Levy appellate brief argues agreement should be kept secret

Lawyers for former Suffolk County Executive Steve Levy argued in a court brief Wednesday that the very title of his non-prosecution agreement as "under seal," "confidential" and privileged guarantees his right to keep the document under wraps, despite a lower-court ruling that the agreement itself contained no such considerations.

In an 853-page state Appellate Division filing, lawyers for Levy called his 2011 agreement an "enforceable contract" and said the promise of confidentiality "should be upheld" under law and "as a matter of fairness."

Levy’s filing Wednesday is the latest in his efforts to keep the controversial document from public view after Newsday filed a Freedom of Information Law request with the Suffolk County District Attorney’s Office in February. Levy in May filed suit to block the disclosure, but a Suffolk County Supreme Court judge in July ruled in Newsday’s favor, ordering the agreement that ended Levy’s political career to be released to Newsday in July.

Levy filed a notice of appeal with the Appellate Division seeking to overturn the ruling July 22. The appellate panel ordered the document and all investigatory material be kept under wraps pending Levy’s appeal filing and a review.

Levy, in the latest court papers, argued that the "prominent title" of the document as "Under Seal Priviledged (sic) and Confidential Non-Prosecution Agreement" provided "implicit proof of the parties’ intention" to keep it under wraps.

That view is at odds with the ruling of Suffolk County Supreme Court Judge Paul J. Baisley Jr., who noted in his July order that Levy "is an experienced lawyer who was represented by an experienced criminal defense attorney" in the non-prosecution agreement and while Levy "attests that there was a promise of confidentiality, he provides no explanation for why the promise was not contained within the agreement." Accordingly, he concluded, the non-prosecution agreement is "merely called ‘sealed, privileged and confidential,’ [and] there is no language within the agreement to support the intention to keep the Agreement from being disclosed."

"A mere promise of confidentiality does not afford a record of protection of disclosure under FOIL," Baisley wrote.

Levy’s brief called those conclusions "irrelevant."

The title alone confers the condition, Levy’s brief contends, and there’s "no need for further redundant or explanatory provision within the agreement." Levy’s lawyers also noted that the agreement has "remained confidential for the last 10 years" and that he’s complied with all terms of the agreement.

Levy argued "law enforcement" exemptions in the Public Officers Law further protect his agreement from public disclosure, noting that to disclose it would be "to identify a confidential source or disclose confidential information relating to a criminal investigation."

Levy’s brief argues he was not only "encouraged" to enter the agreement because it would be confidential but "compelled" to do so. To disclose it now, he wrote, "would flout the very basis of the contractual agreement between the parties …"

"Courts have consistently held that promises made by prosecutors and relied upon by the subjects of investigation who provide consideration by forfeiting their rights have indeed entered into a binding contract," Levy’s brief asserts.

Pointing to the alleged basis for the DA’s investigation, Levy’s brief noted that on entering office in 2004, he implemented cost-cutting measures that included "efficiency measures" at the DA’s office and the Suffolk County Police Department. Implementation of the measures "incited former District Attorney Thomas Spota" to view Levy as "anti-cop," the "enemy" and "uncontrollable," the court papers state.

The brief argued that perception led to an eventual plot by Spota and his inner circle to "remove Mr. Levy from office," a conspiracy otherwise known as "killing Levy," the papers say. "This plot dated back to 2006 and continued until the parties entered" the non-prosecution agreement on March 23, 2011. Levy said he would "never have agreed to the drastic conditions imposed upon him" in the agreement "had he believed" the agreement "would one day be disclosed to the public."

Levy "reasonably relied" on representations that the agreement would be kept secret and he made "considerable sacrifices" by forgoing his political career and $4 million campaign fund, the brief said. It doesn’t discuss the potential prosecution Levy faced, including whether or not a criminal grand jury had been hearing evidence in the case; nor does it discuss the nature of the findings in the agreement.

Despite Levy discussing elements of the agreement in a Newsday opinion piece, his brief argued that he did not waive his privacy interest. And it argued that disclosure of the agreement would "lend to the assumption that Mr. Levy was guilty of something improper when, in actuality, there was never an admission of guilt."

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

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