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 un-
redacted 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 un-
redacted 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 un-
redacted 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

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Date: Wed, 26 Nov 2003 10:22:46 -0500
From: "" <jfarmer@9-11commission.gov>^'
To: "" <scaspersen@9-11 commission.gov>4i " <jazzarello@9-11 commission. gov>^P, "" <gdelgrosso@9-
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

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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

No . 2003

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 •' on the day of

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 :02PM NO.097 P. 4/5

Thomas H. Kean
CHAIR September 23,2003
Lee H. Hamilton
VICE CHAIR.
Gary Shaffer, Esq.
Richard Bcn-Vcnistc
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. Roemer 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. Zclikow disclose any documents provided to us by the City prior to the issuance of our
EXECUTIVE DIRECTOR
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

Richard Ben-Veniste Fax Cover Sheet

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

Date: November 13, 2003

Philip D. Zelikow
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 November 13, 2003
CHAIR

Lee H. Hamilton
VICE CHAIR
Gary P. Shaffer
Richard Ben-Veniste The City of New York Law Department
Max Cleland
100 Church Street
New York, NY 10007
Fred F. Fielding
Mr. Shaffer:
Jamie S. Gorclick

Slade Gorton Reference is made to Dan Marcus's letter of September 23, 2003
regarding confidentiality of materials produced by the City of New York.
John Lehman With regard to the sprint reports for the 24 hour period from 8 a.m.
Timothy J. Roemer
September 11,2001 to 8 a.m. September 12, 2001, the Commission understands
that these reports contain information not directly related to the attacks,
James R. Thompson but which may provide useful background information regarding police
activities during the period covered. Some of the information in the
Philip D. Zelikow
reports relates to reports of criminal activities or personal health crises
E X E C U T I V E DIRECTOR 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
August 11,2003
Lee H. Hamilton
VICE CHAIR

Richard Ben-V enisle

Gary Shaffer, Esq.
Assistant Corporation Counsel
Max Cleland 100 Church Street, 20th Floor
Fred F. Fielding
New York, NY 10007
Jamie S. Gorelick Dear Mr. Shaffer:
Slade Gorton
Pursuant to our telephone conversation of earlier today, this letter
John Lehman
clarifies that the following documents are requested in paragraph A-2 of
Timothy J. Roemer the Commission's NYC Document Request No.l:
James R. Thompson
1. All Special Police Radio Information Network Terminal
(SPRINT) reports, including all tapes and transcripts related to
Philip D. Zelikow
EXECUTIVE DIRECTOR 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