In Response to Emergencies

Courts in Colorado, New York and Rhode Island have repeatedly held that emergency response tapes should be made public

From the Spring 2004 issue of The News Media & The Law, page 30.

By Liam Hurley

Tapes and transcripts from 911 emergency response personnel, as well as internal communication within police and fire departments, are essential tools in understanding how government agencies perform their duties.

In three tragedies where death and destruction was rampant — the Columbine High School shootings in Colorado, the Sept. 11, 2001, terrorist attacks, and the nightclub fire in West Warwick, R.I. — courts have repeatedly held that public access to information from disasters is important so people can know what happened, as well as how and why.

“Freedom of access by the press and public to government information preserves a free society,” the Supreme Court of New York ruled in granting The New York Times access to emergency response records nearly two years after the Sept. 11 attacks. “The press and public should be permitted to obtain as much nonexempt information as available in relation to one of the most poignant episodes of our lifetime.”

Analysis of emergency response records by news organizations and government watchdog groups, who obtained the information through various open records lawsuits, provide details of several missteps taken by government officials in West Warwick, New York City and Jefferson County, Colo. Some response units acted too carefully, some too quickly, some without proper communication or in confusion. Sometimes, it was all of the above.

Following the terrorist attacks of Sept.11, the Times sought recorded phone conversations between those trapped in the World Trade Center towers and emergency response units, as well as internal radio dispatches from the New York Port Authority and the New York Fire Department. Each department denied the newspaper’s requests.

The Fire Department claimed three exemptions under New York’s Freedom of Information Law — for law enforcement records, intra-agency information and personal privacy.

The Fire Department argued that it compiled the records — interagency communications and phone calls from the public — at the request of prosecutors in the Zacarias Moussaoui case. Releasing them to the public would endanger Moussaoui’s right to a fair trial, they said. Moussaoui, the alleged “20th hijacker,” was detained in August 2001 and charged with aiding the hijackers. He is currently being held on six counts of conspiring against the United States.

The Fire Department also invoked the intra-agency and personal privacy exemptions, claiming that personal records involving the opinions of firemen were exempt from the Freedom of Information Law.

The state Supreme Court ruled that “potential evidentiary material” in the Moussaoui case was “correctly denied” under the law enforcement exemption. It also ruled that some oral histories and personal phone calls retained on record by the Fire Department are “exceedingly personal in nature, describing the interviewees intimate emotions such as fear, concern for themselves and loved ones, and horror at what they saw and heard.” Disclosure, the court held, would be a “reasonable hardship for a person of ordinary sensibilities.”

However, all other records requested by the Times were released.

Acknowledging the tragic conditions under which emergency response personnel had to work that day, the newspaper later argued in another case that such times are when government transparency is most important. A high-profile event serves to boost public awareness of emergency response functions and areas in need of reform, the paper said.

“[T]he public needs to know more fully what happened that day, in particular how our public agencies responded and whether the safety features of the building worked,” the Times argued in a preliminary motion to Judge Sybil R. Moses of Superior Court in New Jersey, in a suit seeking records from the Port Authority of New York and New Jersey.

“The Times also believes that the stories of the brave men and women of the [Port Authority] who risked their lives that day should be told.”

In September 2003, the Times gained access to 2,000 pages of transcripts of tapes — except for private calls to dispatchers who connected them to their families — and non-factual oral histories of the events, contributed by firemen. According to Times attorney David McCraw, it was a tremendous victory for the American public.

“The tapes have already revealed a lot of information that is crucial to understanding what happened,” McCraw said. “They have revealed how the structural features of the buildings contributed to unnecessary loss of life, how fast the fire spread, and whether the fire equipment was functionally operational.

“The conversations between firemen have taught us how well-organized and effective the response was,” he added. “There were communications breakdowns that may have resulted in scores of lives being lost, such as people getting lost in the area.”

The pursuit of government records in West Warwick, R.I., and Littleton, Colo., also met resistance, but for different reasons.

In November 2003, Judge Mark Pfeiffer of Kent County Superior Court in Rhode Island ordered the release of tapes of 277 telephone and radio calls between policemen and firefighters, as well as communications between responders and dispatchers, in connection to the Feb. 20, 2003, fire that killed 100 people and injured approximately 200 others at The Station nightclub. The Providence Journal had filed an open records lawsuit for the records in March 2003.

Local authorities, including Rhode Island District Attorney Patrick C. Lynch, initially balked at the Journal‘s request for emergency response recordings.

“Paramount concern for me is the integrity of the investigation,” he told the AP.

Paramount to the Journal was a “full and timely public airing,” said Joel P. Rawson, the newspaper’s executive editor.

“Far too much of the government record is still being held in secret,” he said, in an article in the Journal. “We will continue to use all of our resources to pursue information that is of pressing public interest.”

Not included in the released records were 911 calls from those trapped inside the building and those who escaped. Transcripts and recordings of calls to 911 are exempt from Rhode Island’s Access to Public Records Act.

Like their counterparts in West Warwick, government officials in Jefferson County, Colo., were staunchly opposed to releasing most records in connection to the April 20, 1999, massacre at Columbine High School in Littleton.

Following the deaths of one teacher and 14 students — including the suicides of the two shooters, Eric Harris and Dylan Klebold — the families of the victims sought numerous records from the Jefferson County Sheriff’s Office.

In April 2000, the families of shooting victims Daniel Rohrbrough and Kelley Fleming filed suit after the Sheriff’s Office denied their requests for access to emergency response tapes, the preliminary police report and cafeteria surveillance tapes. The families had requested the records in preparation of a lawsuit against the Sheriff’s Office, charging that deputies did not act “swiftly enough” in response to the emergency phone calls, according to the suit.

Judge Brooke Jackson of District Court in Golden, Colo., ruled in the families’ favor in April 2000, just three days before their suit against the Sheriff’s Office would have to be filed in order to comply with Colorado’s one-year statute of limitations.

In May 2000, Jackson granted further relief in another open records suit against the Sheriff’s Office. In Fleming v. Stone, Jackson ordered the release of 45 hours of 911 emergency response tapes from panicked callers inside the school, and internal dispatches between local authorities. On the tapes, phone numbers and names of callers were redacted, as was a 22-minute segment of a phone call from teacher Patti Nielson to a 911 dispatcher.

“There comes a point where respect for people’s dignity and anguish transcends other considerations,” Jackson said of withholding Nielson’s phone call. Screaming, gunshots and cries for help can be heard in the background, he said.

The 45 hours of recordings were released in July 2000 on two CD-ROMs. The CDs can now be purchased from the Sheriff’s Office for $14 each.

Information gleaned from the released CD-ROM’s was analyzed and published by news media groups throughout the state and country. Local and national newspapers and broadcast outlets provided the public a window into the functions of the county’s emergency response units.

The 911 recordings released in July 2000 raised points imperative to understanding how to respond to such a crisis.

The Columbine Review Commission, for instance, created in September 1999 by Gov. Bill Owens and chaired by former Colorado Supreme Court Justice William Erickson, used the tapes to learn what public officials did wrong in their handling of the emergency.

On April 27, 2001, the commission found that more lives could have been saved if emergency response units planned and executed more effectively. The commission referred to three specific missteps in the emergency response: deputies could have entered the school before the S.W.A.T. team arrived; the S.W.A.T. team could have prevented casualties in the library — where Harris and Klebold killed 10 students — had they raided the school instead of cautiously setting up a perimeter; and running and screaming students and teachers may have distracted emergency response units, who were obviously unprepared for the situation.

“S.W.A.T. teams will now go in instead of screwing around,” Stephen W. Wahlberg, an attorney who represented families of the victims, told Education Week magazine. “The notion that gunmen will have free range to go [around] shooting people is over.”

The release, dissemination and discussion of 911 transcripts and emergency response recordings have served an undeniable function. In an effort to shed light in the wake of tragedy in Colorado, Rhode Island and New York, government watchdogs and members of the news media have led the way.

“The Times wants to help the public understand better what happened on that unprecedented day so that the residents of New Jersey and New York can more fully participate in the ongoing debate over building safety, emergency preparedness and the operations of our public agencies in times of mass disaster,” the newspaper argued in court. “That is democracy at work.”