911 Health Watch Inc. and Families of 9/11 Responders and Survivors File Freedom of Information Request Seeking the Records as to What the Administration of then New York City Mayor Giuliani Knew About the Toxins at Ground Zero
911 Health Watch Inc. announced today its filing of a Freedom of Information Law (“FOIL”) request with the City of New York on behalf of a group of 911 responders and survivors’ families. The FOIL request seeks records and documents as to the knowledge of Mayor Rudolph Giuliani’s administration concerning the likely health impact of toxins spewing from the World Trade Center site.
With the pro bono assistance of the Law Offices of Andrew J. Carboy LLC and Turken Heath & McCauley LLP, the FOIL request filed on behalf of Benjamin Chevat, Director of 9/11 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. seeks records, documents and reports, dating from the time period leading up to the attack, and through the months after the attack. The request also seeks recent reviews by the current administration of these same documents.
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) along with:
Underlying documents, studies, reports, assessments, memoranda, factual bases and other written information that informed the Harding memo’s estimate or projection of anticipated future claims from WTC toxic exposure. All documents setting forth the names and titles of recipients of the Harding memo in 2001 and 2002 among other documents outlined in the FOIL request.
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.
Robert Adams, director of environmental health and safety services at the Design and Construction Department, told the City Council’s environmental committee in early November that even unprotected ground zero workers would not experience long-term health risks. In an interview last week, Mr. Adams, now working for a consulting firm in Princeton, N.J., said that he still believed that based on the information available at the time, the right decisions were made.
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.
Today’s Freedom of Information Law Request
The files we request, today, 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.
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 [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.
Benjamin Chevat, Executive Director of 911 Health Watch Inc, stated:
On behalf of families of 9/11 responders and survivors who have died from their exposure to the toxins at Ground Zero. We’re just asking for the kind of transparency we know that Mayor Adams himself would call for in environmental disasters like the Flint water crisis, the Ohio toxic train derailment or the Maui Fire.
22 years is too long to not know the truth.
We just want to finally know, What did Mayor Giuliani and his administration know about the impact of the World Trade Center contamination that covered lower Manhattan and western Brooklyn, and when did they know it? And:
Why is the City of New York refusing to release this Giuliani-era information, contained in public documents, 22 years after the 9/11 attacks?
Andrew Carboy of the Law Offices of Andrew Carboy said:
After twenty-two years, the City must release its secret 9/11 archive. These materials are not secrets at all, but are public records, reviewable by all New Yorkers under the Freedom of Information Law.
The public documents may begin to explain the gap between the City’s 2001 pronouncements that environmental conditions were safe in lower Manhattan and the contrasting reality of sickness resulting from World Trade Center toxic exposure. Today, as New Yorkers contend with the legacy of September 11th illnesses, the City would do well to honor their service, trust and sacrifice by sharing these truths with them.
That the archive may reveal shocking or ugly details of the official response is no defense to its disclosure under the Freedom of Information Law. The City’s stated concern about future litigation stemming from any release is misplaced. The City is amply protected by federal law, limiting its 9/11 liabilities, as well as by billions of dollars in federal compensation earmarked for 9/11 victims, over the next seven decades, in exchange for their release of all legal claims against it, measures the City lobbied Congress for. To date, 90,000 individuals affected by World Trade exposure have already released the City. The City also retains hundreds of millions in federal grants it received in 2004 to defend against 9/11 claims that are no longer being filed.
Mathew McCauley of Turken Heath & McCauley LLP said:
As we approach the 22nd anniversary of the devastating attack on our Nation which, in part, was an attack on our democracy and the freedom we are afforded, we call upon Mayor Adams, a 9/11 First Responder himself, to show his support for the same democracy and freedom and release the information sought here. For many responders and survivors that have already developed illnesses or passed away, this information may provide answers and closure for their families. For the thousands of others who were exposed to the toxic debris who have questions about their future health, this information may provide them with a better knowledge base to address their potential needs and care. Moreover, as we continue to seek additional funding for the World Trade Center Health Program to cover increasing illnesses, approval of new conditions and cutting-edge treatments, this information may provide support in both the medical community as well as what is needed in legislative remedies. The information sought is not a “fishing expedition” for litigation purposes, rather it is information that represents “transparency” and relevant to the health of every person that was exposed to the toxic debris. In 2019, Jon Stewart closed his Congressional Testimony with the following statement, “They did their jobs … do yours.” We ask that Mayor Adams release the information to show his support for the thousands or responders and civilians who did their jobs and proved to the world that we would never cower to an act of terrorism and did so in while exposed to an environmentally toxic environment.
Congressmen Jerrold Nadler and Dan Goldman together stated:
Over 6 months have passed since we called on the Adams administration to release what the Giuliani administration knew about the toxins at Ground Zero while they were claiming it was safe for New Yorkers to return,” said Representatives Nadler and Goldman. “We remain unsatisfied with the City’s failure to make these documents available, which are essential to advancing medical research for those suffering with 9/11 related illnesses. Our 9/11 families can’t wait any longer. As we approach yet another year since that horrific day, we must deliver the truth for our survivors who need answers.
Jim Slevin, International Association of Fire Fighters (IAFF) 1st District Vice President, 9/11 Responder and member 911 Health Watch Inc. Board of Directors stated:
The time has long passed for the administration to live up to their moral responsibility to release the documents and information in our FOIL request. 9/11 survivors and their families have a right to know what was in the air so that they take the proper medical screening tests as well as seek out the best possible treatment for their WTC ailments. This administration can correct the mistakes of the past and release that information.
Speaking of about her FOIL request, Karen Klingon explained:
It has been 22 years since the World Trade Center fell, but just three years since I lost my brother Robert to the aftereffects of the dust and debris he was exposed to as a downtown resident on and after September 11th, 2001. Rob had a finely tuned sense of fairness, and he would be mystified, as well as furious, to learn that his city, New York–where he was born and raised–is withholding information, and a large sum of money, critical to the care of the people who, like him, have fallen ill from toxic exposure, or who will fall ill in the future. I’m doing what my brother would have done if he were alive today: demanding fairness and transparency from the city. After all, transparency should be the norm.
Phil Alvarez, brother of NYPD Det. Luis (Lou) Alvarez statement on the FOIL request:
My brother Lou, although he knew he was dying, chose to spend the little time and strength he had left to advocate for his brother and sister 9/11 First Responders and Survivors by going to Washington D.C.
He knew very well that there would continue to be sickness and deaths attributed to that dark day in our history.
Today we are asking the city and leaders that honored his last act of unselfishness, by joining his mission to take care of our heroes. He was presented many awards posthumously by the City of New York including the Keys to the City, the Bronze Medal, and many more from his beloved Police Department of the City of New York.
Mayor Adams, three years ago as the Brooklyn Borough President, you honored my brother on the first 9/11 remembrance after his death by presenting me and our family with a wonderful Proclamation on behalf of the residents of Brooklyn. You were the only Borough President in New York City to honor him in this manner and the Alvarez family will be forever grateful for that act. You know what it is to take that badge off of your chest for the last time after having served and protected this great city. The last time Lou took his badge off he sent it as a message to our politicians in D.C. to do the right and honorable thing for those that he knew would continue to die. They came together and did just that and passed the Permanent Authorization of a Bill that has had great impact for thousands. I’m asking you to honor him and the so many heroes including yourself who brought this city and country off its knees on 9/11/01 and the many days after one more time, by causing the release of information that will allow us to study the science and save the lives of the many who will follow in the unfortunate path of sickness and death caused by the toxins released on 9/11. Lou wouldn’t have it any other way. Please do the right thing.
Statement of Charlotte Berwind, widow of behalf of Volunteer Firefighter Charles “Chuck” Flickinger:
Chuck was born with the US Marine Corps flowing through his veins. It was in him to respond to difficult and dangerous situations not only during his 6 year stint in the USMC but later as a nurse in emergency rooms, bringing his strength to those suffering, afraid and those left behind. As a firefighter and EMT, it led him into burning buildings, burning cars with no thought of his own safety. He never turned away from those in need of help or protection.
On 9/11 no force would have held Chuck back from responding to the tragedy. Chuck trusted the leaders who told him it was safe so he did not question why thousands of his fellow brothers and sisters rushed in to respond to this tragedy. Through his cancer and brutal treatments he never regretted his service at Ground Zero nor thought it made him better than anyone else. That’s just who these selfless individuals are.
Chuck would, however, question why valuable information is being withheld more than 20 years later. He would press for its release, not for “blame” or “gain” but to help him lead his fellows and say, “We now have the facts to move forward and better serve those in need, those of us still at risk.”
I lost my Chuck on New Years Day 2017, 8 ½ months after diagnosis. My job, as his still grieving widow, is to take his legacy of serving others, even on a difficult path such as this. Mayor Adams, I implore you to release the information that will bring his community of responders some closure. Mayor Adams, YOU will be saving lives.
Kimberly Flynn, 9/11 Environmental Action
In the days and months after 9/11, we witnessed a stunning abdication of the City’s responsibility to protect the health of its people and those who came to the rescue. The City failed to establish a proper health and safety regime to protect responders laboring on the pile and the landfill. Instead, Instead, Mayor Giuliani and his administration engaged in an aggressive extended campaign to lie, hide information, and censor journalists like Juan Gonzalez (New York Daily News) who were uncovering the truth. City agencies issued dangerous guidance to residents, workers and business owners – telling them to grab a wet rag to clean hazardous dust from their indoor spaces, and telling parents and pregnant women that there was no reason for concern about harm to children from daily exposures to toxic smoke and dust.
The City’s recklessness was breathtaking — and responders and survivors continue to pay the price. Even 22 years later, we New Yorkers don’t know the half of it. Today, again, we demand a full accounting. And all of us need to know the hidden history of the City’s failed response so that we have a prayer of preventing a repeat in a future disaster.
Background on issue can be found on 911 Health Watch Inc. website here.
Description of Freedom of Information Requesters
Karen Klingon on Behalf of Robert Klingon represented by the Law Offices of Andrew J. Carboy LLC
On August 2, 2020, Robert Klingon died of glioblastoma, an aggressive, malignant brain tumor. Robert was a longtime downtown resident, and a lawyer. His apartment was blanketed with World Trade Center dust. After a brief period away from lower Manhattan, he returned in late September 2001, remaining there for the duration of the fires, recovery efforts and debris removal.
After graduation from Amherst College in 1981 and the University of California (Berkeley) School of Law in 1987, Robert served as a judicial law clerk for the United States Court of Appeals for the Ninth Circuit. He worked at Jones Day Reavis & Pogue, as an associate attorney, later worked for the Natural Resources Defense Council, and at the United States Court of International Trade. He then established his own firm to concentrate in environmental issues and international trade law. His sister, Karen Klingon, is the representative of his estate. Ms. Klingon also lived in Manhattan on and after September 11th. A professor of illustration and drawing at the University of Massachusetts Dartmouth for eighteen years, she also taught at Parsons School of Design in New York and at the Rhode Island School of Design.
Yvonne Baisley on behalf of the Estate of Robert Fitzgibbon represented by the Law Offices of Andrew J. Carboy LLC
Born in 1958, Robert Fitzgibbon joined the FDNY in 1990, after a career as a carpenter. He served for over twenty years with Engine Companies 97 (Bronx) and 47 (Manhattan). He responded to the World Trade Center collapses within hours, and remained on site until early the following morning. He returned at 6:30 a.m., working eighteen hours more. His work in the rescue and recovery spanned the rest of 2001 and extended into 2002.
He would struggle with World Trade Center-related illnesses for the rest of his life. In 2018, doctors diagnosed Robert with invasive cancer of the tongue and neck. He underwent aggressive radiation therapy, causing debilitating and painful complications, interfering with eating and daily life. He succumbed to his illness on August 14, 2019. Yvonne Baisley was his partner at the time of his death.
As the executor of his estate, she seeks the release of these important public documents in tribute to Robert and the other first responders who selflessly gave so much to the public, without hesitation or objection, at the World Trade Center Site.
Phil Alvarez on behalf of his brother Detective Luis G Alvarez is represented by Turken Heath & McCauley LLP
Detective Alvarez, a military veteran, was a member of the New York City Police Department at the time of the September 11th attacks and worked many hours at Ground Zero to assist with rescue and recovery efforts. He developed Colon Cancer in 2016 and underwent more than 50 rounds of chemotherapy to fight the disease that attacked his body. In June 2019, Alvarez testified before the House Judiciary Committee along with Jon Stewart, Thomas Mohnal and others to support the reauthorization of the September 11th Victim Compensation Fund. Thereafter, while in hospice, he donated his detective shield to the cause so that it could be given to then Senate Majority Leader Mitch McConnell because he could not attend the meeting. Sadly, just a few days later, Detective Alvarez passed away from his 9/11 related illness on June 29, 2019. As a sign of respect to Detective Alvarez, once passed, the extension included his name in the title. Detective Alvarez left behind a wife, three children and an extensive family including his parents, brothers, sister and many other proud relatives. His brother Phil Alvarez is filing this FOIL on behalf of his brothers estate.
Charlotte Berwind on behalf of Volunteer Firefighter Charles “Chuck” Flickinger is represented by Turken Heath & McCauley LLP
Chuck Flickinger, a military veteran, was a true volunteer when he responded to Ground Zero on September 11th 2001 with the Kent Fire Department. In the hours after the attack Chuck drove to his local volunteer fire department and volunteered to deploy with them to Ground Zero. His military experience and size and strength made him an asset to the responding department, and he was immediately welcomed. Chuck deployed to the pile and worked on the rescue and recovery efforts. After coming home, he would officially become a volunteer firefighter and then went on to become a registered nurse, working in the emergency room of St Johns Hospital in Yonkers. In 2016 Chuck was diagnosed with Esophageal Cancer and underwent numerous rounds of treatment to fight the disease but unfortunately passed away on January 1, 2017. Chuck left behind a wife and numerous friends and family that remain proud of his selfless service.