## Facts

- A reporter and newspaper sought disclosure under New York’s Freedom of Information Law (FOIL) of FDNY records related to September 11, 2001.
- The requests targeted (1) recordings/transcripts of 911 calls, (2) FDNY internal dispatch communications, and (3) firefighter “oral histories” (post-event interviews).
- FDNY largely denied access, prompting an article 78 proceeding to compel production.
- Family members of eight decedents intervened in support of disclosure, seeking release of their relatives’ 911 call words.
- The trial court ordered substantial disclosure with redactions: most private 911 caller words; FDNY employee opinions/recommendations in dispatch calls; and opinions/recommendations and “personal expressions of feelings” in oral histories.
- The intermediate appellate court largely affirmed but required disclosure of “personal expressions of feelings” in oral histories (no redaction on that basis).
- The state high court reviewed the extent to which FOIL required disclosure and the permissible scope of redaction across the three record categories.

## Issues

1. Whether FOIL’s privacy exemption permits withholding the words of private individuals captured in September 11 911 calls, and whether the operators’ words must be disclosed.
2. Whether FDNY dispatch communications are exempt as intra-agency materials, and which portions must still be disclosed as factual or otherwise required content.
3. Whether firefighter oral histories are intra-agency materials and, if so, how to separate disclosable factual narrative from exempt opinion, recommendation, or deliberative material, including “personal expressions of feelings.”

## Decision

- The court largely affirmed the disclosure orders but modified them in two respects.
- 911 calls: FDNY was required to disclose recordings/transcripts, but could redact the words of private callers as an unwarranted invasion of personal privacy, except for the eight decedents whose families affirmatively sought disclosure; the words of 911 operators had to be disclosed.
- Dispatch calls: the recordings were intra-agency materials, allowing FDNY to redact opinions and recommendations, but requiring disclosure of factual portions and other content FOIL specifies as disclosable.
- Oral histories: the interviews were intra-agency materials; FDNY had to disclose factual narrative and could redact only genuine opinion, recommendation, or deliberative content; “personal expressions of feelings” were not categorically exempt.

## Legal Principles

- FOIL creates a presumption of access; exemptions are narrowly construed, and the agency bears the burden of justifying withholding.
- The privacy exemption permits redaction of highly personal statements by private individuals when disclosure would be an unwarranted invasion of personal privacy.
- The intra-agency exemption permits withholding of internal opinions and recommendations but requires disclosure of factual data and other categories expressly made disclosable by statute.
- Courts may require a line-by-line segregation of exempt from nonexempt material rather than wholesale withholding of mixed records.

## Conclusion

FOIL required broad disclosure of FDNY September 11 recordings and transcripts, while permitting targeted redactions to protect private 911 callers’ privacy and to withhold only intra-agency opinions and recommendations, not factual narrative.


Matter of N.Y. Times Co. v. City of N.Y. Fire Dep’t, 4 N.Y.3d 477 (N.Y. 2005)