There is a question that has been asked by 9/11 responders, survivors, and their families for nearly a quarter century. What did the city know about the air in Lower Manhattan after the towers fell, and when did it know it. A New York Supreme Court justice has now ordered the city to answer parts of that question under oath.
On May 28, 2026, Justice James G. Clynes of the New York Supreme Court ruled that the New York City Department of Environmental Protection acted “arbitrarily and capriciously” in denying a Freedom of Information Law request for the agency’s records on its post-September 11 air quality work. The court ordered two DEP employees, including the records appeals officer who denied the request in 2024, to appear for live depositions in early July 2026. Depositions are extraordinarily rare in a FOIL case. The court found them “material and necessary” because of what the city did and did not say over the past three years.
What DEP First Said
The request that led to this ruling was filed on September 8, 2023 by the nonprofit 9/11 Health Watch, joined by family members of deceased responders and Lower Manhattan residents. The request asked for the agency’s records concerning its response to the World Trade Center collapse, including air and dust sampling, internal communications about reopening schools and offices, and risk assessments performed in the weeks and months after the attacks.
DEP’s role in that response is not a matter of speculation. In testimony before a United States Senate subcommittee in 2002, the agency’s then-commissioner described analyzing more than three thousand samples from outdoor monitoring sites in Lower Manhattan, hundreds of additional samples taken near schools in the vicinity of the Trade Center site, and hundreds more from the surrounding boroughs. DEP has discussed its role publicly on its own platforms in the years since.
Despite all of that, in January 2024 DEP responded to the records request with one sentence. The agency did not have the records. The request should be directed elsewhere. The appeal was denied a few weeks later, with a certification that a “diligent search” had been performed and turned up nothing.
How That Changed
After 9/11 Health Watch filed an Article 78 proceeding in New York Supreme Court in June 2024, the city moved to dismiss the case as a “fishing expedition.” Then, in September 2025, the city reversed itself in a court filing and acknowledged it had located multiple boxes of relevant records. By November 2025, the agency had produced 24 boxes for review. It has since indicated that at least 68 boxes exist, holding an estimated 340,000 pages of material.
Among the documents already produced is a 2002 directive from the City Law Department’s World Trade Center Unit to the DEP. The directive instructs the agency in plain language to preserve all September 11 records as potential evidence in future litigation against the city. The instruction is not ambiguous, and DEP was the recipient.
In other words, the same agency that told a court for more than a year that no responsive records existed had been holding records the city’s own lawyers had ordered it to keep. That is the conduct the court has now ordered DEP officials to explain under oath.
The Harding Memo
The court ruling is the latest in a longer story. In February 2026, 9/11 Health Watch announced it had finally obtained a document that had been the subject of public reporting since 2007 but had never been released by the city. The document, an October 2001 memo to then Deputy Mayor Robert Harding, projected that the city could face thousands of liability claims from toxic exposure injuries arising out of the attacks. Public estimates in the New York Times and elsewhere had placed the projection at as many as 10,000 claims. The actual memo, recently produced in court filings, contains a similar warning.
The memo was not located in city files. It was found in the personal archive of the late investigative journalist Wayne Barrett, whose papers were donated after his death to a research library at the University of Texas at Austin. Barrett had obtained the memo before publishing a book on the Giuliani administration’s 9/11 response in 2006. The city, despite three years of requests, had repeatedly stated that no such document could be located.
The significance of the memo is the gap between what the city said publicly in the fall of 2001 and what its lawyers were apparently calculating in private. Publicly, the EPA’s Christine Todd Whitman declared the air safe to breathe. The city echoed that position. Lower Manhattan reopened. People went back to work, back to school, back to their apartments. Privately, according to the memo, the city’s lawyers were already projecting liability in the thousands of cases.
What I Have Seen
I have spent more than thirteen years representing 9/11 responders, survivors, and their families. In that time I have come to understand something about this case that anyone in my position would: the reason it matters whether the city knew is not abstract. It is not about history. It is about the people who breathed that air because they were told it was safe to breathe.
The clients I represent include FDNY and NYPD members, construction and demolition workers, Sanitation Department workers, volunteers from across the country, residents who never left Lower Manhattan, students who went back to school in the exposure zone, office workers who returned to their desks within days, and the surviving families of people who made those same decisions and did not live to file a claim of their own. Most of them made the choice they made because the people in charge said it was the right choice to make. They were told the air was safe. They were told it was safe to go home. They were told it was safe to send their children back to class.
If it turns out the city knew otherwise, that is not a footnote. That is the answer to a question my clients have been asking for half their adult lives. The court’s order requiring depositions does not by itself produce that answer. But it is the first time anyone with the authority to ask the question has required city officials to answer it under oath.
What This Does Not Change
For the people who got sick, the legal programs that compensate and care for them continue to operate on their own terms. Eligibility for the September 11th Victim Compensation Fund and the World Trade Center Health Program does not depend on resolving the question of what the city knew. It depends on whether the claimant was present in an eligible exposure area during the eligible time period, and whether they have a certified condition or have lost a loved one to one.
What this litigation may eventually change is the broader public record. It may change the conversation about whether the people who returned to Lower Manhattan in 2001 and 2002 were given accurate information about the risks they were assuming. It may also affect a separate set of civil cases unrelated to the federal programs, in which plaintiffs have sought to hold the city accountable for representations made about air quality. Those cases are not the work of this firm. The Victim Compensation Fund and the Health Program are.
There is one important caveat worth understanding. By federal law, submitting a claim to the September 11th Victim Compensation Fund waives the claimant's right to file or be a party to any civil action for damages sustained as a result of the September 11 attacks or arising from or related to debris removal. The waiver attaches when the claim is submitted, not when an award is paid, and it reaches civil actions based on any condition on the WTC Health Program list of covered conditions — even conditions that were not part of the VCF claim. That means a claimant who has filed with the VCF cannot also pursue a civil case against the City of New York or any other non-terrorist defendant for injuries connected to 9/11 site presence, toxic exposure, or debris removal, even if the documents now coming out of DEP would otherwise support such a case. The statute carves out only two exceptions: civil actions to recover collateral source obligations, and civil actions against knowing participants in the hijacking conspiracy or a terrorist act (the JASTA cases against state sponsors of terrorism). Neither exception would permit a tort suit against the City.
For the overwhelming majority of the people we represent, the VCF remains the preferred path. It is non-adversarial, it does not require proving fault, it covers a wide range of conditions, and it is open until 2090. But it is not compatible with parallel civil litigation, and anyone weighing both options should understand that before filing either.
If you were in Lower Manhattan, at the Pentagon, or at Shanksville on or after September 11, 2001, you may be eligible for benefits and compensation, regardless of how the city’s document fight is ultimately resolved. The deadlines and the eligibility criteria are set by federal law and federal program rules. They do not depend on what the city did or did not say.
If you have questions about whether you qualify, our office offers a free claim review. You can reach us at 911claimcenter.com or by phone at (212) 680-4000.
You were there. We’ll be here.
