Two employees from the city’s Department of Environmental Protection will be forced to explain why they said the agency had no documents related to its well-established role in investigating air quality in Lower Manhattan after the Sept. 11 terrorist attacks, according to a decision NY1 obtained from New York Supreme Court Justice James Clynes.
After the lawyers seeking the records sued DEP, a city attorney said the agency, in fact, had 68 boxes of relevant files, amounting to hundreds of thousands of records.
What You Need To Know
- For more than a year, the Department of Environmental Protection claimed it had no documents about its air quality investigation in Lower Manhattan after 9/11
- DEP had a well-documented role responding to air quality concerns, according to public records and the agency’s own testimony
- After being sued in state court, DEP said it had 68 boxes of documents to turn over
- A state Supreme Court justice ruled the lawyers who sued to obtain the documents can depose two city employees about the initial denial
“The court finds that the February 29, 2024 appeal denial by DEP was arbitrary and capricious,” Clynes said in his order. “The reason for the denial lacked any individualized reasoning and were vague and conclusory.”
The justice’s decision to allow for depositions is extremely rare for this kind of lawsuit, according to Andy Carboy, the attorney seeking the records.
“Depositions? I can’t even cite a single example,” he said in an interview with NY1 on Friday. “It is extraordinary relief, but these are extraordinary circumstances.”
NY1 reached out to DEP for comment on the justice’s ruling Monday morning. The agency referred NY1 to the city’s Law Department.
“We are aware of the ruling,” a spokesperson said in an email Monday evening, referring NY1 to months-old comments from the city’s corporation counsel. “I have nothing more to add.”
It’s the latest update in the long quest by a couple attorneys to have city agencies hand over their records on the air quality investigations after the terrorist attacks. In this case, DEP’s story shifted from having zero records to hundreds of thousands.
But only after years of litigation.
The initial Freedom of Information Law filing occurred on Sept. 8, 2023. In it, there were 28 separate line items requests, including memos about potential liability; communications to reopen schools in Lower Manhattan; and environmental testing completed.
“Since September 11, DEP or its contractors analyzed 3,060 samples from 37 outdoor monitoring sites in Lower Manhattan; 500 samples collected adjacent to the four schools in the vicinity of the Trade Center; and 328 samples taken in the four boroughs of the city outside of Manhattan,” said Joe Miele, the head of the DEP, in a transcript of his testimony before a U.S. Senate subcommittee in 2002.
And about 15 years later, the agency also discussed its role in Lower Manhattan in a post on Medium.
“All New Yorkers relied on the work of DEP in the days, weeks and months following the September 11 attacks,” read part of the post by a DEP account. “The agency’s critical operations led efforts to maintain and repair our in-city infrastructure, clean the homes and offices of downtown tenants, and protect our air and water supply from future threats.”
And yet, on Jan. 31, 2024 — more than three months after the request for documents such as the ones Miele described was sent — DEP sent an email to Carboy, who asked for the files. There were no records.
“This agency does not have the records requested. You should direct your request to a different agency,” the email from the city agency stated in part.
Carboy, working the case pro-bono on behalf of the nonprofit 9/11 Health Watch and families of people who have gotten sick after spending time in Lower Manhattan, appealed the decision a couple weeks later.
“DEP offers a boilerplate response, devoid of detail concerning any search, and lacking certification. The denial is improper and conclusory, violative of New York’s Public Officers Law,” Carboy wrote.
But in the end, Carboy’s appeal was rejected by DEP’s appeals officer, Russell Pecunies, on Feb. 29, 2024.
“In response to your appeal, I hereby certify that a diligent search was performed in DEP’s records in response to your FOIL request, and no responsive records were found,” Pecunies wrote.
He said Carboy had the option to file an Article 78 proceeding, which effectively means taking his case to the New York Supreme Court.
Carboy did that in June of 2024, with the plaintiff being Ben Chevat, the executive director of 9/11 Health Watch.
“The DEP failed to establish, with any precision or evidence, that a diligent search for the requested materials was actually performed,” Chevat argued in the June filing.
On Sept. 16, 2001, the New York City Department of Health sent out a press release about testing being done in the general vicinity by DEP and the U.S. Environmental Protection Agency.
“Based on the asbestos test results received thus far, the general public’s risk for any short- or long-term adverse health effects are very low,” it stated.
The next day, then-Mayor Rudy Giuliani announced parts of Lower Manhattan would reopen, including City Hall and the New York Stock Exchange, while noting a few square miles would remain closed.
“Now is the time for New Yorkers to show the world — and especially those who perpetrated these attacks — how resilient we are,” Giuliani said in the release less than a week after the terrorist attacks. “The City of New York and the United States of America will not be intimidated by terrorism. That’s why we are determined to return the City to normal as quickly as possible, wherever and whenever it is safe to do so.”
In the years since, more people have died from illnesses doctors have connected to exposure to toxins in Lower Manhattan than on the day of the terrorist attacks, according to the 9/11 Memorial and Museum. More than 70,000 people have received compensation for their illnesses from the federal September 11th Victims Compensation Fund, according to a report from 2025.
“Obtaining public records concerning New York City’s response to the Sept. 11 attacks is important to me for the following reasons, having worked for over 22 years to make sure that there was a proper response to the health impact of the toxins that covered Ground Zero, Lower Manhattan and western Brooklyn on the thousands of 9/11 responders and survivors, many of whom now have 9/11 conditions, including cancer,” Chevat said. “I would like to know what then-Mayor Giuliani and the City of New York knew about the threat to the health of those exposed, and when did they know it.”
In response, a city lawyer called the document request filed on behalf of Chevat “a fishing expedition.”
“DEP satisfied its statutory obligation by not only performing a diligent search by reaching out to the various bureaus and staff responsible for being the custodian of records at the agency, but also certifying that they conducted a diligent search for the records requested,” wrote Saarah S. Dhinsa, an assistant corporation counsel for the city at the time.
The city requested the proceeding be dismissed.
“Compelling an additional search in this case, where DEP has repeatedly certified that it has no responsive records, will have no practical effect on the parties,” Dhinsa wrote.
And yet, more than 10 months after calling Chevat’s petition “moot,” Dhinsa wrote to Clynes with a total about-face.
“Respondent has located multiple boxes that are believed to contain at least some responsive records,” Dhinsa said.
Since November 2025, DEP has repeatedly declined to speak on the record or to respond to NY1’s questions about how the change could occur.
Now, Clynes is allowing Carboy to depose Pecunies, along with another unnamed DEP employee who conducted the search, Carboy explained to NY1 last week.
Those depositions are expected to occur in early July, according to Carboy.
The focus, according to Carboy: Why, from January 2024 to November 2025, DEP claimed it had no documents, only to turn over hundreds of thousands of them.
In the end, DEP supplied 68 boxes. Many involved air and dust samples taken, along with requests from the city to building owners to provide the agency with any test results they had conducted as late as February 2002, months after Lower Manhattan had been reopened.
Another undated document supplied to Carboy and Chevat was signed by an employee in the city’s Law Department when Michael Cardozo was corporation counsel, a position he held from 2002 to 2013.
“These original World Trade Center documents have been collected and scanned by the New York City Law Department. DO NOT DISPOSE OF THESE DOCUMENTS: they must be preserved to serve as evidence in the event future WTC-related legal actions are brought against the City,” the undated memo states. “If you would like to dispose of any of these documents, contact me directly at the New York City Law Department.”
In the same 2023 Freedom of Information Law inquiry sent to DEP, Carboy made identical requests for six other agencies, including the mayor’s office and the Law Department.
“The Law Department’s records are not maintained in a manner that allows it to search for records responsive to the request,” said Jeffrey Lowell, the records appeals officer in this case, in February 2026.
“To scan the entire archive without making it accessible, without preserving it? Was this just an exercise?” Carboy said to NY1 in an interview in March. “Okay, let’s scan it. Let’s not make an index. Let’s not make them searchable and just close the doors and walk away. I don’t buy that for one moment.”
A Law Department spokesman sent NY1 the comment made at a City Council hearing this spring by Mayor Zohran Mamdani’s corporation counsel, Steve Banks.
“Since I was confirmed a couple weeks ago, we have set up a team that is reviewing what documents can be posted on a portal to provide access to the public and the cost for maintaining such access and what documents cannot be posted,” Banks said at the time. “We’re working on this very hard to be able to, as I said, post documents to be available to the public.”
However, that does not explain why the Law Department denied Carboy’s document request outright, instead of sending the relevant files as it sifts through the files that Banks said in his testimony will be posted to the public eventually.
That spokesperson did not respond to NY1’s questions to explain.
Meanwhile, after requesting 10 extensions to reply to Carboy’s Freedom of Information Law request, the mayor’s office also said in February that it had no records Carboy asked for.
“After conducting diligent searches, they have not identified any records responsive to your request under [Freedom of Information Law],” Lowell said.
The appeal filed by Carboy was denied, also by Lowell.
“The Mayor’s Office searched all available records in the Enterprise Vault (EV) database (over 7,200 email accounts) and searched for physical records in possession of the Mayor’s Office at a storage facility on White Street,” Lowell wrote in a March 20 letter. “The EV database holds records dating back to 2002 with occasional records from prior years if the email account was active prior to 2002 and stayed active in 2002.”
But Carboy was able to get one of the records he had been seeking. Just not from City Hall.
The archive for famed journalist Wayne Barrett had a copy of a memo that laid out potential liability the city could face in the wake of the attacks.
The letter, sent to Bob Harding, a deputy mayor under Giuliani until the end of 2001, outlined that there could be as many as 35,000 claims filed against the city for a range of issues, including being allowed back into Lower Manhattan before it was safe.
The memo did not say the city knowingly did that, but the two-page document lists it as a possible reason for litigation.
Carboy said he got that document for $20 in a matter of weeks, instead of the nearly three-year wait for the mayor’s office to respond it had nothing.
After reporting the mayor’s office’s denial in March, NY1 reached out to Mamdani’s office multiple times with detailed questions to explain the rejection. A spokesperson declined to answer.
Carboy’s client, Ben Chevat, is the plaintiff in another lawsuit in the state Supreme Court, filed against the mayor’s office. The reason: for its claim it has no records, despite the fact that he has a copy of the memo sent to Harding – the first line item requested in the initial lawsuit.
Carboy said the deadline for the mayor’s office to respond to their lawsuit is in a couple weeks, after being granted an extension in May.
