New York Times Co. v. Regenhard

Rosenblatt, J. (dissenting in part).

I disagree with the majority only with respect to the 911 calls. The Freedom of Information Law (FOIL) requires more disclosure. The public is well aware of the function of the 911 system and the sort of information it is designed to relay. Ordinarily, there is no reasonable expectation of privacy in a call to 911, and the full contents are generally subject to disclosure under FOIL. 1

Here, because of the unique nature of the attack, the Court *492 has ordered disclosure of words spoken by the operators, while deleting the words of the callers. There is, of course, a need to balance the competing public and private interests. On the side of full disclosure lies the public’s interest in a complete and coherent account of what happened on September 11, 2001. FOIL’S goal of making information public is inhibited when only half the conversation is divulged. The value of a response is compromised when the words that prompt the response are deleted. In some instances, the thrust of an incomplete communication can be inferred or constructed; in others it will be incoherent or even misleading.

The public interest supports disclosure broader than the Court has allowed. September 11th is a date burned in the minds of Americans, an event in which our security was profoundly violated. Precisely because of the importance of the September 11th attacks, Americans deserve to have as full an account of that event as can be responsibly furnished. Indisputably, the 911 tapes would shed light on the effectiveness of the City’s disaster response. In turn, the City (and other municipalities) may adopt response plans that take into account the lessons of September 11th. This will surely save lives in the event of future disasters or emergencies. Indeed, the public report of the National Commission on Terrorist Attacks Upon the United States found various inadequacies in the City’s 911 system and clearly found value in reviewing the 911 tapes (see 9/11 Commission Report, at 286-296, available on the Internet at chttp:// www.9-llcommission.gov>, cached at chttp://www.courts. state.ny.us/reporter/webdocs/fullreport.pdf>).

Balanced against disclosure is FOIL’S narrow exception for an “unwarranted invasion of personal privacy” (Public Officers Law § 87 [2] [b]; § 89 [2] [b]). I agree with the Court that those who suffered the loss of loved ones could be traumatized by the disclosure of tapes that identify victims and contain dramatic, highly personal utterances different from ordinary 911 calls. Not every call, however, falls into that category. But for their connection with September 11th, many of the calls in question *493 are ordinary 911 calls: people reporting factual information and seeking help. 2 Notably, the City has not provided any affidavits from survivors or victims’ family members suggesting that disclosure of 911 tapes, or any other material sought, would violate their privacy. The record contains only the opposite: affidavits from nine intervenors, family members who want full disclosure. Nevertheless, I do not challenge the majority’s assumption that full disclosure would cause considerable anguish to many victims’ families.

Even so, the goals of privacy and openness can both be met by additional, limited disclosure. I would expand the majority’s ruling and release a written transcript of the callers’ side of the 911 conversations. 3 The City could redact everything that would identify nonofficial callers in calls that have some unusually personal component, such as an expression of dying wishes to be relayed to family members, as opposed to the ordinary reporting of crime scene facts. With such calls, the City should, however, be allowed to withhold any utterance that would by name or other means identify the caller. The public interest would be served by meaningful disclosure, while the grieving families and friends of the callers would be spared the agony of having their personal lives and emotions thrust into the public realm.

My final thought relates to the performance of the firefighters, police officers and others who spearheaded the rescue efforts. It may well be that the 911 transcripts reveal imperfections or mistakes amid the chaos. This, however, is no reason to withhold the transcripts. On the contrary, they will give the public the clearest picture of how the first responders reacted, and that picture should be as comprehensive as possible. The revelation of any deficiencies on the part of the departments or their personnel is essential to improving and enhancing lifesaving procedures. Of course, no one can rightly expect perfection and exquisite orderliness in the face of an attack as horrific as this one. Exposing mistakes may prove discomforting, but this *494 will pale in the face of the unforgettable heroics that we will always associate with September 11th. For every person critical of an error or omission, ten thousand voices will rise up in praise of the firefighters, police officers and others who risked life and limb in the line of duty.

Judges G.B. Smith, Graffeo and Read concur with Judge R.S. Smith; Judge Rosenblatt dissents in part in a separate opinion in which Chief Judge Kaye and Judge Ciparick concur.

Order modified, without costs, by remitting to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

. Other courts considering the availability of 911 calls under FOIL have uniformly required their disclosure, and the majority appears to be in agreement in the ordinary case (see majority op at 484). In State ex rel. Cincin *492 nati Enquirer v Hamilton County (75 Ohio St 3d 374, 377-378, 662 NE2d 334, 337 [1996]), the Ohio Supreme Court held that there was no expectation of privacy in a 911 call and, accordingly, ordered the release of 911 tapes under that state’s version of FOIL. It further held that the tapes became public records at the moment they were made and that their content was irrelevant (see 75 Ohio St 3d at 378, 662 NE2d at 337 ). In accord are Meredith Corp. v City of Flint ( 256 Mich App 703, 708-709 , 671 NW2d 101, 104-105 [2003]), Asbury Park Press v Lakewood Twp. Police Dept. (354 NJ Super 146, 161, 804 A2d 1178, 1187 [Ocean County 2002]) and Brazas v Ramsey (291 111 App 3d 104, 106-107, 682 NE2d 476, 477-478 [2d Dist 1997], appeal denied 174 Ill 2d 555, 686 NE2d 1158 [1997]).

. The 9/11 Commission, for instance, cites the testimony of a person who called 911 from the 31st floor of the South Tower and complained that he had been put on hold multiple times before deciding on his own to flee the building (see 9/11 Commission Report, supra, at 295).

. See generally New York Times Co. v National Aeronautics & Space Admin., 920 F2d 1002 (DC Cir 1990) (where the majority remanded for a balancing test to determine whether a complete transcript or tapes must be disclosed under the federal Freedom of Information Act [ 5 USC § 552 ]).