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Newsday: Court to decide access to 9/11 tapes

Newsday | February 10 2005

ALBANY -- The state's highest court heard arguments Wednesday in a two-year struggle over access to a trove of city transcripts and tape recordings from Sept. 11, 2001.

At issue before the Court of Appeals is access to tapes of 911 calls, Fire Department dispatches and transcripts of interviews with hundreds of firefighters who responded on the day of the attack.

The New York Times filed the lawsuit after the city declined to release the items. The paper was later joined by relatives of civilians and firefighters who died at the World Trade Center.

In fighting the suit the city has cited privacy issues, concern over the emotions of the grieving and the ongoing terror prosecution of Zacarias Moussaoui in Virginia. In arguments yesterday before the seven-member panel, the case appeared to be destined to become a pivotal test of the effectiveness of the Freedom of Information Law.

Judge Albert Rosenblatt pressed the plaintiff to "give us an example of a privacy interest. Otherwise there is no standard."

"The burden of proof is on the city," Norman Siegel, a lawyer representing the families, said, adding that the city did not consult "a single family member" before refusing to release the items.

John Hogrogian, a lawyer for the city, did not deny that.

"I actually asked about that and the answer was it was apparent," Hogrogian said.

He suggested at one point that the request was "ghoulish."

About two dozen relatives of Sept. 11 victims journeyed to Albany to attend the hearing.

"If the city has someone who was against releasing the tapes we should have heard from them," said Russell Mercer, the stepfather of firefighter Scott Kopytko, 33, who died on Sept. 11.

When one judge asked what the Fire Department was most concerned about, Hogrogian said, "Opinions and recommendations addressed to Fire Department practices and things that did not work that day or were not implemented."

"How does criticism fit in?" Judge Victoria Graffeo asked.

"I believe that would have been an opinion," he said.

"That's a rather dangerous way to describe an opinion," Graffeo replied. There was no decision issued yesterday.

Toward the end of the hearing one judge indicated any ruling would likely be sent back to the lower court to be implemented

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