in brooklyn centralized system sounds good And then the city and the fire department punt First tens of thousands of dollars into a system A star's star real system if you want to call it that was going to solve all the problems of dispatching And it went on and on and on I can I can name about four people I know that worked on it for five to ten years We're all retired and they never got one anywhere still sitting The dispatchers that are there have scripts They are civilians. They have absolutely no knowledge of the police or fire what they do or EMS They may be someone who have been cross trained, but by and large they're just civilians When they finally decide what issue it is they will then turn it over to the police or the fire dispatch person But it is not the same as when we had the old system where you had essentially buffs fire buffs or do Where the companies were knew where the buildings are knew everything They could tell you more about the fire department than the chief of department could tell you And they were the ones who were dispatching and you didn't have these glitches or there were several minutes to weigh and so on and so forth And these systems kept getting pushed to get a better system, which hasn't worked And we talked about earlier before you got here about them being in the windows building Which they still are And yes, they've been trained and they've been updated the fire department was updated their system somewhat But it's still not the same If you're talking to a dispatcher who knows the situation whether it be police fire EMS, whatever the case may be These are the things that the city keeps pushing aside Blueberry continued to pump money into this system And as you know, it went from one company to another there everybody pointed fingers at However, it was that they had the the initial installation of the system that didn't work They were going to upgrade all money in and on and on and on it goes So here we are still stuck with the same system We haven't improved on it Maybe the scripts are better today, but remember defending place Which Can speak to in volumes That's the Way that we fight flies in high-rise buildings. I myself trained most of the Fire Safety Directors for 22 years. I was an adjunct professor at MLU training the fire safety directors What did the fire safety directors do in the south tower and you know that for a fact That when the people started to evacuate They were told to go back Because it was the other building that was here And some of them said no i'm leaving and they got out others went back and they perished when the second tower fell Or when the south tower fell, which was the first tower to fall But they were doing their job. That's what we're telling them. That's what I trained people to do Tell them to go two floors below the fire floor and they're safe And that was the dispatchers doing Stay where you are somebody will get to you. Of course, that's what they were told But they had no clue as to what was going on You and I as I said earlier watching you on tv you probably saw more than the dispatchers do so Yes, there was scripts that probably been updated How far they were going? I don't know. I hope that we never have to find out But I think that we need to keep pushing for this information to come out so that we can prevent Anything like this in the future not only here in New York City, but anywhere in the country Thank you I actually have a just a statement and then a question I want to go back to what daniel said the hypothesis about that You know a phone call of the woman, you know saying that she's feel she's going to die and so on and so forth Almost that exact type of phone call with the woman Speaking to a 9 11, you know dispatcher and saying that, you know, I'm going to burn I'm going to die and and the dispatcher saying no, no, no, don't say that, you know It's so emotional 13 years later, but you know that phone call The federal government picked three of the most compelling phone calls Both sides of it to use in the massouli trial To prove the government's case and I know that because I attended the massouli trial And I was as close to massouli as I am to you Except there was this massive New York City detective that was assigned to sit right next to me on the end Okay, and that was all you know Because I guess they thought I was going to uh, you know speak out maybe golf or do more So anyway So it it's troubling to me. I don't know the details of it. Did the government say to the family of this this? Uh young lady, you know, we we need this we're going to use it Did they ask them if the family said no, I don't want you to because I have a right of privacy What would have happened there? So I'm very troubled as a 9 11 family member that the government can decide You know to do what they want to do they can say no No, there's a right of privacy And and we can't have the the information because we think it's going to help the rest of society But they can take those Uh those conversations and use it in the trial. I'm not against that. Okay but But it really uh hit home to me when you gave that Now the second thing that I want to question say ask a question is um You know today we had a lot of you know kudos to our most honored guests the judge and I know that norman seagull has a tremendous amount of deep personal respect Uh for you and I'm very grateful that you did agree To uh be the recipient of this survey regarding the human remains of course the city of new york squashed it And the 9 11 museum squashed it But I would like to ask you a question, you know with all due respect in a most respectful way I just wanted to ask you What was the reason that you really voted? You know against You know what our group wanted as far as full disclosure of the 9 11 um calls and uh transcripts voted against um Given the real reason is I state my reasons. I don't hide behind anything I think there are times when privacy Uh trump's disclosure And that was one of the times the tapes could have been revealed as in this uh trial I think they should have been revealed That was a good reason and probably one of the main reasons why he was convicted And others can still be convicted, but uh if you have Some reason for privacy That personal message I'm going to Die. I love you This is the last thing I can Say to you Person once that kept private. I think that's that's private Just got one quick question then Steve goerlich asked early could just spend a couple minutes about newtown And talk about that because we really didn't talk about it much today. I will point out by the way flight 93 that Recording was never made public by the way. So um, so even though the ntsb got it. It never went public. So shanksville Right, uh, sure. No, so let me tell you anybody asked for So you were asking about the newtown experience. So let me just disclose up front I am legal counsel pro bono legal counsel to governor malloy's sandy hook advisory commission This is a civilian commission set up after the tragedy Much as one was set up after the virginia tech massacre much as one was set up after the columbine tragedy And it's staffed by experts in mental health school security And law enforcement and i'm just an advisor. I'm not on the commission But by virtue of that position i've followed the situation closely. So what happened in sandy hook is And this shows you how passions are are ignited so quickly within several hours Of the of the public dissemination of the shooting the ap Did something which newspapers routinely do there was nothing unusual about its request It made a request for the 911 calls And that infuriated The families in sandy hook For understandable reasons It infuriated people who were close to the families And it led to a long legal battle over the disclosure of the 911 calls and The state's attorney Who handled this case? Argued for various reasons that they shouldn't be disclosed When the matter finally got to court the judge And this is a word you do not hear too often from a judge in a written opinion Called the state's attorney's arguments Borderline frivolous. That's a very serious thing for a judge to say not only to an attorney, but to a state's attorney The arguments were so weak that they were they were virtually frivolous And the 911 tapes were released and we heard the gentleman from wavc. I think talk about them I particularly Closely connected with the media in Connecticut and I know that many of folks struggle With the decision to publish them not to publish them. Should we put them on our website? Should we redact them and there are a range of decisions some people put them up entirely others put up redacted parts But the world did not come to an end and here's the interesting thing The argument that had been made for the many months this issue was being litigated Was that the reason the 911 tapes should not be released Is because you're probably going to hear A telephone call by a teacher Who was trapped in a room as adam lanza came by and you were going to hear words like he's coming He's coming. Oh my god. He's shooting. He's killing and then All right, that was the fear that you would hear real-time Live emotional reports of somebody as he or she was about to be shot and perhaps killed by adam lanza turns out None of the calls had anything Like that Not like that what they revealed was the the hero heroism of a custodian who helped Guide the police and first responders and tell them where adam appeared to be and where in the building He was and the heroism of teachers who were guarding their students Is it possible There are 911 calls not in in the newtown case where you hear dying words of somebody and and that's terrible But the 911 calls ultimately were released But not without a very very big fight as I said by the state's attorney and also in a legislative effort The the families Were again ignited by a false rumor started on fox news that michael more the filmmaker left, you know, liberal left-wing filmmaker was going to make a foyer request for the Homicide photographs, you know the crime scene photographs of the children at sandy hood that was not true at all If you look at what he said He did not say he was going to make a request But it led to this frenzy and the the families and their supporters came to the legislature and said we want you to immediately amend The connecticut freedom of information act to bar the disclosure of crime scene photographs To bar the disclosure of 911 calls and then the state's attorney Not the particular one I was talking about before but the office in general jumped on the bandwagon There were a lot of things that they for years wanted to keep from the public And they joined in with this legislative frenzy and they were successful So at the end of 2013 a bunch of exemptions were added to the foyer And then finally the media and the open government folks that that i'm affiliated with Started pushing back and over the course of a year There was a tremendous dialog in connecticut very much like the one we're having today About the pros and the cons and what are the values of having this information? What are the costs of having this information and a compromise was struck not an ideal one 911 calls are back to being disclosed Homicide photographs can't of minor victims cannot be disclosed Some other information that was that was exempt is not exempt anymore That's the way it struck out the lesson that I've learned from this that I'd like to impart to everybody Is that it is almost impossible to make good public policy In the immediate wake of a tragedy like sandy hook or a tragedy like 9 11 There needs to be some distance And I wish that our elected representatives Would get this message and not Have the knee jerk reaction which is completely understandable from a human perspective What I saw happened in connecticut makes absolute Sense you can understand why people were trying to protect the families from further trauma But you don't want to make public policy In that environment what you do need is the information to come out so that when when the emotions reside a Calm down a bit when there's a little bit more perspective You have the information you have clear thinking and then you can make decisions As time goes on and my experience on at least 9 11 through this battle I'm more and more convinced that those tapes Need to be released Because when they're not released The problem and the systemic problem bringing about those tragedies Continue you know to the people In connecticut at that situation people need to go in and explain That unless that information gets out The gun laws are continued to be as bad as they are in america And people who should not have guns are going to have guns and this stuff will be repeated again and again And we've seen that's exactly what's happened So Perhaps the shock and the language that the courts use about pain and embarrassment Maybe that needs to be out there For us to change the systemic problems Because otherwise it happens again again on the 9 11 stuff again as I was thinking last night in preparation for here The government without any evidence Took the position that except for the eight families two of which are here today the centaurs and the reagan harts Without any evidence they took the position that these other families Did not want this information to be released There's no evidence of that no one ever polled them No one ever asked them and in the current fight With the centaurs and reagan harts and other people They've actually gone on record and said if the government asked The families what they wanted to do with the human remains If a majority of the family said keep it 70 feet below They would abide by that And yet that still never happened So, you know the idea when the tragedy occurs and you're saying give it some time I'm on now of the other position. I want to go in immediately And talk to people about look we can't bring back your loved one But what mainly we can do now Is we can take this horrible situation and presented to the american public With the aim of Trying to make sure that we ameliorate these kinds of tragedies or possibly even eliminate them And without the american support because what happens is it's fickle Even 9-11 is horrific as it was People move on The families live with it for the rest of their lives And yet we didn't make the reforms that were needed We can spin it in some ways, but the reality is It could happen again and In sandy hook we didn't make the reforms It is happening again. Maybe not on that magnitude But I pick up the paper. We hear about it every other week Someone who shouldn't have a gun Especially if they have mental health problems. How do they get guns? Why isn't there screening? Why isn't someone doing it because they want to make money off this stuff? We have to start putting human life More important than economic greed We in the exigencies of time we must move on and you know the things that it's going to hurt me more than it's going to hurt you I've got to end this panel And get us to the point where we can have our summary remarks and then leaves a few minutes because we do have to be out of the room At four which is 20 minutes from now. We could always have a sit-in. But I want to thank Well, that's true. We don't we're only going to be put out. I guess if they put us out Norbert, but We need a couple of lawyers to defend us though So I just want to thank this panel and I adhere to the college Of criminal justice, you know the though Really, I think it speaks to your your passion your expertise to make this discussion of law so salient and So relevant to us and I think it's you know, it's really to talk about the constitution And to see these issues. I think it's it's it's it's very inspiring. So I want to thank you for that We're going to go straight to uh, steve gorlick who's who basically is going to give basically a summary of a fast summary But it'll be good knowing steve and then we will revert to questions and then the panelists I think we can probably just stay where we are and we can just pass the mic around to talk I promise to be Am I on yes, I promise to be very quick, but um, I actually do have some I think some quick themes that did come up today that I wanted to make sure that that we sort of Leave with The first thing though, I wanted to say is something that I've never been able to say before To family members of victims I've been I was in spain. I speaking to the surviving family members of the atotra bombing I was in norway working with the family members of the toya massacre on atoya island And I've been to so many conferences where these issues are discussed I want you to know that I was thinking I have never been to a meeting Where these issues were ever discussed in a sort of impersonal In an impersonal way Every conference I've ever been to when there's no members of family present Has always been handled the people scholars working in this area with never in vain Always with an awareness Of the young people and not so young people who were lost that day It's always on the minds of people and like I say when people are not It's not when people are not present There's such a Scholars can be critical, but there's such a reverence and care about what we know Is behind why we do what we do And I just thought back to meetings everywhere where it never gets into the social science of thinking of ag people Is like numbers or aggregates. It's just it's always this way. I've never never been to a meeting that was other Just a couple themes first of all again, it's clear that we heard a lot about the supposed tension between trauma and truth And I think that this was an excellent day to sort of Sort of dismantle the idea that there is some Clear choice that has to be made between either revealing truth or traumatizing people I think today really revealed just how complicated it is Uh, and and I think while we often most of us came out on the side of more truth and more information Um, I think that from the first panel to the last No one was unaware that those have to be balanced with very real Traumatic concerns about things that are released that might be traumatic to individuals Um Daniel claus talking about airing in one direction is really the best we can do But the idea that you got that that governments often propose that you have to choose between trauma Because we want to protect the families And truth it's just if that's not the dichotomy that has to be made In fact, it's a much more complex thing that where where where equities can be balanced Um Just very quickly I was a scholar in residence for a year at the united states holocaust memorial museum And um, I was interviewing a holocaust survivor And it's a very it's touchy And um the person I had a very good relationship with Told me something that they experienced which could not have happened to them In other words, I knew that their memory Was reporting to me something that they were in a certain place where they couldn't have been That was a real a moment for me because I realized just all of this moment the whole this whole speech went through my head This person has developed a narrative to live for the rest of their life That narrative included putting them in a certain place at a certain time Was I there to do a oral history that had some scholarly purpose? Yes Did I say something to them? No Uh I have no problem airing on the side of trauma against full Open disclosure and truth sometimes It's just no problem doing that But it's neither is it something that that as governments would claim we have to sort of protect protect protect people from Um, I have to say the next theme I wanted to call people's attention to is today more than ever Is this continuing theme that comes up in a lot of the conferences here at john j The notion of what it means to be a first responder is changing by the minute In fact, the term is almost the term is almost obsolete When when al Santora talked about people on tv having a better view Of things um And the press panel talked about That you know, we're often first responders, too um First responders rarely now arrive at the scene of any sort of a major high-profile incident Without people hundreds of people with cameras Already being there And remember these smartphones we have for those of you who are old like me You're we're holding in our hands the equivalent of an entire 1960 television station The whole station And it's just it's it's a new world and The idea of who is a first responder and what it means to be a first responder And how first responders have to learn to adapt to live in a world Where they will arrive on the scene with the film of the incident already being broadcast Which i've discovered in my study. I'm doing a lot of work in the how twitter Broadcast the nature of events. It's just a new world. Um, I remember I think al said something about That there was some Confusion about whether the building was tilting or not and whether the people inside found out about this whole issue Just yesterday. I was telling I have a graduate class at hunter college called Disaster in media and culture and I was showing The students live news coverage from about 8 45 to 9 30 And uh, I found it interesting that you mentioned this issue of the building tilting because just yesterday I noticed for the first time because I sort of thrown out a little bit because I was Closer than I wished to the events Matt Lauer at about 9 20 Says wait a minute The building's tilting and that's not then that's not the Um, that's not the the lens from the long distance lens I see that you know So it is a world in which a lot of times now the press it may not be the physical first responder But they're certainly uh, often the the first the first to see The next quick point is and this is really galling because I go back a long ways with glenn about this Is how hard it is to change policies and protocols the longer that time passes I just want to make the point is I have always thought that this is a special problem for fire and building cones Um Glenn Corbett once we were talking about this and he says You know steve getting the public interested in fire codes and building codes Is like getting them interested in paint drying I never forgot that you said that um And we live in a society that's sort of a social problems marketplace where every issue fights for its place in the sun um And I just have to say that the issue of fires And explosions as causes of death from what I know about how the public does or does not get interested in fire regulations And from what I think I know about how public opinion loses interest quickly in those things I think we're about that we're starting a period where we can expect a cyclical the following cycle cycle There'll be a social club fire or a fire in a building that was inadequately It was not following of fire regulations or inadequately inspected or Whatever people will die The politicians will trip over each other to propose panels commissions and all sorts of laws Nothing will be done and then we'll wait and there'll be the next social club fire I And I'll move on but I'll tell you I have given that that's how I've opened that class every semester for almost 25 years now Uh One fire after another One mass casualty after event and this issue just never Seems to permeate the public consciousness to a point And it but it bothers me because my son's a us diplomat and I visit him in various countries He works at and you know when I land in the united states. I look at all the houses Maybe i'm the only guy who does this I look down at the ground and I say after being in other countries Thank god for building codes and fire codes Uh anyway One another quick point There's a real there is a success story in releasing tapes that I want that nobody mentioned today And it's worth a listen to And I know there was an effort to get there was a hard to get these tapes released Dean john farmer of the rutgers law school A published an article in the rutgers law review called f a a and norrad a new kind of war Dean farmers a relatively new dean at rutgers law school. He was on the 9 11 commission And what he published was a pardon Yes, um what he published was Uh a detailed annotation Including the the uh the tapes of every air traffic control Uh communication From the very beginning in the morning in boston For the next four or five hours Both sides of the conversation In which all sorts of just in quintessentially human mistakes are revealed Uh, they could not be more useful to people trying to understand how decision making takes place and how people work It couldn't be more useful And because I was pretty seriously ill about a month ago I was incapacitated and I listened to all the hours of it And I just I just would say that it's an example of what you learn When there's nothing taken out and I know the problems of taking things out What you learn is the exact moments when the when misperceptions and mistakes are passed along That that that were correct at one point and then with one little word they become switched to a mistake And and that's you learn incredibly important things about human Uh about uh about human decision making and so on Um One other quick point is if I can, um, I think that um Bureaucracies are always going to be self protective And they're always going to have guys like me 30 years ago Who was in the position of writing for an elected official various, you know Spin statements and cya statements. I didn't do it very long But even one of the journalists who was on the panel once Caught me and pointed it out in the paper. I'm glad he's not here anymore. Uh, I I've I've I've sought Forgiveness for those years But but what I was going to say is we really have to rethink With all the self-protectiveness the concept of error We really have to sort of rethink how we view the notion of error and we need a fundamental change Uh in our willingness to see error as an opportunity To learn I have to say something it's not only public officials that are self protective if I could It is often the public Is extraordinarily impatient with public officials And sometimes it's very hard for public officials to to To to to resist this kind of a pressure All I'm trying to say is that there's a great literature. There's a book called by Alina Tujan called better by mistake The benefit of being wrong of all the things you learned from from wrong things last Oh, the last thing is we learned a lot today about the public private distinction about the you know And I just want to just make an obvious point about what should be public and what should be private um Just how much 9 11 presented not only with these 9 11 tapes But in all sorts of other ways that day presented all sorts of privacy issues You might remember that there were all sorts of photos of trinkets that were published Of wallets of necklaces Uh without any thought to the fact that the people whose family members they were would almost certainly figure out who they were belong to That privacy issue came up the issue came up of of who is this man falling the famous falling man And and when newspapers that publishes and I think that came up the only point I want to make about this is that I think it's just important And I don't like to admit this because I grew up in the time when there still was a private realm I just want to make the point that's for good or bad an enormous amount of what we used to see as the private realm Is simply gone It's just it's just gone And it's gone because most of the stuff that we think Was private and is now was never private in the first place. It was de facto private because it was inaccessible You know what I mean and now with new technologies there's an enormous amount of stuff that's public, but it was never private You know as I tell my students all I hope is that the california state juvenile records Remain private I wasn't that bad, but just there's something there, you know Uh, so the point I'm trying to make is that the extent to which technology and this new world Has rendered a lot of notions of what is private really antiquated and I may miss them. You may miss them I may miss that we once had a president who could who was paralyzed But and we didn't know about it, but it's gone those years those days are gone So there's some things no matter what we want to do are always going to be Are always going to become Going to become public So thank you, this is my attempt to sum up some things And to be able to again to say to the families that I've never been to an academic meeting When this issue has been treated with anything other than reverence and concern And awareness that real lives were involved not just statistics I know it's the end of the day. So thank you for sticking around In the interest of reality what we're going to do is if you have questions you can uh seek out the Panelists one-on-one. Uh, we're going to mill around. Uh, you can get one last shot at the coffee and soda And uh, consider the day adjourned. It's been a remarkable day. I want to thank all of our panelists I want to thank the co-sponsoring organizations of the CUNY graduate school of journalism the academy for critical incident analysis the crime and justice and Whatever the hell else center and the center on terrorism And thank all of you most of all for coming and sticking with us. I forgot we're on tape and uh, so thank you everybody And it's been a great day and there will be proceedings from this event If you came in to sign up today make sure we have your email You can see someone in the back and then we'll notify you when they're when those proceedings are available. So seek out the uh, the speakers for your questions And and yeah, we'll eventually we'll have an edited Portions of this will be available as well. So thank you very much for coming