DM B5 New York City Fdr- 11-17-03 Memo Re NYC Document Production Status 133

8/14/2019 DM B5 New York City Fdr- 11-17-03 Memo Re NYC Document Production Status 133

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MEMORANDUM

November 17 , 2003From: Team 8To: Front OfficeRe: New York City Docum ent Production Status

As you are aware, the enabling statute of the Nation al Commission on Terrorist A ttacks upon theUnited States mandates "a full and complete accounting of the circumstances surrounding the attacks"on 9/11, including "the Un ited States' preparedness for, and imm ediate response to, the attacks." Thestatute further empowers the N ational Comm ission to avail itself of information from governmentsources at all levels, fede ral, state, and local, and authorizes the service of compulsory process (i.e.,subpoenas) in appropriate cases to compel the production of relevant information. Team 8 has beencharged with investigating the nation's immediate response to the 9/11 attacks at all levels ofgovernment, from the operations of the nation's air defense system to the ac tivities of emergencyresponders at the crash sites; the National Com mission has recently issued subpoenas to the Departmentof Defense and the Federal Aviation Administration in order to compel compliance with Team 8'sdocument requests to those en tities. The purpose of this memorandum is to detail the status of NewYork City's cooperation w ith Team 8's d ocu men t requests, spec ifically with respect to the PoliceDepartment ("NYPD"), the Fire Dep artment ("FDNY"), and the Office of Emergency Management("OEM").

I. Team 8's Docum ent RequestO n July 9, 2003, in order to assist it in reconstructing the immed iate response to the 9/11 attackson the ground in New York City, Team 8 forwarded a com prehensive d ocum ent request to theCorporation Counsel o f the City of New York. This request sought records/materials/docum ents in threebroad categories from various New York City agencies: (i) all materials related to standard operatingprocedures and systems in place on September 10, 2001; (ii) radio dispatch tapes/911 tapes/transcripts ofall communications/video tapes/unit location charts/other forms of raw data which pertained to whathappened on September 11; and (iii) all internal and external summaries/after action reports/ consultingreviews/critiques/evaluations, as well as all supporting and co ntributing materials, which wereconducted after September 11. O f particular importance to Team 8 were tapes or transcripts of 911 callsplaced the morning of 9/11 and at least 500 oral history interviews that were con ducted internally by theFDNY. Responsive do cum ents were due by the end of July.II. The City's ResponseIn response to the Commission's request, the City produced , on July 25 , 2003, all relevant NYPDstandard operating procedures; an "Unusual Occurrence Report" for the 1993 World Trade Centerbombing; a Citywide Security Assessment Plan from 1988; 8 radio com munic ation tapes for 9/11 from 8a.m. through noon ; 43 dispatch tapes for 9/11; and 45 video tapes taken at the W orld Trade C enter siteon 9/11 and in the following days, amon g other documen ts. This was follow ed, in subsequentproductions, by further videotapes (August 11), comm and logs for Manhattan South precinct and dataregarding line of duty injury reports at the Trade Center on 9/11 (November 7) , FDNY SOPs for high-

file://C:\Documents%20and%20Settings\dmarcus\Local%20Settings\Temporary%20Inter... 11/18/2003


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rise office buildings (August 11), FDNY post-1993 Mem oranda of Understanding with the PortAuthority and 2 inc ident summary reports regarding 9/11 (August 26), substantial materials related tothe Mc Kinsey R eport (consisting largely of data related to other urban fire departments and firstresponders to terrorism) (September 26), 6 OEM situation reports, from 9/18-9/20 (October 7), and (onOctober 15) Dep artment of Health Summaries of Disaster Response from 9/12-9/20.

This production, while not unresponsive, has omitted several categories of highly probativedocum ents. Am ong other omissions, the City has failed to produce the tapes and transcripts o f 911 callsfrom the m orning of 9/11, so-called "SPRINT" reports (contemporaneous logs of radio dispatches) thatwill assist greatly in deciphering the radio dispatch tapes, and at least 500 after-action interviewsconducted as "oral histories" by the FDNY. In refusing to turn over such material, the City hasconsistently cited privacy conc erns and pending litigation.

The Com mission has attempted to address these c oncerns in a variety of ways. In a letter datedAugust 26, 2003, Dan Marcus agreed, on behalf of the C omm ission, to safeguard the privacy interests ofindividuals identified in responsive documents, as well as legitimate confidentiality concerns of theCity. No twithsta nding these assurances, and despite numerous subsequent meetings and c onversationswith Corporation Counsel, the City has refused to turn over the 911 tapes and/or transcripts and the oralhistory interviews.III. Importanc e of the Withheld Doc umentsA. The 911 TapesThe 911 tapes provide the critical signposts of situational awareness in documenting theinteraction between the public and the City on September 11. They also illuminate how well or poorlyinformation was shared between different departments: one of the principal foci of Team 8'sinvestigation. The potential value of the 911 tapes and/or transcripts is illustrated by contrastingreference to the Port Authority, which has produced transcripts of their 911 tapes. We have learned fromthe Port Authority 911 transcripts that a Port Authority dispatch officer in Jersey City told 13 occupants

on the 64th floor of the Northern Tow er to stay put for the time being -13 minutes after a Port A uthorityPolice C aptain at the WTC ordered the entire c omplex to be evacuated. This lack of communication -which in this instance was a mater of life anddeath, as the thirteen occupants perished - could not havebeen proven in the absence of the 911 transcripts.B. The FDNY InterviewsIn its impact on both lives saved and lives lost, the FDNY was the most significant firstresponding agency on September 11. For this reason alone we believe transcripts o f 500 interviewswould be invaluable. We have learned from our work to date that the perform anc e of the FDN Y onSeptember 11 suffered from significant shortcomings in standard operating procedu res, technological

failures, and human error. W ritten transcripts of 500 firemen's experiences that day would be crucial inthemselves, but also would provide us excellent leads with respect to interview request and interviewsubject matters to be broached. Again, a contrasting example is instructive. The first responderinterviews from the Pentagon Historical Project, which the D epartment of Defense has (after asignificant delay) provided, have proven invaluable to Team 8 in piecing together the events of 9/11 atthe Pentagon and in assessing first responder performance. DoD raised similar initial privacy concerns,but was mollified by the assurance that New York City has found inadequate.IV . The Current Posture



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The City has not claimed (so far) that the Commission is not entitled to the 911 tapes and FDNYinterview transcripts; rather, the C ity, citing the pendency of its appeal o f an unfavorable ruling in a suitby the New York Tim es demanding the release of the tapes and interviews, has offered as a compromiseto make them available on December 31 or when the City loses its appeal, whichever is sooner. Thechoice of this date -just past the deadline when the victims' families must decide whether to opt in orou t of the compensation fund - strikes Team 8 as cynical. Furthermore, given the team's timeconstraints, Team 8 believes strongly that another mo nth and a half s delay would be unwarranted.Unlike most agencies of the federal governm ent, there is a risk w here New Y ork is concernedthat a subpoena may result in litigation. Team 8believes, however, that a subpoena could besuccessfully enforced as against the City, and that the Com mission wou ld be vind icating the pu blic trustplaced in it by seeking enforcement of a subpoena, if one is issued. There is a further risk that theissuance of a sub poena will erode whatever cooperation has existed, and require the issuance of furthersubpoenas for both docum ents and witnesses. Team 8 believes, however, that New York's "cooperativespirit" has been insufficient to date to justify forbe arance because of this concern.

Conclusion

On balance, Team 8 recommends strongly the issuance of a subpoena for, at a minimum, the 911tapes and the firefighter interview transcripts. (There areother responsive documents - the SPRINTreports, for instance - that could be included if they are not received by the issuance date. Ourunderstanding is, however, that we should be receiving them.) Consistent with the Com mission'sapproach w ith other agencies, Team 8 has tried to work cooperatively with the City; we have, forinstance, agreed to conduct 125 interview s join tly with NIST, to save the C ity the angst and expense ofconducting the interviews twice. New Y ork City's cooperation, by contrast, has been both dilatory andinconsistent, and their refusal to turn over the 911 tapes and FDNY interviews borders on disingenuous.For these reasons, Team 8 recommends the issuance of a subpoena to New Y ork City.
