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MEMORANDUM

November 17, 2003

From: Team 8

To: Front Office

Re: New York City Document Production Status

As you are aware, the enabling statute of the National Commission on Terrorist Attacks upon the
United States 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
statute further empowers the National Commission to avail itself of information from government
sources at all levels, federal, 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 been
charged with investigating the nation's immediate response to the 9/11 attacks at all levels of
government, from the operations of the nation's air defense system to the activities of emergency
responders at the crash sites; the National Commission has recently issued subpoenas to the Department
of Defense and the Federal Aviation Administration in order to compel compliance with Team 8's
document requests to those entities. The purpose of this memorandum is to detail the status of New
York City's cooperation with Team 8's document requests, specifically with respect to the Police
Department ("NYPD"), the Fire Department ("FDNY"), and the Office of Emergency Management
("OEM").

I. Team 8's Document Request

On July 9, 2003, in order to assist it in reconstructing the immediate response to the 9/11 attacks
on the ground in New York City, Team 8 forwarded a comprehensive document request to the
Corporation Counsel of the City of New York. This request sought records/materials/documents in three
broad categories from various New York City agencies: (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; and (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. Of particular importance to Team 8 were tapes or transcripts of 911 calls
placed the morning of 9/11 and at least 500 oral history interviews that were conducted internally by the
FDNY. Responsive documents were due by the end of July.

II. The City's Response

In response to the Commission's request, the City produced, on July 25, 2003, all relevant NYPD
standard operating procedures; an "Unusual Occurrence Report" for the 1993 World Trade Center
bombing; a Citywide Security Assessment Plan from 1988; 8 radio communication tapes for 9/11 from 8
a.m. through noon; 43 dispatch tapes for 9/11; and 45 video tapes taken at the World Trade Center site
on 9/11 and in the following days, among other documents. This was followed, in subsequent
productions, by further videotapes (August 11), command logs for Manhattan South precinct and data
regarding line of duty injury reports at the Trade Center on 9/11 (November 7), FDNY SOPs for high-

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rise office buildings (August 11), FDNY post-1993 Memoranda of Understanding with the Port
Authority and 2 incident summary reports regarding 9/11 (August 26), substantial materials related to
the McKinsey Report (consisting largely of data related to other urban fire departments and first
responders to terrorism) (September 26), 6 OEM situation reports, from 9/18-9/20 (October 7), and (on
October 15) Department of Health Summaries of Disaster Response from 9/12-9/20.

This production, while not unresponsive, has omitted several categories of highly probative
documents. Among other omissions, the City has failed to produce the tapes and transcripts of 911 calls
from the morning of 9/11, so-called "SPRINT" reports (contemporaneous logs of radio dispatches) that
will assist greatly in deciphering the radio dispatch tapes, and at least 500 after-action interviews
conducted as "oral histories" by the FDNY. In refusing to turn over such material, the City has
consistently cited privacy concerns and pending litigation.

The Commission has attempted to address these concerns in a variety of ways. In a letter dated
August 26, 2003, Dan Marcus agreed, on behalf of the Commission, to safeguard the privacy interests of
individuals identified in responsive documents, as well as legitimate confidentiality concerns of the
City. Notwithstanding these assurances, and despite numerous subsequent meetings and conversations
with Corporation Counsel, the City has refused to turn over the 911 tapes and/or transcripts and the oral
history interviews.

III. Importance of the Withheld Documents

A. The 911 Tapes

The 911 tapes provide the critical signposts of situational awareness in documenting the
interaction between the public and the City on September 11. They also illuminate how well or poorly
information was shared between different departments: one of the principal foci of Team 8's
investigation. The potential value of the 911 tapes and/or transcripts is illustrated by contrasting
reference to the Port Authority, which has produced transcripts of their 911 tapes. We have learned from
the Port Authority 911 transcripts 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. This lack of communication -
which in this instance was a mater of life and death, as the thirteen occupants perished - could not have
been proven in the absence of the 911 transcripts.

B. The FDNY Interviews

In its impact on both lives saved and lives lost, the FDNY was the most significant first
responding agency on September 11. 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, but also would provide us excellent leads with respect to interview request and interview
subject matters to be broached. Again, a contrasting example is instructive. The first responder
interviews from the Pentagon Historical Project, which the Department of Defense has (after a
significant delay) provided, have proven invaluable to Team 8 in piecing together the events of 9/11 at
the 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 FDNY
interview transcripts; rather, the City, citing the pendency of its appeal of an unfavorable ruling in a suit
by the New York Times demanding the release of the tapes and interviews, has offered as a compromise
to make them available on December 31 or when the City loses its appeal, whichever is sooner. The
choice of this date -just past the deadline when the victims' families must decide whether to opt in or
out of the compensation fund - strikes Team 8 as cynical. Furthermore, given the team's time
constraints, Team 8 believes strongly that another month and a half s delay would be unwarranted.

Unlike most agencies of the federal government, there is a risk where New York is concerned
that a subpoena may result in litigation. Team 8 believes, however, that a subpoena could be
successfully enforced as against the City, and that the Commission would be vindicating the public trust
placed in it by seeking enforcement of a subpoena, if one is issued. There is a further risk that the
issuance of a subpoena will erode whatever cooperation has existed, and require the issuance of further
subpoenas for both documents and witnesses. Team 8 believes, however, that New York's "cooperative
spirit" has been insufficient to date to justify forbearance because of this concern.

Conclusion

On balance, Team 8 recommends strongly the issuance of a subpoena for, at a minimum, the 911
tapes and the firefighter interview transcripts. (There are other responsive documents - the SPRINT
reports, for instance - that could be included if they are not received by the issuance date. Our
understanding is, however, that we should be receiving them.) Consistent with the Commission's
approach with other agencies, Team 8 has tried to work cooperatively with the City; we have, for
instance, agreed to conduct 125 interviews jointly with NIST, to save the City the angst and expense of
conducting the interviews twice. New York City's cooperation, by contrast, has been both dilatory and
inconsistent, 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 York City.

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