A New York City Freedom of Information Law official deposed over long-sought documents about the toxins swirling over Ground Zero admitted a city attorney told him to deny an appeal for the pivotal information from 9/11 survivors — a bombshell revelation that sparked a heated argument between attorneys and shut the deposition down early, the Daily News has learned.
During the July 1 Manhattan Civil Supreme Court-ordered inquiry, Russell Pecunies, a records appeal officer for the city Department of Environmental Protection, testified he denied a FOIL appeal for the documents from 9/11 Health Watch on “advice of counsel.” He said he had not personally inquired if an appropriate search for the records had been made, a court transcript acquired by The News shows.
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Rescue personnel and firefighters sit in rubble of the World Trade Center after it collapsed on September 11, 2001. (Todd Maisel / New York Daily News)
firefighter ground zero
“Did you interview any of the people who did the search to find out whether in your estimation or conclusion that their search was diligent, thorough and adequate?” Andrew Carboy, an attorney for 9/11 Health Watch, asked Pecunies.
“No,” Pecunies admitted.
“So basically what you’re telling me is a lawyer told you something, you adopted what the lawyer told you and that’s what ended up in your appeal?” Carboy asked over objections from Pecunies’ attorneys that the question violated attorney-client privilege.
Pecunies later admitted that Musa Ali, one of the attorneys representing him at the deposition, was also the city attorney who told him to deny the appeal.
“Is this the only FOIA appeal in your tenure as FOIA appeals officer where you’ve had your conclusion or the conclusion essentially dictated to you by another person?” Carboy asked.
“Has there been another case where this has happened?” Pecunies answered. “Not to my recollection.”
“So this is the one and only case in 18 years, during your tenure as the FOIA appeals officer?” Carboy pressed.
“As far as I can remember, yes,” Pecunies said.
Todd Maisel / New York Daily News
Firefighters walk through the rubble of the World Trade Center on Sep. 11, 2001. (Todd Maisel / New York Daily News)
The development sparked a heated back and forth between Carboy and Pecunies’ attorneys, who in court papers have accused the 9/11 Health Watch attorney of interrupting them, raising his voice and banging on the table.
“This is not the end of this,” Carboy said at one point, according to the transcript. “This is outrageous. What do you think? We’re a bunch of morons? This is ridiculous.”
“You’re screaming,” one of Pecunies’ attorneys, Lucinda Alfieri, said to Carboy. “I just want to state on the record…”
“Yeah, I am screaming,” Carboy countered. “I am angry.”
“Counselor is screaming, pointing at attorneys and banging on the table,” Alfieri said. “This is well beyond professional behavior. You did not…”
“This isn’t professional behavior,” Carboy said. “You’re violating a court order and you lied to us. You said there were no records.”
Alfieri and Ali ended the deposition early, taking Pecunies with them. They then petitioned Judge James Clynes, requesting court supervision “to ensure that any remaining depositions proceed in a professional and orderly manner free from unnecessary disruption or abusive conduct.”
Responding to the city’s request, Carboy supported judicial oversight at any further depositions to rule on attorney-client privilege objections. Carboy also asked to depose Ali as to why he told Pecunies to deny the appeal.
“(Pecuines) did not actually determine the FOIL appeal denial,” Carboy wrote in court papers. “He certified that the appeal denial was ghostwritten by (Ali), who is neither a FOIL researcher or a FOIL appeals officer.”
Clynes has not ruled on the city and Carboy’s requests.
Attorneys for 9/11 Health Watch sued the DEP for the documents after three years of requests for air quality tests and toxin data at Ground Zero — which the agency said they couldn’t find after a thorough search — were denied.
Clynes ordered that DEP FOIL officers be deposed — a rarity in these lawsuits — after the DEP suddenly admitted in November that they had found 68 boxes worth of materials, some of which were found as the agency replaced their carpets.
The stunning discovery came after the city’s Department of Investigation was mandated by the City Council to determine what the city knew about the Ground Zero toxins and when.
Both City Hall and the city’s Law Department declined to comment on Pecuines’ deposition.
Carboy said Pecuines’ answers “shattered my worst expectations about the city’s efforts to hide its Sept. 11th archive.”
“The city misused this career staffer as a cut out, stripping him of any independence and directing him to sign a scripted ‘decision,’” he said. “This is the most shocking testimony I have taken in my three decades of practice.”
Benjamin Chevat, the executive director of 9/11 Health Watch, found it baffling that his organization is still being given the run around on their document request when Mayor Mamdani has vowed to release them to the public.
“We just want to understand why on the one hand the city says it is going to disclose what it knows about 9/11 and on the other hand is trying to dismiss our case trying to get the documents,” he said.
