Ny B16 Gov Thomas H Kean Fdr- Aug-nov 03 Letters-memos-subpoena Re Nyc Agreement And Materials

I, Thomas H. Kean, declare under penalty of perjury and 1.

I am the Chairman of the National Commission on Terrorist Attacks Upon the United States (the "Commission").

2.

The Bill that created the Commission was passed by Congress and signed into law by the President of the United States on November 27, 2002, pursuant to Public Law 107-306.

3.

The Commission is chartered to prepare a full and complete account of the circumstances surrounding the September 11, 2001 terrorist attacks, including preparedness for and the immediate response to the attacks. The Commission is also mandated to provide recommendations designed to guard against future attacks.

4.

The Commission is required to report eighteen months after enactment, or no later than May 27, 2004.

5.

Under Section 605(a)(l)(B) of Public Law 107-306 the Commission is vested with the authority to require, by subpoena or otherwise, the production of "such books, records, correspondence, memoranda, papers, and documents".

6.

In letters dated July 9. 2003 and August 11, 2003. the Commission requested the City of New York (the "City") to produce various documents related to the City's immediate response to the September 11, 2001 terrorist attacks (hereinafter the "Letter Requests"). The Letter Requests are attached to this Declaration as Exhibits A and B.

7.

The Letter Requests expressly required production of "all 911 emergency calls and transcripts of communications on September 11, 2001" related to attacks on the World Trade Center. (See Exhibit B, *| 3). The Letter Requests also required production of all transcripts of interviews of Fire Department of New York employees related to the Fire Department's response to the September 11 terrorist attacks. (See Exhibit A, *|f 8). (The transcripts of firefighter interviews and the 911 tapes are referred to hereafter as "the Materials").

8.

The City initially acknowledged to Commission staff that it possesses the Materials, but refused to produce them without explanation. When Commission Staff sought an explanation from the City for its refusal to produce the Materials, the City cited concerns about public disclosure of personal information of individual victims and their families, and first responders from the City's Fire Department and Police Department. Specifically, the City cited concerns over disclosure of individuals' identities and emotional statements contained in the requested materials.

9.

The Commission then addressed the City's concerns. In a September 23, 2003 letter from its general counsel to the City, the Commission acknowledged the privacy interests of individual victims, their families and first responders. The Commission further assured the City it would not publicly disclose "their names or personal information about them in our public report without further consultation and agreement with the City or individual in question." (See September 23, 2003 letter attached hereto as Exhibit C.)

10.

Notwithstanding the Commission's written assurances to protect the individuals' privacy interests, the City continued to refuse to produce the Materials. Commission staff then engaged in further negotiations with the City for the release of the materials. In late October 2003, the City offered to give the Commission limited access to redacted materials. Among other reasons, the Commission declined the City's offer because: (i) the offer did not guarantee the Commission access to any form of the materials before December 31, 2003; (ii) the offer did not give the Commission full access to the Materials in an un-redacted form. Instead, the City offered to permit the Commission to inspect a redacted version of the Materials at its counsel's offices while the Materials remained in sole possession of the City. Notwithstanding the Commission's repeated promise to protect the privacy interests of individuals, the City once again stated the Materials would exclude all information which could either "identify any specific individual" or reflect "the emotional state or emotional reaction of any specific person." The Commission rejected the City's October offer of limited access to redacted materials.

11.

Thereafter, the Commission advised the City that it would consider the issuance of a subpoena if the City refused to fully comply with the Commission's requests for production of Materials. The Commission repeatedly advised the City that the Commission's ability to complete its work prior to the statutory deadline of May 27, 2004 would be severely compromised if the City refused to immediately produce the un-redacted Materials.

12.

On November 21, 2003 the Commission issued a subpoena for the Materials. The due date for the Production of the Materials is December 3, 2003. The City now refuses to comply with the subpoena. Instead, the City has offered to provide the Commission with copies of redacted versions of the Materials while permitting Commission staff to inspect the un-redacted materials under the following conditions: (i) a City employee or "minder" must be present while Commission staff reviews the Materials and (ii) the Materials must be reviewed at the offices of City Counsel on specific dates and at times to be mutually agreed upon by both parties.

13.

The Commission has rejected the City's offer and requests this Court to enforce the subpoena. In order to fulfill its mandate and issue a report and recommendations to Congress no later than May 27, 2004, the Commission must have copies of the un-redacted Materials. The enabling statute of the Commission mandates "a full and complete accounting of the circumstances surrounding the attacks" on 9/11, including "the United States' preparedness for, and immediate response to, the attacks." The materials, in their unredacted form, are essential to the Commission's work. The 911 tapes provide the critical signposts of situational awareness in documenting the interaction between the public and the City on September 11, 2001. This critical information also illuminates how well or poorly information was shared between various federal, state and local agencies that responded to the attacks.

14.

The FDNY interviews are also very important. In its impact on both lives saved and lives lost, the FDNY was the most significant first responding agency on September 11. The Commission's review of the FDNY interviews will provide critical insight into the nation's first responders' "preparedness for and immediate response to the attacks."

15.

It is important that the Commission staff not be required to review the unredacted Materials at City Counsel's offices on certain dates and times. The Commission staff is divided into eight teams. Team 8 is the team responsible for investigating the first responders' preparedness for and immediate response to the attacks on New York City. The same team is responsible for investigating the first responders' preparedness for and immediate response to the attacks on the Pentagon. The same team is also charged with investigating the facts and circumstances of the attacks as they relate to the hijacking of the four commercial aircraft on 9/11 and our nation's air defense to the attacks. There are approximately 8 staff members on Team 8 responsible for conducting interviews related to its work. Only four members of Team 8 are currently assigned to conduct interviews related to the emergency response to the attacks on New York City. There are in excess of 200 interviews to be conducted by those 4 members of Team 8. The interviews must be completed, memorialized, analyzed and synthesized into a complete and accurate account of the events as they occurred in New York City. The Commission anticipates that most if not all of the interviews will be conducted during the normal business hours of 9:00 a.m. to 5:00 p.m. This scenario leaves little or no time during business hours for Team 8 to review the unredacted Materials and thousands of pages of documents already given to the Commission by various federal, state and local agencies. Simply stated, Team 8 must have access to the un-redacted Materials at its offices and at all times in order to complete all its work prior to the statutory deadline of May 27, 2004.

Mail:: INBOX: Gov. Kean Declaration

Page 1 of 1

INBOX Compose Folders Options Search Problem? Help Addressbook Tasks Memos Calendar Logout

Open Folder

I

207.36MB / 476.84MB (43.49%)

INBOX: Gov.

Declaration (16 of 2210)

C

Move|co Py This message to

Delete | Reply | Reply to All | Forward | Redirect | Blacklist | Message Source | Resume | Save as | Print

Back to INBOX ^

Date: Wed, 26 Nov 2003 10:22:46 -0500 From: "" <[email protected]>^' To: "" <scaspersen@9-11 commission.gov>4i

" <jazzarello@9-11 commission. gov>^P, ""
11commission.gov> Subject: Gov. Kean Declaration

Sam, John, and George -- I spoke to Dan and Steve about NYC last night. They agreed to allow me to take the lead - - a t least for now - - i n discussions with Larry Kahn. So I'll be calling him today (in case you're wondering, this is really no vacation at all! !) . In the mean time, would you guys begin drafting a declaration for Gov. Kean, setting forth who he is, the mandate of the Commission, the importance of the info we're seeking, and the chronology of NYC's uncooperative attitude? We'll need to forward this to DC on Monday, assuming that Larry and I don't agree today (a pretty fair assumption, to be sure) . Thanks, John Delete | Reply | Reply to All | Forward | Redirect | Blacklist | Message Source | Resume | Save as | Print

Back to INBOX

^ t>

Move | Copy This message to •

http://kinesis.swishmail.com/webmail/imp/message.php?index=2373

11/26/2003

NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES

SUBPOENA To the City of New York, Greeting: Pursuant to lawful authority, YOU ARE HEREBY COMMANDED to produce no later than December 3,2003, at the offices of the National Commission on Terrorist Attacks Upon the United States, 301 7th Street, S.W., Room 5125, Washington, D.C., the books, records, correspondence, memoranda, papers, and documents set forth in Attachment A. Any contumacy or failure to obey this subpoena may subject you to sanctions and penalties provided by law. This subpoena to be served by any member of the staff of the National Commission on Terrorist Attacks Upon the United States.

Given under my hand, by vote of the Commission, this 21st day of November, 2003.

Thomas H. Kean Chair, National Commission on Terrorist Attacks Upon the United States

RETURN . 2003

No

Scarr

, a member of the

staff of the National Commission on Terrorist Attacks Upon the United States, served this subpoena by hand upon

L-Ai^ 'fe-es* c.&

g.

at

at

V •'

day of

on the 2003.

ATTACHMENT A Tapes and transcripts for all "911" calls to the City of New York (including any of its departments and agencies) on September 11, 2001, relating to the terrorist attacks on the World Trade Center; and Records of all interviews conducted in connection with any report, study, evaluation, critique, summary, review, or historical project relating to the New York City Fire Department's response, from September 11,2001 through September 20, 2001, to the terrorist attacks on the World Trade Center. The term "documents" shall be interpreted broadly to mean written, recorded, and graphic materials of every kind in the City of New York's possession, custody, or control, including (without limitation) computer files, electronic mail, notes, drafts, and non-identical copies. The term "computer files" includes information stored in, or accessible through, computer or other information retrieval systems, translated, if necessary, by the City of New York into reasonably useable form.

NOV.13.2003

Thomas H. Kean CHAIR

:02PM

NO.097

P. 4/5

September 23,2003

Lee H. Hamilton VICE CHAIR. Richard Bcn-Vcnistc Max Cleland

Gary Shaffer, Esq. New York City Law Department 100 Church Street New York, New York 10007

Frederick F. Fielding Jamie S. Gorelick

Dear Gary:

Slade Gorton

This will confirm our telephone conversation responding to your concerns about public disclosure of personal information contained in documents that are covered by the Commission's document request to the City of New York, You also have indicated concerns about public disclosure of internal deliberative documents and other documents.

John F Lehman Timothy J. Roemer James R. Thompson Philip D. Zclikow EXECUTIVE DIRECTOR

On behalf of the Commission, I can assure you that we will not publicly disclose any documents provided to us by the City prior to the issuance of our public report next May. Beyond that (1) we acknowledge the privacy interests of individual victims, their families, and first responders, and we will not disclose their names or personal information about them in our public report without further consultation and agreement with the City or the individual in question; and (2) upon completion of our work, all Commission documents will be turned over to the National Archives pursuant to an agreement which will preclude public disclosure of personal, deliberative, and other sensitive documents for a substantial time period - typically, 25 or 50 years. As we discussed on the phone, we are confident we can successfully resist any efforts by parties in pending litigation against the City or others to obtain through third-party discovery documents produced to us. As a legislative branch entity, we are exempt from the Freedom of Information Act. And we have met personally with the leadership of the Civil Division of the Justice Department, which has assured us that they are confident that they can successfully defend us against any such discovery effort.

301 7 lh Street SW, Room 5125 Washington, DC 20407 T 202.331.4060 f 202.296.554.5 www, 9-11 cornm ission.gov

J.2003

l:02PM

NO.097

P.5/5

Gary Shaffer, Esq, September 22, 2003 Page 2

I trust this letter responds to your concerns. We look forward to a continued constructive relationship with the City and the Corporation Counsel as we proceed with our work. Sincerely,

Janiel Marcus General Counsel

MEMORANDUM

November 18 To: John Farmer From: Sam Caspersen The following documents and materials have been produced by New York City in response to our document request of July 9: NYPD

I. Produced on July 25 • • • • • • • • • • • •

All relevant NYPD standard operating procedures "Unusual Occurrence Report" for 1993 WTC bombing Citywide Security Assessment Plan, 1998 FDNY high rise rappel kit SOP (which utilized by NYPD ESU) Helicopter rooftop rescue manual Numerous FEMA training manuals re trench rescue, collapsed building rescue, etc. 8 radio communication tapes for 9/11, from 8 AM to noon [need SPRINT Reports as road map 43 dispatch tapes for 9/11 [need Sprint Reports as a Road Map] 45 video tapes taken at WTC/Ground Zero from 9/11 to 9/20 summary maps of NYPD Command Posts and Mobilization/S.W.A.M.P. [less informative than it sounds] McKinsey Report [the Report anyone can find on the internet] A CD with a WTC Presentation [not very informative]

Produced on August 11 •

Seven video tapes of clean-up at Ground Zero, from 9/11-9/20

Produced on November 7 • • •

S.W.A.M.P. Maps/charts [already produced] Command Logs for most precincts in Manhattan South Data re line of duty injury reports at WTC on 9/11 [but not the actual reports, which should indicate where injury occurred, and not Line of Duty fatality reports]

FDNY

Produced on August 11 • • •

Firefighting SOP for high rise office buildings Training bulletin for elevator operations Manual on air support plans - high rise fires

Produced on August 26 • • • • • •

Radio Code Signals [i.e., code number used to identify oven fire, etc.] Fire Safety Plans for WTC Towers 1,2,7 [also produced by Port Authority] Post 1993 WTC bombing Memorandum of Understanding between FDNY and Port Authority [pertains to FDNY inspections and recommendations re improvements to fire safety of WTC] Example of member injury report form [useless] 2 incident summary reports re WTC on 9/11 staffing and mobilization data for 9/11 [very, very useful]

September 26 •

Substantial materials related to McKinsey Report; consist not of FDNY data or materials, but of all background research McKinsey did on urban fire departments and first responders to terrorism (e.g. Los Angeles County Target Hazard Plan Instructions; e.g., Seattle Fire Department Instruction Notes) [Very useful for education purposes and for comparing FDNY to other major cities' fire departments

Office of Emergency Management Produced on October 7 •

6 OEM Situation reports, from 9/18-9/20

Department of Health Produced on October 15 •

DOH Daily Summaries of WTC Disaster Response, 9/12-9/20

S.M.W.C.

MEMORANDUM

November 17,2003

From: Sam Caspersen To: John Farmer Re: New York City Documents Status The purpose of this memorandum is to detail the status of New York City's cooperation with our document production, specifically with respect NYPD, FDNY and OEM. Our Document Request On July 9, 2003, we sent a comprehensive document request to the General Counsel of the City of New York. This request, a copy of which is attached, requested records/materials/documents in three broad categories from various New York City agencies, most notably FDNY, NYPD, and OEM. The three categories essentially are (i) all materials related to standard operating procedures and systems in place on September 10, 2001; (ii) radio dispatch tapes/911 tapes/transcripts of all communications/video tapes/unit location charts/other forms of raw data which pertained to what happened on September 11; (iii) all internal and external summaries/after action reports/ consulting reviews/critiques/evaluations, as well as all supporting and contributing materials, which were conducted after September 11. Also attached is an inventory of outstanding documents. NYC's Response Re 911 Tapes, FDNY Interviews, McKinsey Materials With respect to the City's 9/11 tapes for September 11, transcripts of interviews of 500 firefighters and officers who responded on September 11, and materials related to the McKinsey Reports, the City has been entirely uncooperative. 1.911 Tapes The 911 tapes would be crucial, as they would provide the primary documentation of interaction between the public and the City on September 11. They would be

invaluable in documenting when the City knew certain things and therefore should illuminate how well or poorly information was shared between different departments. For example, we have learned from the Port Authority 911 tapes that a Port Authority dispatch officer in Jersey City told 13 occupants on the 64th floor of the Northern Tower to stay put for the time being - 13 minutes after a Port Authority Police Captain at the WTC ordered the entire complex to be evacuated. (Those 13 occupants died.) The City has resisted producing the 911 tapes on grounds that doing so could harm the privacy rights of individuals. It is my strong opinion that this stated concern is entirely disingenuous and that the City's real concern is protecting itself from liability. This opinion is based in part on the fact that the City has suggested a compromise by which we could view the tapes at a City location by "no later than December 31," which happens to be after the scheduled December deadline for surviving family members of the 9/11 attacks to opt in or opt out of the compensation system which would preclude bringing lawsuits against the City. FDNY Interviews The FDNY were the most significant City first responders on September 11, and for this reason alone we believe transcripts of 500 interviews would be invaluable. We have learned from our work to date that the performance of the FDNY on September 11 suffered from significant shortcomings in standard operating procedures, technological failures, and human error. Written transcripts of 500 firemen's experiences that day would be crucial in themselves and also would provide us excellent leads with respect to interview request and interview subject matters to be broached. The City once again uses the privacy defense in refusing to provide these. McKinsey Materials McKinsey conducted a significant number of interviews of NYPD and FDNY employees. Transcripts or notes of these would be extremely helpful, for the reasons stated above. In addition McKinsey memoranda could be very illuminating if they speak to issues which are not discussed in the final report. For example, the McKinsey FDNY final report essentially suggests that the Port Authority's repeater system in the World Trade Center technically failed on September 11, forcing the FDNY to switch to a different frequency which did not work on upper floors. However, we know from interviewing Port Authority employees that prior to their final report McKinsey consultants sat in on debriefings in which the Port Authority explained to the FDNY how human error in the FDNY, not a technical system failure, caused the repeater system to be ineffective. The City has advised us most emphatically that they never were given a file of McKinsey's work product; so they cannot provide us all of McKinsey back up materials. However, I know from speaking with former McKinsey consultants that while McKinsey does not keep a comprehensive central filing system, individual consultants to keep

robust files of previous work assignments, particularly when an assignment ended only 15 months ago, as is the case in this instance. McKinsey of course was the City's client in this case and would be most willing to honor the City's request to turn these documents over. We should discuss strategy re McKinsey documents further. All Other Documents With respect to all other our document request New York City's response request has been inconsistent, lethargic and often cooperative only after delay. For example, while we received the NYPD standard operating procedures for response to major incident/catastrophes, we have yet to receive the same for the FDNY or OEM. As another example, on August 11, we sent the City a second letter clarifying what we expected to receive from the NYPD (although it was clear enough in our initial request). The City responded by suggesting a follow-up meeting between us, the NYPD, and City council, and then dragged out the scheduling of the meeting until October 17. Following that meeting, in which we reiterated our request, the City asked that we again send the request in writing, which we did. At present the City is dragging their heals on production of some of these materials, because of privacy concerns (although those concerns were fully addressed in Dan Marcus' August 26 letter to the City). However, progress is being made, due to an increasingly aggressive approach on my part of just staying on top of them, much like a parent must stay on a child and browbeat that child until that child actually completes a relatively simple task. I also have conveyed to city attorneys remarks on the lines of "The Commissioners are meeting next week and might find a summary of NYC document production of interest." Conclusion Unlike the executive branch of the federal government, New York City has never promised to cooperate fully with the September 11 Commission. Their response to our document request has varied between outright stonewalling and lethargic and inconsistent cooperation. The city gives ground only when pushed aggressively. Therefore, I recommend that we subpoena everything.

Thomas I-I. Kean CHAIR

Lee H. Hamilton VICE C H A I R

Fax Cover Sheet

Richard Ben-Veniste Max Cleland Fred F. Fielding

To: Gary P. Shaffer

Jamie S. Gorelick Slade Gorton

Fax #: 212-676-2597

John Lehman Timothy J. Roemer

From: Samuel M. W. Caspersen

James R. Thompson

Philip D. Zelikow

Date: November 13, 2003

E X E C U T I V E DIRECTOR

Number of pages (including cover sheet): 4 Gary, Enclosed is both Dan Marcus's September 23 letter to you and a letter dated today which is a revised version of the paragraph you e-mailed me and which has been approved by John Farmer. You will note that the only change is in the last two sentences, in order to differentiate between information related to the 9/11 attacks and the "Unrelated "Information." Dan Marcus's September 23 letter to you addresses your question of time duration in the national archive. S.M.W.C.

26 Federal Plaza, Suite 13-100 New York, NY 10278 TEL (212) 264-1505 FAX (212) 264-1595 www.9-1 lcommission.gov

Thomas H. Kean CHAIR

November 13, 2003

Lee H. Hamilton VICE CHAIR

Richard Ben-Veniste Max Cleland

Gary P. Shaffer The City of New York Law Department 100 Church Street New York, NY 10007

Fred F. Fielding Jamie S. Gorclick Slade Gorton John Lehman Timothy J. Roemer James R. Thompson

Philip D. Zelikow E X E C U T I V E DIRECTOR

Mr. Shaffer: Reference is made to Dan Marcus's letter of September 23, 2003 regarding confidentiality of materials produced by the City of New York. With regard to the sprint reports for the 24 hour period from 8 a.m. September 11,2001 to 8 a.m. September 12, 2001, the Commission understands that these reports contain information not directly related to the attacks, but which may provide useful background information regarding police activities during the period covered. Some of the information in the reports relates to reports of criminal activities or personal health crises and contains potentially identifying information of individuals who are neither victims of the 9/11 attacks, nor families of victims, nor first responders (the information unrelated to the September 11, 2001 Terrorist Attacks is the "Unrelated Information.") The Commission agrees that it is imperative that any of Unrelated Information contained in the sprint reports not be released and that any requests for release or disclosure of these materials will be vigorously opposed by the Commission.

Samuel M.W. Caspersen

26 Federal Plaza, Suite 13-100 New York, NY 10278 TEL (212) 264-1505 FAX (212) 264-1595 www.9-11 commission.gov

Thomas H. Kean CHAIR

Lee H. Hamilton VICE CHAIR Richard Ben-V enisle Max Cleland Fred F. Fielding Jamie S. Gorelick

August 11,2003 Gary Shaffer, Esq. Assistant Corporation Counsel 100 Church Street, 20th Floor New York, NY 10007 Dear Mr. Shaffer:

Slade Gorton John Lehman Timothy J. Roemer James R. Thompson

Philip D. Zelikow EXECUTIVE DIRECTOR

Pursuant to our telephone conversation of earlier today, this letter clarifies that the following documents are requested in paragraph A-2 of the Commission's NYC Document Request No.l: 1. All Special Police Radio Information Network Terminal (SPRINT) reports, including all tapes and transcripts related to 911 telephone calls and radio transmissions on September 11, 2001; 2. All Field Administrative Terminal Network (FATN) reports, including all tapes and transcripts; and 3. All 911 emergency calls and transcripts of communications on September 11, 2001 related to the WTC attacks. Please feel free to call me at 212-264-1588 if you have any questions or concerns regarding the above request. Thank you for your cooperation with the Commission and its staff in this important matter. Sincerely,

26 Federal Plaza, Suite 13-100 New York, NY 10278 TEL (212) 264-1505 FAX (212) 264-1595 www.9-llcommission.gov