Decades Later, the Battle to Disclose Secret Knowledge of September 11 Health Risks Grinds On
Despite the recent discovery in a Texas university archive of a decades-old memo in which City officials anticipated health-related lawsuits arising from the terrorist attacks of September 11, 2001 (even as they urged displaced residents to return to Lower Manhattan), lawyers for the City have once again represented that they have no documents that could shed light on questions about “what then-Mayor Giuliani and the City of New York knew about environmental conditions in Lower Manhattan, while assuring the public that the air was ‘safe and acceptable’ to breathe,” in the phrasing of a Freedom of Information Law (FOIL) request by plaintiffs seeking disclosure of official records.
In announcing their position, lawyers for the City said, “the Law Department’s records are not maintained in a manner that allows it to search for records responsive to the request. With regard to the Mayor’s Office and the [Department of Design and Construction], after conducting diligent searches, they have not identified any records responsive to your request under FOIL.”
This has prompted Ben Chevat, the executive director of the nonprofit organization 911 Health Watch to file suit in New York State Supreme Court, asking that a judge compel the City to disclose records that he believes exist, but the City denies it possesses.
This lawsuit, filed on March 29, is the latest round in a battle that has been waged since 2023, with 911 Health Watch’s demands for documents repeatedly hitting what appeared to be a brick wall, as the City claimed that no such records can be found. This claim was undercut and the search for relevant files given new urgency in February, when 911 Health Watch’s attorneys discovered in archive in the University of Texas at Austin the so-called “Harding Memo,” an October 2001 document in which a City lobbyist warned then-Deputy Mayor for Economic Development Robert Harding, “according to the Law Department, there are approximately 35,000 potential plaintiffs as a result of the events of September 11 and it is estimate[d] that 10,000 would file a claim. A major concern is that if these cases make it to court, the judges and juries will be biased in favor of plaintiffs (even though the City seems to have a strong defense) and therefore award substantial damages to compensate individuals for their loss.” The memo went on to anticipate “direct effect” lawsuits, arising from “public safety officers directing individuals who relied (to their detriment) on the direction.” Further grounds for litigation, the author predicted, could arise from, “health advisories [that] caused individuals… to return to the area too soon (causing toxic exposure or emotional harm),” while anticipating a wave of, “toxic tort cases that might arise in the next few decades.”
Even after 911 Health Watch disclosed the contents of the Harding Memo on February 5, the City continued to insist that no records could be found. On March 20, the City’s Records Access Officer wrote that a search of municipal records not only failed to turn up the Harding Memo, but also could not find any trace of an email account for Deputy Mayor Harding.
Mr. Chevat and lawyers representing 911 Health Watch then asked for the name of the staff members who had overseen the records search, as well as information about where, when, and how it was conducted. On March 11, the City Law Department notified the petitioners that it had “closed your FOIL request for the following reasons: The Mayor’s Office will be responding to this request on behalf of the New York City Law Department.”
On March 7, 911 Health Watch filed an administrative appeal, arguing, “the City’s response is devoid of credibility,” and asking why “petitioners and their volunteer legal team [were] able to find such documents, outside of City archives, while official records custodians cannot locate them inside City Hall or the Law Department? The official ‘response’ results from a cursory online search, reminiscent of one done in a junior high school civics class.”
They also raised a related case in point, arising from a parallel FOIL request and records search, recalling, “the City Department of Environmental Protection (‘DEP’) made an identical and equally baseless assertion during its initial responses to our FOIL request. The outcome is instructive. After fighting us and denying the existence of any September 11th-related records for two years, rejecting our FOIL administrative appeal, and moving to dismiss our [court] proceeding, the DEP now admits it has at least 68 boxes worth, some 340,000 pages. We now seek sworn testimony from decision makers responsible for DEP’s baseless obstruction, along with attorneys’ fees and costs. We will take the same course with respect to the response of the Mayor’s Office and Law Department.”
On March 20, Jeffrey Lowell, the City’s Records Appeals Officer, replied by citing a 30-year-old court decision and arguing, “the statute does not specify the manner in which an agency must certify that documents cannot be located. Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required. Here, the Department satisfied the certification requirement by averring that all responsive documents had been disclosed and that it had conducted a diligent search for the documents it could not locate.”
Mr. Chevat and 911 Health Watch filed suit a few days later, asking, “how many illnesses could have been prevented had the City shared what it actually knew? Obviously, this is a matter of great importance…. Government denial of any causal relationship between air conditions in Lower Manhattan, following the September 11th attacks, and the surge of respiratory and cancer diagnoses impedes funding for medical care, treatment and research. We seek full disclosure of the City’s September11th archive, now, and hope that it contains information that will garner additional support for programs such as the World Trade Center Health Program.”
In their court filings, the 911 Health Watch team recalled an incident from 2022, in which members of New York’s Congressional delegation pressed then-Mayor Eric Adams to release the City’s archive of documents related to September 11. “In response to the efforts… to obtain these same records, starting in 2021, the Mayor’s Office sought a quid pro quo. Having identified relevant materials, the City asked for immunity, other legal protections, and ‘economic’ support for the release of September 11th public records,” they noted.
Mr. Chevat said, “Mayor Mamdani can still be the Mayor who, after 25 years, answers the question: what did the City know about the hazards caused by the toxic chemicals at Ground Zero, and when did it know it?”
Attorney Andrew Carboy, part of the 911 Health Watch legal term that serves without pay, said, “with its ever-changing replies, the City plays three-card monte with September 11th records. It is like the administration is making first responders and survivors ‘marks,’ moving the ball as career City officials seek to deprive them of the answers they deserve. After two and a half years of delays, the City advises there are no records. Then, the City tells us there are records, but that they are not organized to be searched. From our DEP lawsuit, we know the Law Department collected and scanned all World Trade Center-related documents from City agencies.”