911 Health Watch Inc. Goes to Court Seeking the Records as to What the Administration of then New York City Mayor Giuliani Knew About the Toxins at Ground Zero and When Did They Know It?
911 Health Watch Inc. announced it has filed an “Article 78” lawsuit in New York State Supreme Court to challenge the response by the New York City Department of Environmental Protection (DEP) and the New York City Office of Emergency Management (OEM) to our Freedom of Information Request filed on September 8, 2023.
You can see the documents filed with the court here.
911 Health Watch Inc along with the pro bono assistance of the Law Offices of Andrew J. Carboy LLC and Turken Heath & McCauley LLP, filed the original FOIL request on September 8th 2023 on behalf of Benjamin Chevat, Director of 911 Health Watch; Karen Klingon, Executrix of the Estate of Robert Klingon (resident of lower Manhattan); Yvonne Baisley, Executrix of the Estate of FDNY Firefighter Robert Fitzgibbon; Phil Alvarez on behalf of his brother, NYPD Detective Luis G. Alvarez, deceased; and Charlotte Berwind, Executrix of the Estate of volunteer firefighter Charles E. Flickinger, Jr. seeking records and documents as to the knowledge of then Mayor Rudolph Giuliani’s administration concerning the likely health impact of toxins spewing from the World Trade Center.
911 Health Watch FOIL Request Here.
Also requested, the October 2001 memorandum from Deputy Mayor Robert M. Harding referenced in the New York Times article, “Ground Zero Illnesses Clouding Giuliani’s Legacy.” (Anthony DePalma, May 14th, 2007).
As Anthony DePalma reported while then-Mayor Giuliani’s administration pronounced the air of lower Manhattan to be safe, City officials privately predicted 10,000 liability claims for injuries sustained from breathing that same air.
Whatever they were saying publicly about the safety of the air, Mr. Giuliani and his staff were privately worried. A memo to Deputy Mayor Robert M. Harding from his assistant in early October said that the city faced as many as 10,000 liability claims connected to 9/11, ‘including toxic tort cases that might arise in the next few decades.
At the 20th Anniversary of the 9/11 attacks in 2021, then Representative Carolyn Maloney and Representative Jerrold Nadler wrote to then Mayor de Blasio , calling upon him to open the City’s files. Release of the documents would help provide injured and ill 9/11 responders, survivors, and their families a better understanding of the Giuliani administration’s knowledge of the likely scope of the coming health crisis and when it obtained this knowledge.
The Representatives asked Mayor de Blasio to conduct an independent review of the City’s secret 9/11 archive. Such a review, by the City Department of Investigation, would advance full disclosure of the information the Giuliani administration had. As the Representatives described,
Twenty years later a full review remains essential, and we believe that only a review by the City Department of Investigation of all the relevant files will allow injured and ill 9/11 responders, survivors and their families to have confidence in the results.
Mayor de Blasio never responded to the Congress members’ request.
In May 2022, the Representatives renewed their efforts, sending a letter to newly elected Mayor Eric Adams, himself a 9/11 responder, asking the new Mayor to release the City’s 9/11 files.
Mayor Adams responded with a July 6th 2022 letter to the Members of Congress:
My administration is deeply committed to ensuring that the responders, survivors, and their families are supported. As Chair of the House Oversight Committee and Chair of the House Judiciary Committee, Congresswoman Maloney and Congressman Nadler continue to lead advocacy on highlighting the emerging needs of responders, survivors and their families for the City of New York. To that end, I would like to invite your offices to a meeting with my team, so we can determine the best path forward. We sincerely appreciate your concerns and your interest in the continued support of New Yorkers and those affected by the 9/11 attacks. I look forward to ongoing collaboration.
When the meeting took place, however, City lawyers advised that no 9/11 information would be released unless the Representatives changed federal law, conferring the city with full immunity from any wrongdoing the archives revealed.
On February 16, 2023, Reps. Jerrold Nadler and recently elected Representative Dan Goldman wrote a new letter to Mayor Adams. As before, the Representatives urged Mayor Adams to exercise his authority, overrule the City Law Department, and reveal the Giuliani administration’s actual knowledge of the toxic release.
Here is an excerpt of their letter:
We are writing to you again to renew the request that the City of New York finally, after more than 20 years, fully disclose what the Giuliani Administration knew about the harmful impacts of the toxins released in the 9/11 attacks, the subsequent cleanup, and when it knew this information.
This letter is to follow up on letters sent to then-Mayor de Blasio on September 20, 2021, and to you on May 12, 2022, asking the City to finally open its files on the aftermath of the attacks—and help provide injured and ill 9/11 responders, survivors, and their families a better understanding of the origins of what they have faced…
On March 22, 2023, Mayor Adams responded, denying their request.
Here is Mayor Adams’ response to this year’s request, again refusing to release the records.
911 Health Watch Freedom of Information Law Request
The files we requested, locked away by the City’s Law Department, are of great public interest, and are afforded no legal protection from disclosure. We seek answers to long-held questions about the City’s advance preparation for a terrorist attack, including the modeling of toxic releases from a major building collapse, and the City’s knowledge of actual air quality in the period of time it assured the public that the air was safe.
As we said last September, if the City refuses to disclose these materials immediately, we will seek Court intervention.
Under FOIL, the City’s “records are presumptively open to public inspection, without regard to need or purpose of the applicant.” Beechwood Restorative Care Ctr. v. Signor, 5 N.Y.3d 435, 440–41, 842 N.E.2d 466, 469 (2005)
The City’s objections, raised to Representatives Nadler and Goldman, are without legal basis.
The City argued against the disclosure, citing other “public data” concerning 9/11 toxins, exposures and illnesses. (Mayor Adams’ March 22, 2023, letter to Reps. Nadler and Goldman). That other data, concerning 9/11 toxins and exposure risks has long been available to the public concerning 9/11 toxins, exposures and consequent illnesses, information detailed in the Mayor’s letter, is not a basis to deny the requests.
New York Courts have long held that “all government records are presumptively open for public inspection unless specifically exempted from disclosure as provided in the Public Officers Law Sec. 87(2).” Fappiano v. New York City Police Dep’t, 95 N.Y.2d 738, 746, 747 N.E.2d 1286, 1289 (2001)
To date, the City has cited no specific exemption enabling it to withhold the documents.
Further, that the release of documents poses “litigation risks,” a concern of Mayor Adams raised in his March 22nd letter, is no basis to deny a FOIL request. The City seeks “federal legislation” to make disclosure “economically and legally feasible,” guaranteeing additional protections from lawsuits. (March 22, 2023, letter)
Mayor Adams’ statement as to the litigation risks posed by release of the documents is an admission against the interests of the City and would bind the City in any future litigation.
That the City may incur expenses in complying with the request is also not a basis for denial.
Finally, although FOIL exempts from disclosure communications between government agencies, such exemption does not apply to “instructions to staff that affect the public” and “final agency policy or determinations.” All the materials sought concern matters affecting the public. Public Officers Law § 87 [2][g]. The coalition also challenges the City’s determination, articulated in the days following September 11th, that environmental quality allowed the safe reopening of public schools, financial markets and businesses, as well the return of thousands of lower Manhattan residents to their apartments.
The City’s objection to the public release of the 9/11 archive stems from fear of liability claims that presumably would be substantiated by the archive’s contents. This self-concern stands in stark contrast to the example of thousands, who served the public bravely and without hesitation, in the hours, days, and weeks after the attacks—raising no objection and seeking no financial benefit, along with the residents whose resilience in the face of terror and destruction and whose commitment to rebuilding was fundamental to the City’s recovery. Twenty-two years later, the City should honor their service, and the truth, by making full disclosure.
Article 78 Court Filing
On June 20, 2024, 911 Health Watch Inc. filed an “Article 78” appeal in New York State Supreme Court in response to the Freedom of Information Law denial by the New York City Department of Environmental Protection (DEP) and the New York City Office of Emergency Management (OEM). We requested any documents pertaining to the response to the September 11, 2001, attacks, toxins at Ground Zero, and the impact upon the health of responders and survivors; they claim that none exist.
The City of New York’s Department of Environmental Protection and the Office of Emergency Management should not be able to state that they have none of the records we are seeking, while at the same time the Mayor’s office is telling Congressional Representatives that they will release the documents but only after the Federal Government provides even greater liability protection for the City of New York. They can’t argue that they don’t have records, but they will hand over the records if Congress gives them more protection.
You can read all the documents submitted to the Court here.
Benjamin Chevat, Executive Director of 911 Health Watch Inc, stated:
“The City can’t have it both ways, they can’t tell us they don’t have the records we are seeking that tell us what the City knew about the impact of the toxins on the health of responders and survivors and when did they know it, while at the same time tell Congress that they will turn over the records if they get more liability protections. The Freedom of Information law doesn’t work that way.”
You can find more information on this issue on the 911 Health Watch web page here.