A New York City Department of Environmental Protection (DEP) official testified under oath that he denied a Freedom of Information Law (FOIL) appeal regarding 9/11 toxin data based solely on the instructions of a city attorney. Russell Pecunies, a records appeal officer, admitted during a July 1 court-ordered deposition that he did not independently verify whether the agency had conducted a diligent search for the requested documents before issuing his denial.
Testimony on Document Denial and Legal Oversight
During the deposition, Andrew Carboy, an attorney representing 9/11 Health Watch, questioned Pecunies about his process for handling the appeal. Pecunies confirmed he had not interviewed the individuals responsible for searching the agency’s records to ensure the search was thorough. When asked if he had adopted the legal conclusion provided by an attorney, Pecunies acknowledged that the denial was based on “advice of counsel.”
Pecunies further identified Musa Ali, one of the attorneys present at the deposition, as the specific city lawyer who had directed him to deny the appeal. According to the transcript, Pecunies stated that in his 18-year tenure as a FOIA appeals officer, this was the only instance where a decision had been dictated to him by another person.
Did You Know?
The deposition of DEP FOIL officers was ordered by Judge James Clynes after the agency disclosed in November that it had located 68 boxes of 9/11-related materials, some of which were discovered during a routine office carpet replacement.
Disputes Over Deposition Conduct
The inquiry descended into a confrontation between opposing counsel, leading to an early end to the proceedings. Attorneys for the city accused Carboy of unprofessional behavior, claiming he raised his voice and struck the table. Lucinda Alfieri, representing the city, stated on the record that the conduct was “well beyond professional behavior.”
Carboy maintained that his frustration stemmed from the city’s handling of the records request. “You’re violating a court order and you lied to us,” Carboy said during the exchange. Following the disruption, the city’s legal team petitioned Judge Clynes for court supervision of future depositions to prevent further “unnecessary disruption or abusive conduct.”
Status of the Litigation and Next Steps
9/11 Health Watch initiated the lawsuit after three years of unsuccessful attempts to obtain air quality test results and toxin data from the Ground Zero site. While the city previously claimed it could not locate the records after a thorough search, the subsequent discovery of 68 boxes has shifted the focus of the court proceedings.
A possible next step involves a ruling from Judge Clynes regarding the request for court-supervised depositions. Additionally, Carboy has requested the opportunity to depose Musa Ali directly to determine why the appeal was denied despite the existence of the records.
Frequently Asked Questions
Why was the deposition of the DEP official ordered?
Judge James Clynes ordered the depositions after the DEP revealed in November that it had found 68 boxes of documents that it previously claimed could not be located.
What did Russell Pecunies admit during his testimony?
Pecunies admitted he did not personally verify if a diligent search for records had been performed and that he denied the FOIL appeal based on the specific instructions of city attorney Musa Ali.
What is the current status of the legal requests regarding these depositions?
The city has requested court supervision for remaining depositions due to alleged unprofessional conduct, while attorney Andrew Carboy has requested to depose Musa Ali regarding his role in the appeal denial. Judge Clynes has not yet ruled on these requests.
Do you believe the current legal process provides sufficient transparency for survivors seeking information about environmental hazards?
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