Suffolk DA Ray Tierney files to keep Levy-Spota agreement secret

Suffolk County District Attorney Ray Tierney, in an unexpected reversal, has asked a state appellate court to withdraw his office’s brief seeking release of former Suffolk County Executive Steve Levy’s non-prosecution agreement, saying release of the document to Newsday would have a “chilling effect” on future witness cooperation.

The decision, made in an affidavit filed with the court Oct. 6, seeks to reverse arguments by the district attorney's office under former Suffolk DA Tim Sini seeking release of the 2011 secret agreement between Levy and former DA Tom Spota, which ended Levy’s political career.

In addition, Tierney's action would reverse the office’s positions that led a Suffolk Supreme Court judge last year to order release of the document to Newsday, which filed the original request seeking the document’s release after a decade shrouded in secrecy.

In a filing on behalf of Tierney, Assistant District Attorney Christopher Clayton asked the State Appellate Division, which has been reviewing the case, to withdraw the prior brief by Sini's office. That brief argued that the lower court properly found the non-prosecution agreement “did not contain a promise of confidentiality, and that even such an implied promise did not prevent its disclosure" under the state Freedom of Information Law, among other reasons.

Clayton's court papers noted that on assuming office in January, Tierney, while “acknowledging the need for transparency in government,” became “concerned that the disclosure of the non-prosecution agreement will have a chilling effect on future cooperation between witnesses” and his office, “particularly in governmental corruption investigations.”

“This is particularly true where implied or expressed promises of confidentiality have been made,” Clayton wrote. “Plainly stated, witnesses will be unwilling to come forward in investigations without such confidentiality.”

David Besso, a lawyer for Levy, said his client was "grateful that the new administration has realized the error of the past administration ... . His privacy must be protected and the confidentiality of the agreement and the sealing requirement cannot be disregarded." 

Asked if Levy had been a cooperating witness in any DA investigation, Besso said, "Levy was not a cooperating witness, he was not an informant. He was basically a victim of Tom Spota and his team," whom he accused of "brutally violating Levy's rights." 

Besso said Tierney's concern more likely was that the district attorney "couldn't make a deal with anybody or any promises to anybody that can be kept confidential if anything he makes can be changed by another administration. Why would anybody talk to him if [the DA's office] couldn't keep their promise?" 

A spokeswoman for Tierney, who ran for office on the Republican line, didn't immediately respond to a request for comment. 

Howard Master, a former special counsel under Sini, said in a statement that Suffolk Supreme Court "Justice Paul Baisley’s well-reasoned decision ordering disclosure of the non-prosecution agreement was correct. The public had a right to know the terms of the agreement under which County Executive Steve Levy agreed to not run for reelection and to give District Attorney Tom Spota control over his multi-million dollar campaign account in exchange for the District Attorney’s promise not to prosecute him, particularly after Levy later sought to publicly characterize the agreement. The facts and the law supported Newsday’s FOIL request then, and they continue to do so today."

Newsday originally filed the Freedom of Information Law request for the 2011 document in February of last year, and Levy filed a lawsuit to block it the following May. Levy argued release of the agreement, which followed a 16-month criminal investigation by former DA Spota, who is in federal prison on an unrelated charge, would "devastate" his professional career.

In papers filed with the state Appellate Division last year, Newsday rejected Levy’s claim that release of the document would cause him "immediate and irreparable injury," requesting instead that the court release the decade-old document "immediately."

"The public has a right to know the terms of the agreement reached by these two particular officials," the papers said. Levy's "extraordinary measures" to keep the document secret are "anathema to the public interest and public trust in government."

In a separate reply brief filed last year, Suffolk County Attorney Dennis Cohen, arguing on behalf of Sini’s office, called Levy’s arguments "wrong" and said the "clear harm" was to the county and its citizens.

Levy, "in attempting to usurp the right of the free press to access government records … seeks to keep from the citizens of Suffolk County matters clearly within the public interest," Cohen wrote.

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

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