Suffolk DA's office argues for release of secret Steve Levy agreement

A lawyer for the Suffolk County District Attorney’s Office Friday argued for the release of former County Executive Steve Levy’s 2011 nonprosecution agreement to Newsday in a lengthy appellate brief that noted Levy himself "did not treat the document as confidential."

Suffolk County Attorney Dennis Cohen, in 497-page Appellate Division brief on behalf of DA Timothy Sini’s office, dismissed Levy’s latest argument that the agreement’s title page, which called it "Under Seal, Privileged and Confidential," is the chief reason it should be kept secret, noting that the document itself contains no such protections.

"Levy did not treat the document as confidential, purporting to describe it and the investigation" in an interview with Newsday in 2020, Cohen noted. "Had there been any commitment to maintain the confidentiality of the agreement, Levy would have breached it by openly discussing it with the entity that now is seeking to see its actual terms pursuant to FOIL."

Suffolk County Supreme Court Judge Paul Baisley, in a ruling this summer that called for release of the document to Newsday, "correctly pointed out that the label or heading of an agreement does not render the agreement confidential when there is no language within the body of the agreement expressing clear intent" to keep it "from being disclosed," Cohen wrote.

More fundamentally, Cohen wrote, "the public has the right to know why" Levy forfeited his $4 million campaign fund and agreed not to run for reelection. "There has been much reporting and public speculation, to which Levy himself has contributed," Cohen wrote, and there is "public interest in the actions of the former District Attorney [Thomas Spota], who has been convicted and sentenced to a substantial term of imprisonment for covering up the crimes of the former police chief."

The Levy case stems from a Freedom of Information Law request filed by Newsday in February seeking a copy of the agreement, which Levy reached with Spota in 2011 that required him to relinquish his $4 million campaign fund, ending his political career. Levy in May filed suit against Sini’s office just as he was preparing to release it. After Baisley's decision, Levy in September appealed the ruling to the state Appellate Division.

In a statement Friday, David Besso, Levy's lawyer, in an apparent reference to a second Newsday Freedom of Information Law request seeking all investigatory material in the case, wrote, "Our appeal opposes a FOIL request that seeks a release of all materials — not just a two-page document — gathered from a spying operation in a coup attempt against the county executive."

Besso added, "No sane individual would be OK with exposing every word and movement you and your family made over a malicious spying venture."

Cohen noted that Levy previously characterized the allegations against him in the agreement as "more along the lines of using county computers and telephones for campaign purposes, rather than as a ‘death penalty item’ or as ‘something nefarious,’" in arguing it was "not irrational" for Sini’s office to release the document "so the public can determine whether [Levy]’s characterizations were accurate."

And while Levy may now "wish he had included a confidentiality clause in the agreement," Cohen argued, "in plain terms you cannot bargain your way out of FOIL disclosure."

In addition to lacking secrecy clauses, the agreement also contains nothing that "could endanger [Levy]’s safety and he is not a source providing confidential information that needs to be protected," Cohen wrote.

The DA’s brief also challenged Levy’s contention that the agreement was privileged because plea agreements in various jurisdictions are not subject to disclosure.

"Federal courts have held otherwise," Cohen argued, finding that plea agreements, "absent compelling circumstances, must be made accessible to the public and the press."

Levy, Cohen wrote, has provided no evidence to support his claim that the agreement should be kept secret "a full decade after it was finalized without ever previously being sealed. There were no public safety concerns or other compelling interests that would have warranted secrecy at the time the agreement was entered into, and there certainly is none now."

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.