Court Issues Ruling Against New York City in the Fight for Release of September 11th Archive
Justice Clynes Determines City Acted Arbitrarily and Capriciously, Violating State Public Records Laws
City Department of Environmental Protection Officials Ordered to Testify As to How They Overlooked 68 Boxes of September 11-Related Records and Represented Archived Documents Did Not Exist
May 31, 2026
FOR IMMEDIATE RELEASE
Contact:
Benjamin Chevat
911 Health Watch
646 477 1461
Ben.Chevat@911HealthWatch.org
Andrew Carboy
Law Offices of Andrew J. Carboy LLC
212 520 7565
acarboy@carboylaw.com
Matthew McCauley
Turken, Heath & McCauley, LLP.
914 363 6355
mmccauley@thmllp.com
On May 28, 2026, the Honorable James G. Clynes, Justice of the New York Supreme Court, ruled in favor of 911 Health Watch in its lawsuit, known as an Article 78 proceeding, concerning the failure of the Department of Environmental Protection (“DEP”) to respond to Freedom of Information Law requests.
The case is Chevat v. New York City Department of Environmental Conservation, Index Number 155678/2024.
The Court found that the City of New York acted “arbitrarily and capriciously” in denying public records requests made by 911 Health Watch concerning the September 11th attacks, the collapse of the World Trade Center and the release of thousands of tons of toxic dust and smoke. This finding means that the City DEP’s denials were irrational, contrary to established law and known facts.
This Court ruling is historic, the first legal decision to address the City’s failure to open its long-secret September 11th archive. The public is entitled to know what the City knew about the true state of environmental hazards in lower Manhattan and when it learned those facts, all the while assuring the public that air quality was “safe and acceptable.”
DEP served as lead agency for the City’s September 11th response, with responsibility to protect the public from airborne contaminants.
Over the past decade, New York’s Congressional delegation, City Council members and private citizens have sought the release of the September 11th archive, without success. Mayor de Blasio did not respond at all, and Mayor Adams’ administration advised Congress that the records would not be released without the quid pro quo of liability protections and financial assistance from the federal government, improper considerations under the Freedom of Information Law.
In the Court’s May 28, 2026, ruling (attached), Justice Clynes determined the “February 29, 2024 appeal denial by DEP was arbitrary and capricious. The reasons for the denial lacked any individualized reasoning and were vague and conclusory. The Petition is therefore granted.”
The Court also ordered two DEP decisionmakers to appear for questioning by 911 Health Watch attorneys on July 1st and July 8th. Justice Clynes found this testimony to be “material and necessary” given the conflicting history of denials and admissions. One of the witnesses is DEP’s chief public records access officer, who rejected our appeal back in 2024.
It is exceedingly rare for a court to permit live testimony in an Article 78 proceeding. It is even more exceptional for such testimony to be taken in a FOIL lawsuit. The decision is well-supported, given the conduct of City officials in fighting a simple request for what are supposed to be government records freely available to the public.
Said Benjamin Chevat, Executive Director, 911 Health Watch:
I have been saying since Mayor Mamdani was elected last year that he could be the Mayor who finally 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? But he can’t be that Mayor if his lawyer is defending the prior administration’s actions, and as Judge Clynes’ decision on our case makes clear those actions by the previous administration were wrong.
And he can’t be that Mayor if his staff closes our FOIL on his office.
For the thousands of 9/11 responders and survivors still dealing with the impact of the toxins at Ground Zero, Mayor Mamdani needs to speak on this issue and say publicly that his administration will release all the records relating to what the City of New York knew about the hazards at Ground Zero and reverse his office’s closing our FOIL. Mayor Mamdani needs to announce his support for the $3 million needed for the City Council’s DOI investigation to be completed, as that is the only way we will know exactly what the City knew and when it knew it.
Said Andrew Carboy, Pro Bono Attorney:
Mayor Mamdani and Corporation Counsel Steve Banks pledged to release the secret September 11th archive but have not done so. Speaker Menin, Counsel Member Brewer and the entire City Council support this disclosure. The public, the survivor community, recovery workers and first responders, too, seek the release. We welcome this important decision and will continue to seek answers and documents from City officials.
Said Matthew McCauley, Pro Bono Attorney:
As we approach the 25th anniversary of #NeverForget, it is unfortunate that it takes a court order to remind the City of New York of its moral and legal obligations when it comes to 9/11 related documents. As a 9/11 first responder and 9/11 advocate I do not consider this a victory, but rather a sad and stark reminder that all the previous administrations have acted in a manner that includes denying that the air was toxic, denying that 9/11 illnesses were legitimate and denying that 9/11 documents were being withheld. One by one, all those baseless and unsupported positions have collapsed. Rather than continuing to disrespect the 9/11 community and the memory of those who we have lost to 9/11 illnesses, Mayor Mamdani should have his attorneys stop with these ridiculous positions and turn over all the 9/11 documents still being withheld. He promised transparency in his administration and there would be no greater example of it than with these actions.
Background
On September 8, 2023, 911 Health Watch requested records from the DEP regarding the response of the City to the World Trade Center collapse, along with historical documents and disaster preparation materials. These public records concern risk assessments made by the City for the reopening of lower Manhattan in September 2001, and the City’s knowledge of airborne toxic hazards, existing at that time. We seek to understand why Mayor Giuliani requested liability protection from toxic exposure claims while the City repeatedly reassured the public that air quality remained “safe and acceptable” after the World Trade Center collapse.
For years, DEP denied these records existed, making these official denials under oath and through its lawyers. Through its pro bono attorneys, Andrew Carboy and Matthew McCauley, 911 Health Watch filed a court proceeding in June 2024, challenging DEP’s actions and obstruction.
The DEP finally admitted last September to possession of 68 boxes of responsive records, some 340,000 pages. These included a 2002 directive to DEP from the New York City Law Department to preserve all World Trade Center records after scanning them into a database. DEP knew, or should have known, that the requested documents not only existed but were stored electronically and catalogued.
As a result, 911 Health Watch requested testimony from DEP decision makers responsible for the obstruction, and representations that no documents existed. Why did these officials issue sworn denials, reject our appeal, and, aggressively, move to dismiss our case as a “baseless fishing expedition”? Why did DEP suddenly reverse course and admit to having the records all along? The integrity of this proceeding, government transparency and the viability of public records access laws are threatened by such misconduct. DEP, of course, fought our request, even as Mayor Mamdani and new Corporation Counsel, Steve Banks, pledge transparency and the release of the City’s September 11th archive.
At the same time, 911 Health Watch continues its 2026 FOIL lawsuit against the Mamdani Administration. After 2.5 years, the Mayor and Law Department have disclosed zero records, claiming a “diligent search” could not locate them. The Mayor’s Office denies having any records concerning the response of the Giuliani Administration to the World Trade Center Collapse.
Specifically, the Mayor’s Office claims that records dating from September, October, November and December 2001, the most relevant time period, are now missing: “The search yielded no responsive results…for the time period outlined in your request…records pre-dating 2002.”
Further the Office of the Mayor under Mayor Mandami’s administration, closed our FOIL on the Mayor’s office. The lawsuit against the Mamdani Administration is assigned to Justice Tisch, also of the Supreme Court of New York County (Index number 153916/2026) and we are waiting for the City’s response, which is due on June 15, 2026.
Documents
December 31, 2025, DOI Letter to Speaker Adams
May 28, 2026, Court Decision
NYS Court Docket 911 Health Watch Article 78 on DEP
NYS Court Docket 911 Health Watch Article 78 on Mayors Office
For more information go to our website here:
911 Health Watch Website on Effort to Get New York City to Release 9/11 Documents
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