Opinion
No. 350146
08-20-2020
SHANE ANDERS, Plaintiff-Appellant, and ROBERT DAVIS, Plaintiff, v. CITY OF TAYLOR, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 19-001260-CZ Before: RONAYNE KRAUSE, P.J., and SAWYER and BOONSTRA, JJ. PER CURIAM.
Plaintiff, Shane Anders, appeals as of right the trial court's order denying his motion for attorney fees and costs. Anders argues on appeal that the trial court erred by denying his motion for attorney fees and costs because he prevailed on his claim brought pursuant to the Freedom of Information Act (FOIA), MCL 15.231 et seq. We affirm.
I. FACTUAL BACKGROUND
On September 17, 2018, Anders submitted a FOIA request via e-mail to defendant's FOIA coordinator, Cynthia Bower, requesting all e-mails sent, received, and deleted between June 1, 2017 and June 30, 2017, by defendant's retired Chief of Police Mary Sclabassi and Chief of Staff Bobby Dickerson. On September 25, 2018, Bower's administrative assistant, Britni McGuckin, informed Anders via e-mail that his FOIA request was being processed and requested a 10-day extension to issue a final determination because of the volume of records which Anders sought. The notice informed Anders that he would receive a final determination by October 9, 2018. On October 10, 2018, defendant sent Anders a notice requesting a good-faith deposit and stated that his FOIA request would not be processed until defendant received the deposit. Anders never paid the requested deposit or responded to the good-faith deposit demand letter.
On January 21, 2019, Anders filed this action alleging that defendant violated the FOIA by failing to respond to his FOIA request. On March 15, 2019, Bower's staff delivered the documents that Anders requested to Anders's office. Bower explained that she had her staff process and deliver the documents because Anders filed a FOIA lawsuit. On June 13, 2019, Anders and his coplaintiff, Robert Davis, filed a motion for attorney fees and costs under the FOIA. Anders argued that he prevailed on his FOIA claim because the filing of this action caused defendant to deliver the documents that he requested. Defendant argued that Anders was not entitled to attorney fees because this action was not necessary for the production of documents; rather, Anders would have received the documents if he had paid the good-faith deposit. After a hearing on the motion, the trial court concluded that Anders was not entitled to attorney fees and costs because this action was not necessary and Anders would have received the documents if he had paid the good-faith deposit. Anders now appeals, arguing that he did prevail in his FOIA action so the trial court erred by denying his motion for attorney fees and costs.
Davis is neither participating in, nor particularly relevant to, the instant appeal. --------
II. STANDARD OF REVIEW AND APPLICABLE LAW
The proper interpretation and application of the FOIA is a question of law that this Court reviews de novo. Rataj v Romulus, 306 Mich App 735, 747; 858 NW2d 116 (2014). This Court reviews the trial court's grant or denial of attorney fees under the FOIA for an abuse of discretion. Estate of Nash by Nash v Grand Haven, 321 Mich App 587, 605; 909 NW2d 862 (2017). An abuse of discretion occurs when the trial court's decision is outside of the range of reasonable and principled outcomes. Id. (quotation marks and citation omitted). This Court reviews a trial court's factual findings for clear error. Id. The trial court's findings are clearly erroneous when, after reviewing the entire record, this Court is left with a definite and firm conviction that a mistake was made. Id.
"The Freedom of Information Act declares that it is the public policy of this state to entitle all persons to complete information regarding governmental affairs so that they may participate fully in the democratic process." Arabo v Michigan Gaming Control Bd, 310 Mich App 370, 380; 872 NW2d 223 (2015) (quotation marks and citations omitted). Michigan's FOIA is a pro-disclosure statute under which a public body must disclose all public records that are not specifically exempt from disclosure. MCL 15.233(1); Rataj, 306 Mich App at 748-749. The FOIA provides persons a right to inspect, copy, or receive copies of public records upon a written request to the FOIA coordinator of the public body. MCL 15.233(1); MLive Media Group v Grand Rapids, 321 Mich App 263, 270; 909 NW2d 282 (2017) (MLive). "Once a request under the FOIA has been made, a public body has a duty to provide access to the records sought or to release copies of those records unless the records are exempted from disclosure" as expressly provided in MCL 15.243. Arabo, 310 Mich App at 380 (quotation marks and citations omitted). Unless otherwise agreed to by the requesting party, the public body must respond to the request within five business days either granting the request, denying the request, granting the request in part and denying the request in part, or issuing a notice extending the period in which the public body has to respond for 10 days. MCL 15.235(2); MLive, 231 Mich App at 271.
A public body may charge a requesting party a fee for processing their FOIA request. MCL 15.234; Arabo, 310 Mich App at 381. In the public body's initial or subsequent response, a public body may request that the requesting party pay a good-faith deposit before issuing a final determination or providing the public record to the requestor. MCL 15.234(8); Arabo, 310 Mich App at 386-388. The fee must be limited to the "actual mailing costs, and to the actual incremental cost of duplication or publication including labor, the cost of search, examination, review, and the deletion and separation of exempt from nonexempt information." MCL 15.234(1); Arabo, 310 Mich App at 381. If the public body willfully and intentionally fails to timely respond to a properly-formatted request, it must reduce its labor fees. MCL 15.234(9). If the public body fails to respond entirely, its lack of response will constitute a final determination to deny the request. MCL 15.235(3); Arabo, 310 Mich App at 381.
If a public body denies all or part of a request for documents, the requesting party may commence a civil action. MCL 15.240(1)(b); MLive, 321 Mich App at 271. "If a party prevails completely in an action to compel disclosure under the FOIA, the circuit court must award reasonable attorney fees." Estate of Nash by Nash, 321 Mich App at 605-606 (quotation omitted), citing MCL 15.240(6). However, if a party only prevails in part, whether to award attorney fees in full or in part is discretionary with the court. MCL 15.240(6); Estate of Nash by Nash, 321 Mich App at 606. "A party has "prevailed" under the FOIA if the prosecution of the action was necessary to and had a substantial causative effect on the delivery of or access to the documents." Estate of Nash by Nash, 321 Mich App at 606 (quotation omitted).
III. ANALYSIS
Anders argues that he prevailed in this action and was entitled to attorney fees and costs because the filing of this action had a substantial causative effect on the delivery of the requested documents. We agree that the filing of a FOIA action had a substantial causative effect on the delivery of his requested documents. As noted, Bower specifically admitted that she directed her staff to deliver Anders's documents because he filed this action. However, that is only half of the equation. Anders's argument only focuses on the effect that this action had on the disclosure of the documents. Anders fails to address the reasonable necessity of the lawsuit.
Without expressly concluding whether defendant violated the FOIA, the trial court concluded that Anders did not "prevail" and was not entitled to attorney fees and costs because this action was not necessary to compel the disclosure of the documents which he requested. The record supports the trial court's conclusion. On September 17, 2018, Anders sent a written FOIA request to Bower. On September 25, 2018, McGuckin responded to Anders's FOIA request issuing a notice extending the response period for 10 business days. The 10-day extension notice indicated that Anders would receive a response on or before October 9, 2018. Defendant failed to respond to Anders's request on or before October 9, 2018. On October 10, 2018, Bower sent Anders a notice requesting that he pay a good-faith deposit. The good-faith deposit demand notified Anders that his FOIA request would not be processed until it received his good-faith deposit. Anders never paid the good-faith deposit, or even responded to the notice, and defendant did not produce the documents Anders requested until this action was filed.
Although defendant may not have timely responded to Anders's FOIA request and thus may have been required to reduce the labor charges under MCL 15.234(9), defendant did not have an obligation to issue a final determination regarding Anders's FOIA request or an obligation to produce the documents until Anders paid the good-faith deposit. Thus, as the trial court concluded, Anders is not entitled to attorney fees and costs: his lawsuit was not reasonably necessary to compel the disclosure of the requested documents because Anders failed to pay the good-faith deposit. See Arabo, 310 Mich App at 406-407 (concluding that the plaintiff was not entitled to attorney fees and costs because he failed to pay the good-faith deposit which the public body requested to process the plaintiff's FOIA request). Therefore, the trial court's decision to deny Anders's request for attorney fees and costs was reasonable and principled because Anders's lawsuit was not reasonably necessary to compel the disclosure of the requested documents.
Affirmed.
/s/ Amy Ronayne Krause
/s/ David H. Sawyer
/s/ Mark T. Boonstra