Thomas H.

Kean
CHAIR September 23, 2003
Lee H. Hamilton
VICE CHAIR
Gary Shaffer, Esq.
Richard Ben-Veniste
New York City Law Department
Max Cleland 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
John F. Lehman
about public disclosure of personal information contained in documents that
are covered by the Commission's document request to the City of New York.
Timothy J. Roeiner You also have indicated concerns about public disclosure of internal
James R. Thompson
deliberative documents and other documents.

On behalf of the Commission, I can assure you that we will not publicly
Philip D. Zelikow
EXECUTIVE DIRECTOR
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 202.296.5545
www.9-1 lcommission.gov
r

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
 AGREEMENT BETWEEN
THE NATIONAL COMMISSION
ON TERRORIST ATTACKS UPON THE UNITED STATES
AND
THE CITY OF NEW YORK

THIS AGREEMENT is entered into on December 3,2003 by the National Commission on

Terrorist Attacks Upon the United States ("the Commission") and the City of New York ("the City")
(collectively, the "Parties") regarding the Commission's subpoena to the City, issued pursuant to
Pub. L. No. 107-306, §(605)(a)(2) on November 21,2003.

Whereas, the Commission is charged by statute with investigating the facts and
circumstances relating to the terrorist attacks of September 11,2001 and the response to the attacks,
and pursuant to the statute has issued a subpoena for tapes and transcripts of "911" calls to the City
of New York on September 11,2001, relating to the terrorist attacks on the World Trade Center, and
for records of 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 ("tapes, transcripts and
records");

Whereas, in the City's view, portions of the tapes, transcripts and records are confidential
and privileged because they are: 1) of an intensely emotional and personal nature, disclosure of
which would be an unwarranted invasion of personal privacy; 2) intra-agency materials, which are
part of the consultative or deliberative process of governmental decision making; or 3) compiled for
law enforcement purposes and their disclosure would interfere with law enforcement investigations
or judicial proceedings, or would deprive a person of the right to a fair trial;

Whereas, the tapes, transcripts and many of the records listed above are the subject of
litigation between the City and the New York Times under the New York State Freedom of
Information Law ("FOIL"), which litigation is currently pending before the Supreme Court of the
State of New York, Appellate Division, First Department;

Whereas, the Parties wish to cooperate with each other to insure a full and fair investigation
of the terrorist attacks on the World Trade Center without compromising the City's interests in
protecting the privacy of victims of the World Trade Center attacks, members of their families, and
those who responded to the attacks; and

Whereas, the Commission has given the City assurances that certain materials it turns over to
the Commission will be treated as confidential;

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the

Parties agree as follows:

1. The City shall deliver to the Commission, no later than December 3, redacted tapes of the

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 911 calls as recorded by the New York City Police Department and redacted transcripts
of oral interviews conducted by the Fire Department of its employees in the aftermath of
the attacks, except that transcripts of 200 of the 500 recorded interviews may be
delivered to the Commission by no later than December 10, 2003. The City may only
redact from the tapes and transcripts any statements that would identify the speaker or
any other person and any emotional statements relating to the attacks.

2. The City will permit the Commission to inspect unredacted tapes and transcripts of the
911 calls (including the Police Department's tapes of 911 calls, tapes made by the Fire
Department of portions of said calls, and transcripts that have been made of the Fire
Department's tapes) and unredacted tapes and transcripts of oral interviews conducted by
the Fire Department of its employees. Such inspection shall commence on December 8
and may continue until issuance of the Commission's final report, and shall take place at
the City's offices between 8 A.M. and 10 P.M. on weekdays and week-ends. The
Commission shall give prior notice to the City of one business day of its intention to
inspect the tapes or transcripts. The City shall preserve such tapes and transcripts for a
period of at least 15 years.

3. The City's delivery of the redacted tapes of 911 calls and transcripts of oral interviews
pursuant to paragraph "1", and its tendering of the unredacted tapes and transcripts for
inspection pursuant to paragraph "2", shall satisfy the subpoena insofar as it seeks tapes
and transcripts of 911 calls and of interviews of employees of the Fire Department, and
the Commission shall not issue another subpoena for such materials. Except as
otherwise set forth in this Agreement, nothing herein shall affect the City's obligation to
respond to the subpoena insofar as it seeks records of interviews other than the interviews
conducted by the Fire Department of its employees.

4. Upon resolution of all appeals in the above-referenced FOIL action brought by the New
York Times, the City shall promptly provide to the Commission all material that it is
ordered to provide to the New York Times.

5. The Commission shall not publicly disclose or release any portion of the tapes,
transcripts and records provided or tendered for inspection in response to the subpoena,
or notes or other material derived from them, and shall not transcribe or make copies of
the tapes, transcripts and records that it inspects. The Commission may, however, take
such notes during its inspection of the unredacted tapes, transcripts and records as it feels
necessary to fulfill its mandate, and may retain those notes subject to the provisions of
this paragraph. The Commission shall oppose any subpoena or other request for
disclosure of these materials. Upon completion of its work, the Commission shall enter
into an agreement with the National Archives and Records Administration ("National
Archives") pursuant to which public disclosure of the tapes, transcripts and records, and
any notes derived therefrom, and other personal, deliberative and other sensitive
documents, shall be barred for a substantial period of time, which shall be not less than
twenty five years. Such agreement shall require the National Archives to oppose any

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 subpoena, except a subpoena issued by a grand jury or prosecutor, or other request for
disclosure of these materials. Nothing herein shall preclude the Commission from
including in its final report any statement made by a person if the individual consents
thereto.

6. The City shall make its best efforts to respond to any other outstanding requests by the
Commission for documents by no later than December 15,2003, and in any event shall
respond to all outstanding requests by December 31,2003.

7. All additions or modifications to this Agreement must be in writing and signed by the
Parties.

8. The undersigned represent that they have authority to enter into this Agreement and to
make all of the representations and commitments set forth herein.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.

The National Commission on Terrorist Attacks Upon the United States

By: //i

Print Name:

Title:

The City of New York

Print Name:

Title: V>*tf

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