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8/14/2019 FOIA Appeal WTC 7 Solomon Brothers Building South Side Photos and Video on 911
1/23
Freedom of Information Act Appeal
APPEAL OF A DECISION BY THE FREEDOM OF INFORMATION
ACT OFFICER OF THE UNITED STATES DEPARTMENT OF
COMMERCE - NATIONAL INSTITUTE OF STANDARDS AND
TECHNOLOGY TO DENY PETITIONER A FEE WAIVER FOR
MATERIALS REQUESTED UNDER THE FREEDOM OF
INFORMATION ACT
5 U.S.C. 552
FOIA Log #07-76
September 10, 2007
As a matter of course, the Department of Justice
encourages agencies to provide a waiver of fees when both
requirements of the statutory standard are met, just as they
must deny a waiver of fees whenever one or both of those
requirements are not met. 1 The petitioners request for a
waiver of fees clearly meets both requirements of the
statutory standard.
Background
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The petitioner, upon suggestion by a New York Times
reporter, requested certain data from the National Institute
of Standards and Technology (hereinafter NIST). 2 A
representative of NIST promptly responded by suggesting that
such data should be requested under the Freedom of
Information Act. 3
On August 12, 2007, the petitioner sent a request for
information to NIST based on the template provided at their
website. 4 Petitioner requested a waiver of fees associated
with the search and duplication of the responsive documents.
A fee waiver is appropriate because disclosure of the
requested information to petitioner is in the public
interest because it is likely to contribute significantly
to public understanding of the operations or activities of
the government and is not primarily in [petitioners]
commercial interest. 5
Petitioner received a timely response from Freedom of
Information Act Officer (hereinafter FIAO), Catherine S.
Fletcher, dated August 15, 2007. 6 In the response, the FIAO
denied petitioners request for a fee waiver, and stated
that petitioner would be provided with an estimate of fees
for the search and duplication of the responsive documents. 7
Petitioner exercised his right to appeal in a timely
fashion in order that the Assistant General Counsel for
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Administration (Office) receives it within 30 calendar days
of the date of [the FIOAs] response letter. 8
Legal Standard
Upon a request for records, each agency shall make the
records promptly available to any person, provided that the
requester reasonably describes such records and [the
request] is made in accordance with published rules stating
the time, place, fees (if any), and procedures to be
followed. 9
In order to carry out the provisions of this section,
each agency shall promulgate regulations, pursuant to notice
and receipt of public comment, specifying the schedule of
fees applicable to the processing of requests under this
section and establishing procedures and guidelines for
determining when such fees should be waived or reduced. 10
Moreover, documents shall be furnished without any
charge or at a charge reduced below the fees established
under the statute if disclosure of the information is in the
public interest because it is likely to contribute
significantly to public understanding of the operations or
activities of the government and is not primarily in the
commercial interest of the requester. 11
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Analysis
A fee waiver is appropriate in petitioners case
because disclosure of the information is in the public
interest because it is likely to contribute significantly to
public understanding of the operations or activities of the
government and is not primarily in the commercial interest
of the petitioner. 12 The request reasonably describing the
records sought is as follows:
Photographs and applicable video (in jpeg, mpeg or another format) of the south side upper and lower lobby (inside and outside) of WTC Building 7 taken throughout the day on September 11,2001. These would be the photos and video takenin the immediate vicinity of the WTC Building 7 south side upper and lower entrances.
Photographs and applicable video of the WTC Division triage area, which was active at 9:30am on September 11, 2001.http://www.dps.state.vt.us/homeland/fdnylessonslearned9-11.pdf
Photographs of the upper and lower south sidelobby areas (interior and exterior) of Building
7 after the collapse of WTC 2, then after thecollapse of WTC 1. Note that NIST described thelobby area of WTC 7 after the collapse of WTC 1as having no heavy debris with a white dustcoating. http://wtc.nist.gov/pubs/June2004WTC7StructuralF ire&CollapseAnalysisPrint.pdf
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Note regarding responsiveness to this request:Photographs may be redacted as necessary and stillmay be responsive to my request. Note that
photographs alone may be responsive if video isnot also available, and video alone may beresponsive if still photos (redacted or not) arenot available.
In order to help to determine my status to assessfees, you should know that I am individual seeking information for personal use and not for acommercial use.
I request a waiver of all fees for this request.Disclosure of the requested information to me isin the public interest because it is likely tocontribute significantly to public understanding of the operations or activities of the governmentand is not primarily in my commercial interest. I asked a reporter from the New York Times for copies of the responsive photographs from theTimes archives if they were available. Thereporter stated that I should request the photosfrom NIST. The photographs hold very significanthistorical value.
Thank you for your consideration of thisrequest. 13
In order to qualify for a fee waiver under the statute,
a two-prong test has been considered in deciding whether an
agency should grant such a request. 14 The first prong
concerns the public interest. And the second prong
concerns the commercial interest. 15
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The public interest prong is further divided into four
distinct categories in order to properly analyze a specific
fee waiver request. So in order to examine whether
disclosure of the information is in the public interest
because it is likely to contribute significantly to public
understanding of government operations or activities 16 an
agency should examine these four factors:
(A) The subject of the request: whether the subject of
the requested records concerns the operations or
activities of the government. 17
Here the threshold test as to whether records
possessed by the agency directly concern government
operations or activities is most often met. 18 The
petitioner requests photographic and video data which
specifically concerns identifiable operations of the
federal government. 19 WTC Building 7 was the site of an
emergency triage center, where local government, the
federal government, and private entities worked together
in rescue efforts of a sort never before experienced.
They worked in conjunction and under great pressure and
likely saved many lives in the process. Additionally, 7
World Trade Center was occupied by several offices of the
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federal government, which were evacuated on September 11,
2001. Clearly, these factors meet the standard for the
threshold test . 20
(B)The informative value of the information disclosed:
whether the disclosure is likely to contribute to an
understanding of government operations or activities,
which are meaningfully informative. 21
The requested unreleased photographs and video data
have innate informative and meaningful qualities. 22
September 11, 2001 was the most tragic, yet significant
day of the 21 st century. September 11 was such a shocking
event that upon close appraisal 23 the unreleased
information has great potential to contribute to an
understanding by the general public, especially since it
is not presently in the public domain. 24 So disclosure
of the data will certainly add to the public record. 25
Furthermore, petitioner has stated in the endnotes
(incorporated in this document and by reference) that
there is scant publicly available photographs and video
pertaining to the south side upper and lower lobby
(interior and close exterior) areas of 7 World Trade
Center. Furthermore, the requested data is likely to
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contribute to an understanding of government operations
in and around the specific areas mentioned in
petitioners FOIA request. 26
The next consideration under the public policy prong
considers:
(C)The contribution to an understanding by the general
public of the subject likely to result from the
disclosure. 27
Here the petitioner must have the ability and
intention to disseminate this information to the
public. 28 The petitioner is an attorney and certainly
does have the requisite specialized knowledge to
extract, synthesize, and effectively convey the
information to the public. 29 Additionally, the petitioner
requested the information from NIST upon the suggestion
of a New York Times reporter, as the data was apparently
not available in the archives of the New York Times. 30
The final issue to consider under the public policy
prong of this analysis is:
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(D)The significance of the contribution to public
understanding: whether the disclosure is likely to
contribute significantly to public understanding of the
government operations or activities. 31
Upon objective evaluation by the agency,
petitioners requested information (even redacted
portions and portions released which are not subject to
an exception) will significantly enhance the general
publics understanding of the governments operations and
activities. 32 The publics knowledge and understanding of
federal emergency operations on the south side of WTC 7
(Solomon Brothers Building), evacuations of federal
employees from the south side exits and lobbies of WTC 7,
corroborative activities between local, state and federal
emergency personnel in the south side area and lobbies of
WTC 7, and other federal emergency management activities
on the south side are only a few of the very important
factors to consider upon release of the requested
information. 33 Moreover, the general publics level of
understanding will be greatly enhanced compared to the
knowledge derived from presently available photographic
and video evidence. 34
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Also, it is important to note that agencies are not to
make subjective judgments regarding the newsworthiness of
any requested information for which a fee waiver is
requested under this standard. 35
Now we will briefly consider the commercial interest
prong of the statute. 36 Petitioner stated in his letter to
NIST that the request for information was not primarily
in requesters commercial interest. Petitioner will
freely disseminate the requested information, and has no
commercial interest in the requested information from
that tragic day. Petitioner cannot be clearer about this
fact. Petitioner seeks neither to further a commercial
trade nor to profit from the requested data. Therefore,
this second prong is met under the statute. 37
Conclusion
It is appropriate that petitioner be granted a fee
waiver for the requested information because it has been
shown that disclosure of the information is in the
public interest because it is likely to contribute
significantly to public understanding of the operations
or activities of the government and is not primarily in
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the commercial interest of the requester. Petitioner has
met the standards as set forth in 5 U.S.C. 552
(a)(4)(a)(iii) and 28 C.F.R. 16.11 (k) (1999) as
considered by the FIAO in a letter dated August 15, 2007.
By:
/s/
Robert Moore
September 10, 2007
1 See, Stephen J. Markman, Assistant Attorney General, Office of
Legal Policy, New Fee Waiver Policy Guidance FOIA Update Vol.
VIII, No. 1, 1987 (April 2, 1987) available at
(www.usdoj.gov/oip/foia_updates/Vol_VIII_1/viii1page2.htm). See
also, 5 U.S.C. 552, amended by Public Law No. 104-231, 110
Stat. 3048, Vol. XVII, No. 4 (1996), available at (http://www.usdoj.gov/04foia/) and
www.usdoj.gov/oip/foia_updates/Vol_XVII_4/page2.htm), and 28
C.F.R 16.11 (k) (1999), and C.F.R. Electronic Code of Federal
Regulations (e-CFR), Title 28: Judicial Administration PART 16
PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION Subpart A
Procedures for Disclosure of Records Under the Freedom of
Information Act 16.11 Fees (current as of August 24,
2007) available at ( http://ecfr.gpoaccess.gov/cgi/t/text/text-idx ).
2 Petitioner corresponded with a reporter from the New York
Times, who intimated that petitioner could ask NIST for certain
data.
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3 Petitioner contacted Michael E. Newman
([email protected].). The WTC Investigation Team
graciously provided the FOIA website information and providedsome written information in lieu of a formal request.
4 See attached Exhibit A for petitioners FOIA request. See also
NIST website for request template, available at
( http://www.nist.gov/admin/foia/foia.htm#request ).
5 5 U.S.C. 552, available at (http://www.usdoj.gov/04foia/).
See also, attached Exhibit B for the freedom of information
officers response to petitioners request.
6 See 5 U.S.C. 552 (a)(6)(A), available at
(http://www.usdoj.gov/04foia/).
7 5 U.S.C. 552 (a), supra note 5 generally. See also, 5 U.S.C.
552 (a)(6)(F), where it states that an agency shall make a
reasonable effort to estimate the volume of any requested
matter, which is denied, and provide an estimate to the
requester. See also, see 5 U.S.C. 552 (a)(6)(F)(b)(9), where it
states: Any reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of
the portions which are exempt under this subsection. The amount
of deletion should be indicated unless it would harm an
interest protected by an exemption in the subsection.
8 See 5 U.S.C. 552 (a).
9 See 5 U.S.C. 552 (a)(3)(A).
10 See 5 U.S.C. 552 (a)(4)(A)(i).
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11 See 5 U.S.C. 552 (a)(4)(a)(iii), available at
(http://www.usdoj.gov/04foia/).
12 See id .
13 See Exhibit A, supra note 4.
14 See Decision and Order of the Department of Energy , Case No.
VFA-0679, 28 DOE 80,1778 (July 19, 2001), where a two-prong
test is used to define the public interest. The Department of
Energy is a vast resource for matters concerning fee waiver
requests. See also, Ruth Towle Murphy, 27 DOE 80, 173 (1998).
15 See id . See also, Markman, supra note 1, and 5 U.S.C.
552(a); 28 C.F.R 16.11 (k) (1999) at note 1.
16 See Markman, supra note 1.
17 See id.
18 See id.
19 See id . See also, 5 U.S.C. 552(a); 28 C.F.R 16.11 (k)
(1999), supra note 1. See also, Richard J. Sheirer, Testimony of
the Former Commissioner of the New York City Office of Emergency
Management, Opening Remarks Before the National Commission On
Terrorist Attacks Upon the United States (May 18, 2004), where he
states: The OEM watch command, which was located in the offices
of 7 World Trade Center, acted as the eyes and ears of the city.
Twenty-four hours a day, seven days a week, it monitored all
emergency services frequencies, New York State and National alert
systems, weather systems and local, national and international
news Sheirer further stated that triage was moved from the
North Tower lobby into the lobby of 7 World Trade Center, and
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that representatives from SEMO and FEMA offered the full extent
of the agencys resources, available at (http://www.9-
11commission.gov/hearings/hearing11/sheirer_statement.pdf). See
also , National Commission on Terrorist Attacks Upon the United States , 9 HEROISM AND HORROR, 9.1 PREPAREDNESS AS OF SEPTEMBER
11, available at (http://www.9-
11commission.gov/report/911Report_Ch9.htm), (presently managed by
the National Archives and Records Administration) for additional
responses by the federal government from 7 World Trade Center.
In the National Commission on Terrorist Attacks report, it
states the following with regard to the Office of Emergency
Managements response and contact with federal personnel: OEM
Initial Response: By 8:48, officials in OEM headquarters on the
23rd floor of 7 WTC-just to the north of the North Tower began to
activate the Emergency Operations Center by calling such agencies
as the FDNY, NYPD, Department of Health, and the Greater Hospital
Association and instructing them to send their designated
representatives to the OEM. In addition, the Federal Emergency
Management Agency (FEMA) was called and asked to send at least
five federal Urban Search and Rescue Teams (such teams are
located throughout the United States). At approximately 8:50, a
senior representative from the OEM arrived in the lobby of the
North Tower and began to act as the OEM field responder to the
incident. He soon was joined by several other OEM officials,
including the OEM Director. Further references state: OEM
Response After the South Tower was hit--OEM senior leadership
decided to remain in its "bunker" and continue conducting
operations, even though all civilians had been evacuated from 7
WTC. At approximately 9:30, a senior OEM official ordered the
evacuation of the facility, after a Secret Service agent in 7 WTC
advised him that additional commercial planes were not accounted
for.
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20 See National Commission on Terrorist Attacks, supra note 19 .
See also, FEMA 403, Chapter 5, for a list of tenants that
occupied 7 World Trade Center. Tenants included offices for the
DOD (Department of Defense), CIA (Central Intelligence Agency),SEC (Securities and Exchange Commission), U.S. Secret Service,
and several other federal, local and private entities, available
at ( http://www.fema.gov/pdf/library/fema403_ch5.pdf ). See also,
Gary Cecchine, et al., Triage For Civil Support: Using Military
Medical Assets to Respond to Terrorist Attacks, National Defense
Research Institute and Rand Health , (Prepared for the Office of
the Secretary of Defense)(2004) available at
( http://www.rand.org/pubs/monographs/MG217/index.html ).
21 Department of Energy , Case No. VFA-0679, 28 DOE 80,1778,
supra note 14.
22 There are a very limited number of resources actually showing
the south side of WTC 7 throughout the day on September 11, 2001.
Moreover, no known interior lobby triage photos have been
released. The most widely available stills and video depict more
of a distant view of that particular structure. Since triage was
established in WTC 7, and the evacuation of federal employees
took place from that building, it is extremely important that the
general public gain an understanding of the government activities
in that vicinitya knowledge and understanding that will be
vastly enhanced by the release of the requested information. The
existing archives display scant minutes of video. For example:
See, Internet Archive , ABC Sept. 11, 2001 11:59 am - 12:41 pm (30
minute mark)(September 11, 2001) available at
( http://www.archive.org/details/abc200109111159-1241 . See also,
BBC Sept. 11, 2001 11:21 am - 12:02 pm (September 11, 2001) (22
minute mark) available at
( http://www.archive.org/details/bbc200109111121-1202 ), where
similar brief video clips show a man with a backpack running into
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the dust covered lower south lobby of World Trade Center Building
7. A cameraperson captured the man as he sprinted up a dormant
escalator to the upper lobby of WTC 7 and spoke to another man
waiting there.
23 See Markman, supra note 1. See generally, 911 Commission
Report (2004) available at ( http://www.9-
11commission.gov/report/911Report.pdf ), for a detailed
description of the events of that tragic day.
24 See Markman, supra note 1. See also, Blakley v. Department of
Justice , 549 F Supp. 1220, 1223 (D.D.C. 1982), affd mem., 720
F.2D 215 (D.C. Cir. 1983).
25See Markman, supra note 1. See also, Blakley supra note 24,
for reference to public domain.
26 See Exhibit A, supra note 4, and 5 U.S.C. 552 (a); 28 C.F.R
16.11 (k) (1999).
27 See Markman, supra note 1.
28 See id.
29 See Markman, supra note 1. Also, petitioner was editor-in-
chief of a law school publication, at RWU School of Law, known as
The Docket . The knowledge obtained as editor-in-chief and from
the subsequent practice of law is more than enough to satisfy the
specialized knowledge aspect of the statute. Note also, that
the ability to disseminate information to the general public is
not a difficult task at present. Of course, representatives of
the news media would readily be able to satisfy this aspect of
the statutory requirement according to the Accord FOIA Update ,
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Fall 1983, at 14. However, technology has changed dramatically
since 1983. Now millions of people worldwide can instantly access
data, which was initially disseminated to limited numbers of
individuals. See a supporting article from BBC News, YouTube hits100m videos per day Internet video site YouTube has said its
users are now watching more than 100 million videos per day.
(Monday, 17 July 2006) available at
( http://news.bbc.co.uk/2/hi/technology/5186618.stm ), which
stated: YouTube said that its videos account for 60% of all
videos watched online in the US. It has almost 20 million
visitors to the site each month, according to
Nielsen/NetRatings.
Although, the New York Times and other print media may be
considered more appropriate venues for the release of the
requested data (and in fact a New York Times reporter intimated
that I ask NIST for certain information), it is inevitable that
Internet news sources and sources such as YouTube will be used to
disseminate the data to millions of the general public in a
matter of hours and days. In fact, ABC News has direct links to
YouTube and often airs its contents. See the ABC News website for
links and stories about many YouTube broadcasts available at
( http://abcnews.go.com/search?searchtext=youtube&type =) and
generally at, http://abcnews.go.com . It is evident that the
standard of ability and intention to disseminate has changed
greatly since that standard was set forth in 10 CFR
1004.9(a)(8)(i)(C)(1997).
30See Petitioner supra note 2. See also, Cf. Glen Miller, 26 DOE
80,147 at 80, 649 (1996), where the contribution to the
general public likely to result from disclosure aspect of the
statute was satisfied, when a reporter from the New York Times
stated that the documents were newsworthy. The New York Times
reporter in the present case stated the following to petitioner
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in written correspondence: I don't have photographs of the
lobbyPerhaps NIST has pictures The New York Times reporter
further stated the following after an inquiry regarding criminal
conduct: You should ask NIST if what they're investigatinginvolves arson. Although, such correspondence and interest shown
by the reporter does not guarantee that New York Times editors
will find such data newsworthy, certainly such correspondence
with petitioner goes beyond a requester who intends merely to
disseminate information to the media as stated in Markman, supra
note 1. Here the petitioner has had direct contact with a member
of the print media, among others, in order to freely and
specifically disseminate the requested information for FOIA
statutory purposes.
31 See Markman, supra note 1.
32 See Sheirer, supra note 19, where he states that the
evacuation of 7 World Trade Center commenced at approximately
9:30, after a Secret Service agent in 7 WTC advised him [an OEM
official] that additional commercial planes were not accounted
for.
33 See, Glenn Asaeda, M.D., Yale Disaster Medicine Conference,
World Trade Center Attack September 12-13, 2005, for reference to
triage areas in and around ground zero on September 11, 2001
including a triage center at WTC 7, available at
( http://www.yalenewhavenhealth.org/emergency/2005CONGRESS/Day1Tra
ck3/Asaeda.pdf ). See also, Initial EMS Organization- Pre-
Collapse- 9:59 a.m., for reference to the WTC 7 Division triage
area, available at
(http://www.nyc.gov/html/fdny/pdf/mck_report/x14_ems_org_pre_coll
apse.pdf). See also, New York Times.com, Interview with EMS
Division Chief John Peruggia , where Peruggia explains the
conditions within the lobby of 7 World Trade Center and his
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experiences within that structure upon his arrival on September
11, 2001, and explains the emergency operations on the south side
of WTC 7 in detail, available at
(http://www.nytimes.com/packages/html/nyregion/20050812_WTC_GRAPHIC/Peruggia_John.txt). See also, Emergency Medical Service
Response on September 11 , which mentions that a triage center was
set up at WTC 7 at about 9:30 a.m., available at
( http://www.nyc.gov/html/fdny/pdf/mck_report/ems_response.pdf ).
34 See, Internet Archive, supra note 22, and see notes (regarding
the limited number of stills and videos presently available
depicting the upper and lower lobby areas of 7 World Trade Center
on September 11, 2001), supra note 22. See also, James M.
Williams, President of the Structural Engineers of Utah, SEAU
News , The Newsletter of the Structural Engineers of Utah, Volume
VI, Issue II (October 2001), where Williams stated that the FBI
actually made decisions as to which photographs would be
broadcast to the public. Specifically, Mr. Williams stated: As
of 21 days after the attack, the fires were still burning and
molten steel was still running. What concrete wasnt pulverized
into dust will continue to be removed for weeks to come. The
structural steel is being removed and shipped by barge to be
recycled.
All photographs shown on television, shot-on-site were pre-
approved by the FBI. We were shown photographs that were not
released for public view, available at
(http://www.seau.org/SEAUNews-2001-10.pdf.). Note that the issue
of obtaining photographs and video of alleged running molten
metal beneath ground zero is an issue for a separate FOIA
request, and is not the subject of the present request.
35See Memorandum of Timothy S. Elliot, Acting Associate
Solicitor-Division of General Law, Freedom of Information ActFee
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Waiver Guidance, where it states: The question of significance
is not an objective one. The legislative history and cases
interpreting the statute make clear that agencies are not to make
editorial judgments about the newsworthiness of requesteddocuments, available at (http://www.doi.gov/foia/feewaive.html).
See generally, U.S. Const. amend. I.
36See Markman, supra note 1 and 5 U.S.C. 552 (a); 28 C.F.R
16.11 (k) (1999), supra note 1.
37 See Markman, supra note 1, where the New Fee Waiver Policy Guidance states that: A commercial interest is one that
furthers a commercial trade or profit interest as those terms are
commonly understood. Petitioner has no such interest. See
generally, 5 U.S.C. 552 (a); 28 C.F.R 16.11 (k) (1999), supra
note 1.
Exhibit A
National Institute of Standards and TechnologyCatherine S. Fletcher, FOIA & Privacy Act Officer
100 Bureau Drive, STOP 1710Gaithersburg, MD 20899-1710
Re: Freedom of Information Act Request
Dear Ms. Catherine S. Fletcher:
This is a request under the Freedom of Information Act, 5 U.S.C. Sec. 552.
I request that a copy of the following documents be provided to me:
Photographs and applicable video (in jpeg, mpeg or another format) of the south side upper andlower lobby (inside and outside) of WTC Building 7 taken throughout the day on September 11,2001. These would be the photos and video taken in the immediate vicinity of the WTC Building 7south side upper and lower entrances.
Photographs and applicable video of the WTC Division triage area, which was active at 9:30 amon September 11, 2001. http://www.dps.state.vt.us/homeland/fdnylessonslearned9-11.pdf
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Photographs of the upper and lower south side lobby areas (interior and exterior) of Building 7 after the collapse of WTC 2, then after the collapse of WTC 1. Note that NIST described the lobby areaof WTC 7 after the collapse of WTC 1 as having no heavy debris with a white dust coating.http://wtc.nist.gov/pubs/June2004WTC7StructuralFire&CollapseAnalysisPrint.pdf
Note regarding responsiveness to this request: Photographs may be redacted as necessaryand still may be responsive to my request. Note that photographs alone may be responsive if videowas not also available, and video alone may be responsive if still photos (redacted or not) were notavailable.
In order to help to determine my status to assess fees, you should know that I am an individual seekinginformation for personal use and not for a commercial use.
I request a waiver of all fees for this request. Disclosure of the requested information to me is in the publicinterest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest. I asked a reporter from the New York Timesfor copies of the responsive photographs from the Times archives if they were available. The reporter statedthat I should request the photos from NIST. The photographs hold very significant historical value.
Thank you for your consideration of this request.
Sincerely,
/s/
Robert Moore
P.O. Box 16
Harmony, RI 02829
Exhibit B
(attached)
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