9/11 ‘Remains’ Dispute Goes to Appeals Court

Chief Leader - January 15, 2013

by SARAH DORSEY

An attorney for a group of Sept. 11 families upset about plans to house their loved ones’ unidentified remains underground inside the National Sept. 11 Memorial and Museum petitioned an appellate court Jan. 9 to release the names and addresses of all those who lost family in the attacks.

Seventeen people affiliated with the nonprofit group 9/11 Parents & Families of Firefighters and World Trade Center Victims filed an appeal in August after a State Supreme Court Justice blocked them from obtaining the 2,749 names through the state Freedom of Information Law (FOIL).

They say the families were never asked to approve the museum’s plans and hope to use the contact information to do their own survey, pledging to abide by the wishes of the majority. Spokespeople from the museum counter that the families were contacted many times and most support the plans.

Argues the Public Interest

Following an emotional pre-hearing rally before clients and supporters packed the courtroom, attorney Norman Siegel told the Appellate Division First Department Judges that the courts had found that public interest trumped privacy concerns in similar cases, especially when the issue was historically significant.

He noted that the law granted families quasi property rights to decide what happens to human remains. He acknowledged that this case is unique because the remains haven’t been identified, but said the principle should still hold. Only 11 percent of families who lost loved ones on Sept. 11 received at least 75 percent of the remains; more than 1,100 families—40 percent of the total—got none at all.

Mr. Siegel also argued that the city violated the U.S. Constitution’s First Amendment and the equal protection clause of the Fourteenth Amendment by providing the names and addresses to the board of the memorial foundation and not to his clients.

“They’re giving it to [them] because they approve of what the memorial foundation is doing,” he said, adding that the foundation advertised its book in some letters it sent to the families, which his clients couldn’t do if they obtained the records through FOIL.

He added that the museum lies in the city’s hurricane evacuation Zone A—a flood zone—and that artifacts had been damaged when the site flooded during Superstorm Sandy.

Cites 2004 Notification

Assistant Corporation Counsel Ellen Ravitch, arguing for Mayor Bloomberg—who chairs the museum foundation—and the City Medical Examiner, said there was no public interest in releasing the names because the foundation had informed the families as early as Jan. 26, 2004 that the plan was to keep the remains several stories underground. She said that the families’ input was solicited.

She noted that if Mr. Siegel’s clients were allowed to obtain the contact information through the Freedom of Information Law, other parties that pledged not to use it for commercial gain could do the same.

“Just because people had family members killed on 9/11 does not mean their names and addresses should be public record,” she said.

Ms. Ravitch denied the 9/11 Parents & Families group’s charges that visitors will have to walk through the museum’s gift shop to get to their loved ones’ remains, and she claimed that the flooding during Hurricane Sandy that damaged artifacts in the underground museum happened because the roof of one of the buildings was not yet attached and wouldn’t be a problem once construction was completed.

After the arguments, Mr. Siegel said he was “cautiously optimistic” about the outcome, adding that he was pleased that the Judges focused on the fact that the addresses were given to the museum foundation but not the families.

“I think they were active. They got it. They got the issue,” he said.

The court’s decision could come in about a month; if the city prevails, Mr. Siegel can take the case to the state Court of Appeals.

A few family members congratulated Mr. Siegel after the hearing, expressing hope that his arguments had hit their mark. At the pre-trial press conference, they’d held pictures of their deceased sons, husbands and brothers and said they wanted the remains to be stored in an aboveground repository similar to the Tomb of the Unknowns in Washington, D.C. Keeping them in a paid museum—even if they themselves were allowed free access—would rob the burial site of dignity, several felt.

Have UFOA Backing

“The bottom line on this whole thing is all we were asking for is consultation,” said Rosemary Cain, whose Firefighter son George Cain was killed on Sept. 11 at age 35. “The [museum executives] aren’t the next of kin. That’s who I am. That’s who Sally [Regenhard] is and all the family members you see here. This is disgraceful. Twenty feet or more of the filthy Hudson River penetrated the basement of that museum [during Sandy].”

“The question I have for [them] is: who owns the dead?” she added. “These are our loved ones.”

Fire Lieut. Jim McCaffrey, whose brother-in-law Orio Palmer died in the attacks, read a statement from Uniformed Fire Officers Association President Al Hagan supporting the families’ position that “all families...should be surveyed, and the collected input seriously considered,” and offering his “ongoing support.”

Others warned that continuing attempts to identify remains using the newest DNA techniques would be threatened if the facility flooded.

9/11 Memorial President Joe Daniels and Mr. Bloomberg insist that families were informed several times of the plans for the remains, through e-mails announcing public meetings and several requests for comment. They say they simply wish to comply with families’ stated request to have the remains returned to bedrock.

The foundation’s plans call for a private viewing area for families located behind a wall inscribed with a quote by Virgil: “No day shall erase you from the memory of time.”

Last March, the 9/11 Parents & Families group sent a survey to 2,100 families whose e-mails they’d obtained through the sleuthing of Bill Doyle, who lost his son, Joseph, in the attacks. Only 350 responded, but of those, the group said that 95 percent didn’t want the remains underground inside the museum.