Former Suffolk County Executive Steve Levy speaks at a news conference...

Former Suffolk County Executive Steve Levy speaks at a news conference in 2012. Credit: Ed Betz

Public release of former Suffolk County Executive Steve Levy’s two-page non-prosecution agreement would have an "unconscionable chilling effect" on county prosecutors’ attempts to reach settlement agreements in the future, lawyers for Levy argued in his latest court filing.

In a reply brief filed earlier this month, Levy’s lawyers pushed back on arguments by Suffolk DA Timothy Sini and Newsday that public release of the 2011 agreement that ended Levy’s political career is both a lawful exercise of the Freedom of Information Law and in the public interest. Levy agreed to the settlement of former DA Thomas Spota’s 16-month criminal investigation of his campaign finances by forfeiting his $4 million campaign fund and agreeing not to run for his seat in the future. Levy was never charged with wrongdoing.

Details of the agreement had never been released until Levy was quoted in a 2020 Newsday editorial in which he opened up about deal, expressed regret he ever signed it and downplayed its findings. "It was not a death-penalty item," he said, but more along the lines of using county phones or computers for campaign purposes.

Newsday, citing those comments, filed a Freedom of Information request in February, and, after Sini’s office moved to comply, Levy filed suit to block it. A Suffolk Supreme Court judge ruled in Newsday’s favor this summer, but Levy in July filed an appeal in the state Appellate Division, arguing that the document should remain secret because a cover page listed it as "Under Seal Priviledged (sic) and Confidential Non-Prosecution Agreement." Sini’s office argued, and a lower court judge agreed, that the document itself includes no stipulation for sealing.

In his reply brief, Levy argued there was no need for such a "redundant" language.

He called the lower-court ruling ordering release of the document "an abuse of judicial discretion" because of its "disregard for the promises made" by the DA’s office. He also noted that "multiple New York cases" calling for upholding prosecutors’ promises of confidentiality weigh in favor of keeping his agreement with Spota secret.

"Allowing the current district attorney to void a promise made by a previous district attorney to a party who detrimentally relied on such promise will have an unconscionable chilling effect on those in the future who would otherwise readily enter into settlement agreements with the district attorney," his lawyers wrote. "Mr. Levy has demonstrated a legitimate privacy interest as an individual subjected to investigation without arrest or charge. This privacy interest exempts the Confidential NPA from disclosure pursuant to FOIL."

Suffolk County Attorney Dennis Cohen in his Appellate brief argued that there are no special exemptions that apply to Levy’s case under FOIL, that the paper itself contains "no promises of confidentiality" and that Levy himself publicly discussed the case. In the end, he argued, "the balance clearly weighs in favor of the public’s right to know."

Levy’s lawyers countered that "although the circumstances preceding the [agreement] may be a point of fascination to the public, these circumstances involved a nefarious plot referred to as ‘killing Levy’ — one that extended beyond Mr. Levy’s role as a public official and inflicted harassment upon him, his family, and his associates." Levy alleged Spota masterminded a plot to end his career.

Levy’s lawyers also argued that while public officials "may have a diminished expectation of privacy, a certain level of privacy still remains and should not be disregarded."

Further, they said, Levy is "no longer a public official," out of politics for a decade and "no longer in a position of power or influence."

"Mr. Levy is an individual who has given up his life’s work to protect not only himself, but his family and associates from an admitted coup attempt designed to destroy him," they said. "As a matter of fairness, Mr. Levy should be entitled to the promise of confidentiality that induced his sacrifice."

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