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Newsday, Suffolk seek release of secret Levy nonprosecution deal

Former Suffolk County Executive Steve Levy speaks about

Former Suffolk County Executive Steve Levy speaks about his administration's budget practices at a news conference in Holbrook on March 29, 2012. Credit: Ed Betz

Newsday and Suffolk County on Monday filed separate opposition papers asking a state appellate court to reject former Suffolk County Executive Steve Levy’s request to keep secret the 2011 nonprosecution agreement that ended his political career.

In papers filed with state Appellate Division, 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 say, referring to Levy’s secret agreement with former Suffolk District Attorney Thomas Spota. Levy's "extraordinary measures" to keep the document secret are "anathema to the public interest and public trust in government."

Suffolk County Attorney Dennis Cohen, arguing on behalf of the district attorney’s office, which moved to release the agreement to Newsday in May, called Levy’s arguments seeking to keep the document secret "wrong," and argued the "clear harm" was to Suffolk 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 added.

In a statement, Levy’s lawyer, David Besso, noted Levy’s agreement to end the investigation included no admission of any criminal wrongdoing but did include a "promise to keep the material collected in this spying plot under seal."

Newsday argued the newspaper, too, would suffer "harm" if the document is kept secret because it would be "unable to provide timely reporting on a matter that is the subject of a now five-month-old" Freedom of Information Law request "on an issue of significant concern to the citizens of Suffolk County."

Cohen noted that Levy already has publicly discussed the agreement and that his assertion of a promise of confidentiality with Spota was unsubstantiated and "unenforceable."

"Quite simply, the District Attorney does not have the authority to promise that the agreement would not be subject to disclosure pursuant to a FOIL request," Cohen wrote.

In a sign that Spota’s 16-month investigation of Levy had been before a grand jury, the Suffolk County opposition papers filed Monday noted a subsequent Newsday request for all documents in the Levy probe and said it would need additional time to review the request to "evaluate whether Grand Jury secrecy rules prohibit disclosure."

Last month, Levy said, "We had no knowledge any indictment from a grand jury [was] forthcoming."

Suffolk County Supreme Court Justice Paul Baisley, in a ruling July 15, rejected Levy’s arguments in a case Levy initially filed anonymously in May seeking to block Newsday’s document request. Baisley noted the absence of any language in the agreement mandating confidentiality and ordered it produced to Newsday 10 days after his ruling.

Levy quickly filed a notice of appeal seeking a temporary stay of its release, arguing it would "devastate" his professional career. Appellate Division Associate Justice Cheryl Chambers granted a temporary hold on its release and other documents in the 16-month Levy probe pending filing of Monday’s arguments.

Newsday, citing its "undeniable interest," requested Appellate Division approval to intervene in the case after Baisley denied it as moot following his release of the document.

Newsday argued Levy has provided "no factual basis whatsoever" for his claim the public will "misunderstand the nature of the non-prosecution agreement" if it's released.

The solution to Levy’s concerns, Newsday argued, is to "speak out about the agreement, not for him to demand that this important public document stay secret forever."

Besso accused Suffolk County of "playing an unsupportable and dangerous game by saying it’s acceptable for a DA to give a promise of confidentiality to the subject of an investigation — who relies on the promise in giving up his rights — only to have a future DA renege on the agreement."

Spota in 2011 said his office’s probe of Levy’s campaign "revealed serious issues with regard to fundraising," but also found Levy "did not personally profit." Nearly $4 million in campaign funds were returned to donors and Levy accepted responsibility for "whatever might have allegedly happened," Levy noted in an email Monday.

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