Farkas v. Office of the Special Inspector General

Filing 29

ORDER denying without prejudice 21 Motion to Compel and denying as moot 22 Motion to Defer Ruling. The hearing in this matter scheduled for 10/22/2014 is CANCELLED. Signed by Senior Judge James C. Fox on 10/17/2014. Copy of order sent to Lee B. Farkas 43560-018, Butner Medium II - F.C.I., P.O. Box 1500, Butner, NC 27509 via US Mail on 10/3/2014. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-309-F
LEE B. FARKAS,

Plaintiff,

v.
OFFICE OF THE SPECIAL INSPECTOR
GENERAL,
Defendant.

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ORDER

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This matter is before the court on the Government's Response [DE-28] to this court's
October 3, 2014, Order [DE-28]. For the reasons stated below, the hearing in this matter scheduled
for October 22,2014 is CANCELLED, and the Motion to Compel Document Production [DE-21]
and Request to Defer Ruling [DE-22] filed by the prose Plaintiff Lee B. Farkas are DENIED.
Farkas, a federal prisoner currently housed at FCI Butner Medium II, filed this civil action
last year pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, "seeking the
disclosure and release of agency records improperly withheld from plaintiff by ... [the] Office of
the Special Inspector General for the Troubled Asset ReliefProgram ("SI GTARP")." Compl. [D E-1]
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1. On October 15,2013, the Government filed a Stipulation ofDismissal Without Prejudice [DE-

20] signed byNealFowler,AssistantUnited States Attorney, and Farkas. The court thereafter closed
the case.
On June 2, 2014, Farkas filed the instant Motion to Compel. Therein, he asserts that he
reached a Settlement Agreement with the Government, which resulted in the filing ofthe Stipulation
of Dismissal. He contends, however, that the Government has not complied with the Settlement

Agreement, which provides that the parties stipulate and agree to the following:
1.
2.
3.

5.

6.
7.

SIGTARP agrees to process the plaintiffs FOIA request as ifit were filed on
September 24, 2012;
SIGTARP agrees to waive the substantial fees required for reviewing and
copying of relevant documents responsive to this FOIA request;
The plaintiff agrees to dismiss this action without prejudice (i.e., the plaintiff
may refile an action for any FOIA violations as set forth herein);

SIGTARP retains the right to withold any document under applicable FOIA
Exemptions, except under Exemption 7(A) with regard to enforcement
proceedings against plaintiff;
The plaintiff retains the right to refile his Complaint on the grounds that his
request was not properly processed in accordance with FOIA; and
The plaintiff and SIGTARP mutually agree to work together to prioritize
document production, eliminate unneeded documents, and schedule a rolling
production of the voluminous documents requested.

Settlement Agreement [DE-21-1].
Farkas contends that more than two months after he signed the Settlement Agreement, he
asked General Counsel for SIGTARP to provide a schedule of production of documents, but received
no response. In his motion to compel, however, Farkas does not include information about
correspondence he received from SIGTARP' s General Counsel dated October 18, 2013, which stated
that SIGTARP had identified approximately 46,000 pages of documents and more than 20,000
emails to review. The letter also included information explaining the complexity of processing the
FOIA request, including (1) under FOIA law, many documents that were obtained from other
agencies must be referred back to those agencies for review and analysis under FOIA; (2) many
documents contain personally identifiable information, confidential or proprietary business
information, or other information subject to the Privacy Act, 5 U.S.C. § 552(a), and must be

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examined to determine if they are subject to being withheld or can be redacted; and (3) many of the
documents are several hundred pages long each and must be divided into the original discrete
documents and analyzed individually. The letter also advised that reviewing the 20,000 emails would
be a lengthy and time-consuming process, and asked ifFarkas would be willing to narrow his request
to specificissues. See Response, Ex. B [DE-28-3]. In response, Farkas declined to narrow the scope
of his request with regard to the emails, explaining that he was unable to do so. See Response, Ex.
C [DE-28-4].
Farkas received a letter in February informing him that two boxes of documents were being
shipped to him, but he received only one of the two boxes. He did, however, receive a separate third
shipment of documents in April2014. Farkas filed the instant Motion to Compel [DE-21] seeking
an order compelling Defendant (1) to replace the missing documents from the first shipment and (2)
to produce the balance of his request for documents.
A little more than two weeks after filing the Motion to Compel, Farkas filed a Request to
Defer Ruling [DE-22]. Farkas asserted that the Government had told him that document production
was eminent, and he asked the court to defer ruling for ninety days. Shortly thereafter, the
Government filed its Response [DE-23] in opposition to the Motion to Compel, asserting that (1)
Farkas' motion is not proper because the action is closed; (2) the motion is moot because the
Government recopied and resent the missing box of documents, and (3) Farkas has not "established
an adequate basis for relief." Response [DE-23] at 2. Farkas then filed his Rebuttal [DE-24],
asserting that the Government has only produced 16,000 pages of the 68,000 pages it has identified
as being responsive to his request.
The court construed Farkas' Motion to Compel to be asking the court to reopen the case, and

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either enforce the settlement agreement or restore the case to the active docket. The court set the
matter for hearing on October 22, 2014. The Government filed its response on October 16, 2014,
providing additional correspondence between Farkas and SIGTARP, which sheds light on the pace
of the production of the documents.
Based on the information contained in the Government's response and exhibits thereto, the
court finds that reopening this case pursuant to Rule 60(b)( 6) is not warranted, because there has not
been a breach of the Settlement Agreement. Although the pace of the document production has not
been satisfactory to Farkas, the court does not find that any of the circumstances indicate that the
Government has failed to comply with the terms ofthe Settlement Agreement. Accordingly, the
Motion to Compel [DE-21] is DENIED without prejudice. The Request to Defer Ruling [DE-22] is
DENIED as moot.
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SO ORDERED. This the~ day of October, 2014.

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