Whether to keep Levy/Spota deal secret is focus of appellate court hearing

Judges at a mid-level state court Friday pushed back on whether there are any legal grounds for preventing the public from finally seeing the details of a secret agreement between ex-Suffolk County Executive Steve Levy and a prosecutor that ended Levy’s political career.

The 2011 pact between Levy and former District Attorney Tom Spota made a seismic impact on county politics. It included Spota promising not to prosecute Levy following a probe and keeping the details confidential. Levy, then a popular incumbent, agreed not to run for re-election and took the extraordinary step of giving Spota control over his $4 million campaign fund. Spota now is in a federal prison on unrelated corruption charges.

In 2021, a trial court judge, responding to a Newsday request under the state’s Freedom of Information Law, ruled the document should be released, but Levy appealed.

On Friday, attorneys for Levy and Newsday battled before a panel of judges at the mid-level Appellate Division in Brooklyn.

Nicole Bohler, a Levy attorney, called Spota a “rogue DA” who conducted a “corrupt spying operation” that included “blackmailing techniques” to intimidate friends, family and public employees to politically cripple Levy.

She said Levy made the agreement with Spota “under duress” with the promise that the probe would remain sealed.

“What other choice did he have?” Bohler said.

But the four-judge panel pushed back on whether there was any legal grounds for sealing.

“This agreement is labeled confidential and the confidentiality clause simply doesn’t exist. So, short of the title, is there any other guarantee of confidentiality?” Justice Lara J. Genovesi said.

“No, your honor. The parties relied on the title affixed to the top of the document,” Bohler replied. There was no case law saying a confidentiality clause was required to be within the document, she added.

Further, Bohler said the document should be exempt from FOIL because Levy relied on Spota’s promise of confidentiality.

“But there’s nothing in the document which says it should be sealed,” Justice Francesca Connolly jumped in. “It says confidential, but it doesn’t say anything about sealing.”

Later, Justice Barry Warhit said: “You don’t have a sealing order from a court. This is not a situation where something happens in a courtroom and there’s an application to seal the record. You don’t have anything like that.”

Warhit continued, saying a 1984 ruling by New York’s highest court said a “promise of confidentiality is irrelevant to whether requested documents have to be disclosed under FOIL.”

Bohler argued that case dealt with a state agency, not a prosecutor with broad powers to investigate and prosecute. As for Spota never taking action to seal the argument, she said Levy had relied on Spota to do so.

Genovesi then returned to the lack of wording spelling out confidentiality.

“There are no parameters. The agreement is completely silent but for the title,” Genovesi said. “If the argument was the DA is exempt from FOIL — which I don’t see any authority at this moment — we don’t know what the terms of the confidentiality are.”

David Schulz, the attorney representing Newsday, argued there’s no evidence that information in the agreement was obtained on the basis of confidentiality.

He said FOIL provides only narrow exemptions — such as when a prosecutor wants to keep a source confidential to protect the person and the investigation — that do not apply in this instance.

He said Levy’s privacy claims should be balanced against the public interest, with the latter prevailing.

“The public interest here is, I submit, overwhelming,” Schulz said. “This is an agreement by which a highly popular county executive gave up his political career out of the blue. Not only gave up his political career, but gave up $4 million in his campaign funds to his arch enemy, the district attorney who we later find out is totally corrupt. … There could not be a higher public interest in understanding what happened here.”

No matter the Appellate Division’s eventual decision, the case could be appealed to New York’s top court, the Court of Appeals.

By Yancey Roy

yancey.roy@newsday.com@yanceyroy