MATTER OF THE NEW YORK TIMES CO. v. CITY OF NEW YORK FIRE DEPARTMENT , 4 N.Y.3d 477, 829 N.E.2d 266, 796 N.Y.S.2d 302
Four months after the attacks on the World Trade Center on September 11, 2001, a New York Times (Times) reporter, Jim Dwyer, requested a number of records and information from the New York City Fire Department. Among other things, Dwyer sought tapes and transcripts of emergency “911” calls made to the Fire Department on September 11. He also sought tapes and transcripts of “oral histories,” which were interviews of surviving firefighters conducted by the Fire Department after September 11th. The Fire Department denied the request.
The Times and Dwyer sued the Fire Department claiming that it violated the New York State Freedom of Information Law (FOIL). FOIL requires that state and municipal agencies make all records available for public inspection and copying. However, there are exceptions to disclosure and the Fire Department relied on the “privacy” exception in denying Dwyer’s request for the 911 records and the oral histories. The privacy exception permits agencies to “deny access to records or portions thereof that…if disclosed would constitute an unwarranted invasion of personal privacy….”
The New York State Court of Appeals upheld the Fire Department’s decision to withhold tapes and transcripts of the emergency 911 calls under the privacy exception unless the callers or their families agree to disclosure. The Court found, however, that the oral histories must be disclosed.
Applying the privacy exception of FOIL requires the Court to balance the privacy interests at stake against the public interest in disclosure.
The Privacy Interests
The Court recognized that survivors’ and surviving relatives’ privacy interests were “compelling.” Many of the 911 calls included expressions of terror, agony, and deep personal feelings as victims were confronted with the prospect of imminent death. The sensational nature of the calls would likely lead to over-playing, over-publishing, and exploitation by the media. Survivors or surviving relatives would likely be offended by the idea of such calls being repeatedly heard on or read in the news.
The Public Interest in Disclosure
Balanced against these privacy concerns was the public interest in knowing as much as possible about the events of September 11, 2001; more specifically, the public’s need to know just how well or poorly the emergency 911 system performed on that day. The Court considered the findings of the Federal 9/11 Commission, which concluded that there were significant flaws in the 911 system’s performance. The problems in the system could be better understood and addressed through public knowledge, discussion and debate.
The Court concluded that for those families not specifically agreeing to disclosure, the privacy interests outweighed the public interest in disclosure and therefore disclosure would constitute an “unwarranted invasion of personal privacy” within the FOIL exception.
With respect to the oral histories, the Court found that the privacy exception did not apply. The oral histories were taken by the Fire Department to make an historical record of the recollections of Fire Department personnel who were present at the World Trade Center site on September 11, 2001. The Court concluded that in this context the interviewees should have reasonably understood that their words would become part of a public record, disclosed to the public. The Court, however, added one qualification to its finding for disclosure: If a firefighter could show the he/she was led to believe that the interview was private and disclosure would cause serious pain or embarrassment to such firefighter, then a lower court may decide to delete that portion of the interview from disclosure.
Learning Activities
Terms to Know
· censorship
· disclosure
· Freedom of Information Law
Compare and Contrast
In New York Times Co. v. United States (The Pentagon Papers case)(91 S.Ct. 2140 (1971)), the United States government wanted to prevent the publication in The New York Times and Washington Post of portions of a classified study critical of the government’s actions in Viet Nam. The U.S. Supreme Court prohibited government censorship of this then-secret study finding that the First Amendment’s protection for freedom of the press almost always requires disclosure as follows:
“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. … The press was protected so that it could bare the secrets of government and inform the people.. ..Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. …”
Does the above quote apply to the 911 calls sought by the Times in the Matter of The New York Times v. The City of New York Fire Department? Why did the U.S. Supreme Court require the Pentagon Papers be disclosed but the New York Court of Appeals did not require all of the 911 calls to be disclosed?
Critical Thinking
Three of the Justices ruling in Matter of The New York Times believed that the privacy exception should not be applied to prevent the disclosure of 911 calls by callers (or their surviving family members) who do not specifically agree to disclosure. Instead, these Justices believed that permitting the calls to be disclosed with the deletion of the callers’ names and any other personally identifying information could protect their privacy. Do you agree?
Interesting Note…
You can find the oral histories released to the public as a result of this case at http://nytimes.com/sept11