DA Tierney 'flatly incorrect' in filing to keep Levy-Spota deal secret: Newsday

Suffolk's current district attorney is “flatly incorrect” in arguments that seek to keep secret former County Executive Steve Levy’s nonprosecution agreement with ex-District Attorney Thomas Spota, Newsday said in new court papers.

Suffolk District Attorney Ray Tierney, in a surprise move earlier this month, filed a motion in the state Appellate Division seeking to withdraw a brief filed by his predecessor, former Suffolk District Attorney Timothy Sini, who had sought to release the agreement to Newsday.

Newsday filed a Freedom of Information Law request seeking a copy of the agreement last year, citing Levy’s own public comments about the agreement in an opinion column on Newsday’s editorial page. Levy and Spota reached the agreement in 2011 to put an end to the DA's probe into Levy's campaign finance practices. The agreement has never been made public.

In its filing with the Appellate Division last week, Newsday noted the appeals court had received all briefs and was awaiting a three-judge panel’s decision before Tierney's motion. 

The newspaper said Tierney’s “reversal of position and withdrawal” would put it at a legal disadvantage after more than a year of “seeking to vindicate its rights” under New York’s public records law.

“Newsday is the real party in interest, and is before the court,” Newsday’s outside lawyer, Alia L. Smith, wrote. “Failure to address its Freedom of Information Law rights in this appeal would be wasteful, burdensome and fundamentally unfair.”

Tierney’s office said release of Levy’s agreement would harm witness cooperation in future cases by the office, although an attorney for Levy said his client was never a cooperating witness or informant in the probe.

While Tierney's motion to withdraw could strike a blow to Newsday's efforts to make the agreement public, it may not be the last word, as Tierney's brief acknowledged. Newsday's request to intervene in the case still awaits a decision, and the appeal itself. "That will not change as a result of our application," according to Tierney's filing.

In a separate filing last week, attorneys for Levy said he supported Tierney's request to withdraw from the case.

Newsday called Tierney’s argument that the state FOIL law allows him to withhold the agreement “flatly incorrect.”

The exemption to FOIL cited by Tierney, and earlier by Levy, concerns “confidential sources and identifying information about those sources” and is “not meant to allow the known target of a criminal investigation to keep allegations against him shielded from public scrutiny."

Newsday also argued there’s reason to “seriously question” Tierney’s assumption that disclosure of the secret Levy-Spota deal would have a chilling effect on cooperation with future witnesses. For one, Newsday noted, the federal government “routinely makes such agreements publicly available.”

For another, “Levy is neither a witness nor a source, so the issue is largely irrelevant here,” Newsday wrote.

Newsday argued the district attorney, by adopting Levy’s “novel interpretation” of claimed exemptions to FOIL, “would allow law enforcement agencies to shield from public disclosure virtually any information obtained from an outside source ... It would enable the type of secret justice that FOIL was passed to preclude,” Newsday concluded.

Tierney, in a statement to Newsday on Tuesday, said, "Although the sealed disposition negotiated with former County Executive Levy is not one that my office would have ever entered into, we must stand by what was promised." 

Tierney’s office filed a follow-up brief opposing Newsday’s argument, but noting Newsday could pursue the limitation entirely on its own.

Levy’s lawyer, David Besso, last week said his client was "grateful that the new [Tierney] administration has realized the error of the past administration."

But Howard Master, a former special counsel under Sini, said the public has a "right to know the terms of the [Levy] agreement," and that the "facts and the law" support Newsday's request to release the document. 

Levy filed his appeal to the state Appellate Division last year after Suffolk Supreme Court Judge Paul Baisley agreed with Sini's office that the agreement should be released. He ordered the release of the agreement that concluded a probe of Levy’s campaign practices and effectively ended Levy’s political career. In doing so, Baisley argued among other things that the agreement contained no specific language laying out the terms of its secrecy.

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

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