BOONSTRA, J.In this action under the Freedom of Information Act (FOIA), MCL 15.231 et seq. , defendant village of Oakley appeals by right the order of the trial court granting plaintiff Brandi Cramer's motion for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact) on all six counts of plaintiff's complaint. Defendant also challenges the trial court's order awarding plaintiff attorney fees, costs, and disbursements. Plaintiff cross-appeals, requesting an award of appellate attorney fees, costs, and disbursements. We reverse the grant of summary disposition in favor of plaintiff, remand for the issuance of an order granting summary disposition in favor of defendant, and vacate the award of attorney fees, costs, and disbursements. Finally, we decline to award plaintiff appellate attorney fees, costs, and disbursements.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On May 15, 2015, plaintiff sent defendant six separate FOIA requests, each seeking information pertaining to defendant's reserve police department unit. On May 20, 2015, defendant sent plaintiff six letters stating that the FOIA requests were "granted" and that it would "conduct a search of the Village records and provide you a copy of any documents we are able to locate." All of the responses were signed, "Cheryl Bolf[,] Village FOIA Coordinator." That same day, plaintiff's counsel sent an e-mail to Bolf acknowledging receipt of the letters, but stating that simply providing a written statement granting the requests was not sufficient to comply with the FOIA; defendant also needed to produce the requested documents. The e-mail further stated that the documents should be provided by May 22, 2015, and if they were not, further legal action would follow. On May 28, 2015, just three business days after the May 22, 2015 deadline, plaintiff filed suit. She alleged that because defendant had granted her FOIA requests, actual production of the documents was due on May 22, 2015, and that defendant's failure to provide the documents by that date was a wrongful denial of her requests. The complaint included six counts, each separately alleging the wrongful denial of plaintiff's six FOIA requests. Plaintiff requested an order directing defendant to immediately produce the requested documents, an order awarding reasonable attorney fees, costs, and disbursements, and an award of $3,000 in punitive damages.

Plaintiff moved for summary disposition on October 15, 2015, notwithstanding her admission in the motion that in early June 2015 defendant informed her that certain requested documents did not exist and that she had received from defendant the requested documents that did exist. In responding to the motion, defendant submitted an affidavit, signed by Bolf, stating that "after researching and assembling the documents requested, she transmitted copies of the documents to the party making the request on June 2, 2015." The trial court concluded that defendant's May 20, 2015 responses did not comply with MCL 15.235(2) because the requested documents were not themselves produced within the statutory time frame for a response, suggested that the responses therefore effectively constituted denials of the requests, and granted plaintiff's motion for summary disposition. The court also concluded that plaintiff was entitled to an award of attorney fees, costs, and disbursements. Plaintiff was awarded $6,048.50. This appeal and cross-appeal followed.

The trial court concluded that the documents were sent on June 3 or 4, 2015.

II. STANDARD OF REVIEW

We "review[ ] the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law." Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). An award of attorney fees under the FOIA is reviewed for an abuse of discretion. Prins v. Mich. State Police, 299 Mich.App. 634, 641, 831 N.W.2d 867 (2013). "A trial court abuses its discretion when its decision falls outside the range of principled outcomes." King v. Mich. State Police Dep't, 303 Mich.App. 162, 175, 841 N.W.2d 914 (2013). A trial court's factual findings are reviewed for clear error; that is, this Court must defer to the trial court unless we are "left with the definite and firm conviction that a mistake has been made." Id. at 174–175, 841 N.W.2d 914. We review questions of statutory interpretation de novo. Bush v. Shabahang, 484 Mich. 156, 164, 772 N.W.2d 272 (2009).

III. SUMMARY DISPOSITION

Defendant argues that it did not violate the FOIA by sending letters granting plaintiff's requests and producing the requested documents a short time later and that the trial court therefore erred by granting summary disposition to plaintiff. We agree.

MCL 15.235(2) states:

Unless otherwise agreed to in writing by the person making the request, a public body shall respond to a request for a public record within 5 business days after the public body receives the request by doing 1 of the following:

(a) Granting the request.

(b) Issuing a written notice to the requesting person denying the request.

(c) Granting the request in part and issuing a written notice to the requesting person denying the request in part.

(d) Issuing a notice extending for not more than 10 business days the period during which the public body shall respond to the request. A public body shall not issue more than 1 notice of extension for a particular request.

Failure on the part of a public body to respond to a FOIA request in the manner provided in Subdivisions (a) through (d) "constitutes a final determination to deny the request." King, 303 Mich.App. at 188–189, 841 N.W.2d 914, citing MCL 15.235(3).

We conclude that defendant complied with MCL 15.235(2), and that MCL 15.235(2) does not mandate that a FOIA recipient, after granting a FOIA request, deliver the requested documents within the period statutorily specified for responding to the FOIA request.

The trial court interpreted MCL 15.235(2), as does plaintiff, to mean that a public body can only "grant" a request by delivering the requested documents within the period specified by the statute for a response. We disagree. The first step in interpreting a statute is to "focus on the language of the statute itself." Petersen v. Magna Corp., 484 Mich. 300, 307, 773 N.W.2d 564 (2009). "The words of a statute provide the most reliable evidence of the Legislature's intent, and as far as possible, effect should be given to every phrase, clause, and word in a statute." Id. A court construing a statute should "avoid a construction that would render any part of the statute surplusage or nugatory." American Federation of State, Co. & Muni. Employees v. Detroit, 468 Mich. 388, 399, 662 N.W.2d 695 (2003) (quotation marks and citation omitted). Accordingly, the various "parts of a statute must be harmonized to discern and carry out the intent of the Legislature." Niles Twp. v. Berrien Co. Bd. of Comm'rs, 261 Mich.App. 308, 315–316, 683 N.W.2d 148 (2004).The term "grant" is not defined in the FOIA. This Court may use a dictionary to aid in the interpretation of undefined terms. See Cain v. Waste Mgt., Inc. (After Remand), 472 Mich. 236, 247, 697 N.W.2d 130 (2005). The word "grant," in the context of a request, is defined by Random House Webster's College Dictionary (2001), p. 572, as "to agree to: to grant a request. " This definition is not synonymous with completion of the task to which the one to whom the request was made agreed. Id. Compare, e.g., id. at p. 530 (defining the word "fulfill" as "to carry out, or bring to realization, as a prophecy or promise").

Further, in amendments that took effect after plaintiff's FOIA requests were made, the Legislature did, in a different subsection of the FOIA, indicate that the words "granted" and "fulfilled" with regard to a FOIA request are not synonymous. MCL 15.234(11) refers in relevant part to a public body's having "granted and fulfilled a written request from an individual under this act...." (Emphasis added.) The Legislature's use of two separate terms suggests that the terms have different meanings. U.S. Fidelity Ins. & Guaranty Co. v. Mich. Catastrophic Claims Ass'n (On Rehearing), 484 Mich. 1, 14, 795 N.W.2d 101 (2009) ; see also Macomb Co. Prosecutor v. Murphy, 464 Mich. 149, 159, 627 N.W.2d 247 (2001) (indicating that "[w]ords ... are given meaning by context or setting"). Its use of the conjunctive phrase "granted and fulfilled" indicates that the Legislature was aware, at the time of the amendments to MCL 15.235, that a public body may grant a request without fulfilling it. To hold that "grant" is synonymous with "fulfill" in MCL 15.235(2)(a) would render the phrase "and fulfilled" in MCL 15.234(11) nugatory. American Federation, 468 Mich. at 399, 662 N.W.2d 695. In addition, MCL 15.234(8) now expressly provides that a public body's " response" under MCL 15.235"shall also contain a best efforts estimate by the public body regarding the time frame it will take the public body to comply with the law in providing the public records to the requestor." This subsection provides further evidence that the Legislature intended that granting a request under MCL 15.235 be distinct from the fulfillment of that request. Further, in light of the remainder of our analysis, as well as the fact that the nature of the amendment to MCL 15.234 was to substantially revise the procedures relating to charging fees and deposits for FOIA requests, we do not construe the Legislature's amendment of MCL 15.234 to reflect a change in the meaning of the words "grant" or "response." Rather, the Legislature's language in these revised subsections supports our conclusion that the Legislature did not intend the word "grant" in MCL 15.235 to be synonymous with "fulfill." See Bush, 484 Mich. at 167, 169, 772 N.W.2d 272.Federal courts have also drawn a distinction between granting a federal FOIA request and fulfillment of that request. See Nat'l Security Archive v. Central Intelligence Agency, 564 F.Supp.2d 29, 34 (D.D.C., 2008) (holding that the plaintiff's case for a federal FOIA violation was moot because the defendant granted the requests and placed them in the "FOIA queue" for processing).

See 2014 PA 563, effective July 1, 2015, which also amended MCL 15.235.

Although MCL 15.234 principally deals with charging fees and deposits related to FOIA requests, the quoted language of MCL 15.234(8) is not limited to a response that involves charging a fee. Rather, like certain other subsections of MCL 15.234, e.g., MCL 15.234(4) (providing that public bodies "shall establish procedures and guidelines to implement this act"), MCL 15.234(8) applies more broadly, and provides that for "either the public body's initial response or subsequent response as described under section 5(2)(d)," the public body "shall" provide "in good faith" a best efforts time estimate for fulfilling the request. The provision of this good-faith time estimate, although "nonbinding," id., is mandatory. See Walters v. Nadell, 481 Mich. 377, 383, 751 N.W.2d 431 (2008) (noting that "the term shall is clearly mandatory"). The fact that defendant did not provide a time estimate because it was not required to do so at the time of plaintiff's requests, does not affect our analysis of the proper interpretation of MCL 15.235, and in any event, defendant did produce the requested documents in short order.

While decisions of lower federal courts are not binding on this Court, they may be persuasive. See Abela v. Gen. Motors Corp., 469 Mich. 603, 606, 677 N.W.2d 325 (2004).

Finally, we note that plaintiff and the trial court have suggested that unless the grant of a FOIA request is interpreted to require its immediate fulfillment, a public body could grant a request yet never actually fulfill it. However, our holding does not afford a public body with carte blanche to not produce responsive documents. As we have stated in the past, courts will look past a public body's label of its response to a FOIA request. King, 303 Mich.App. at 189, 841 N.W.2d 914. Thus, nothing precludes a plaintiff, if faced with an inordinate delay in the production of requested documents, from filing suit on the ground that a public body's actions in response to a FOIA request effectively constitute a denial in whole or in part, notwithstanding that body's labeling of a response as a "grant" of the request. See MCL 15.240(1)(b). Indeed, the FOIA allows a trial court to award punitive damages for arbitrarily and capriciously refusing to disclose or provide public records or delaying their disclosure or provision. MCL 15.240(7). And, as stated earlier, the public body is required to provide a good-faith time estimate, MCL 15.234(8), and a public body's failure to meet an estimate (although it is nonbinding) may in some circumstances tend to show that a public body's response was effectively a denial notwithstanding its choice of labels.

We note that in King, this Court held that a response from a public body purporting to grant a FOIA request but distinguishing between exempt and nonexempt material was effectively a grant of the request with respect to nonexempt material and a denial of the request with respect to exempt material. See King, 303 Mich.App. at 189–190, 841 N.W.2d 914. See also Arabo v. Mich. Gaming Control Bd., 310 Mich.App. 370, 386, 872 N.W.2d 223 (2015). However, this Court did not hold that failure of a public body to produce nonexempt material within the statutory time frame effectively constituted a denial of the request.

Under the circumstances of this case, we conclude that defendant's responses were not effectively denials of plaintiff's requests.

In sum, we conclude that the trial court erred by holding that defendant failed to comply with MCL 15.235(2), and by determining that defendant's responses to plaintiff's FOIA requests were effectively denials of those requests because the requested documents were not produced in the period provided for a response. We accordingly reverse the trial court's grant of summary disposition in favor of plaintiff and remand for issuance of an order granting summary disposition in favor of defendant pursuant to MCR 2.116(I)(2).

We note that even if the trial court's analysis was not erroneous, the court should have dismissed plaintiff's claims as moot because of defendant's subsequent production of the requested documents. See Herald Co., Inc. v. Ann Arbor Pub. Sch., 224 Mich.App. 266, 270–271, 568 N.W.2d 411 (1997) ("When the [FOIA] disclosure that a suit seeks has already been made, the substance of the controversy disappears and becomes moot.").
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IV. ATTORNEY FEES, COSTS, AND DISBURSEMENTS

Regarding attorney fees, costs, and disbursements, the FOIA provides:

If a person asserting the right to inspect, copy, or receive a copy of all or a portion of a public record prevails

in an action commenced under this section, the court shall award reasonable attorneys' fees, costs, and disbursements. If the person or public body prevails in part, the court may, in its discretion, award all or an appropriate portion of reasonable attorneys' fees, costs, and disbursements. The award shall be assessed against the public body liable for damages under subsection (7). [MCL 15.240(6).]

In light of our determination that defendant was entitled to summary disposition, plaintiff was not entitled to attorney fees, costs, and disbursements. Amberg v. City of Dearborn, 497 Mich. 28, 34, 859 N.W.2d 674 (2014). Although a party may be entitled to attorney fees when his or her action is rendered moot by subsequent disclosure, see Thomas v. City of New Baltimore, 254 Mich.App. 196, 202, 657 N.W.2d 530 (2002), such entitlement is still based on proof of an underlying FOIA violation. See id. at 205, 657 N.W.2d 530, quoting Walloon Lake Water Sys., Inc. v. Melrose Twp., 163 Mich.App. 726, 733–734, 415 N.W.2d 292 (1987) :

"[W]e believe that a plaintiff ‘prevails' in the action so as to be entitled to a mandatory award of costs and fees where he is forced into litigation and is successful with respect to the central issue that the requested materials were

subject to disclosure under the FOIA, even though the action has been rendered moot by acts of the public body in disposing of the documents. An otherwise successful [FOIA] claimant should not assume the expenses of the litigation solely because it has been rendered moot by the unilateral actions of the public body."

Additionally, "[t]o ‘prevail’ in a FOIA action within the meaning of MCL 15.240(6), a court must conclude that ‘the action was reasonably necessary to compel the disclosure [of public records], and [that] the action had a substantial causative effect on the delivery of the information to the plaintiff.’ " Amberg, 497 Mich. at 34, 859 N.W.2d 674, quoting Scharret v. City of Berkley, 249 Mich.App. 405, 414, 642 N.W.2d 685 (2002) (second and third alterations in Amberg; emphasis in Scharret omitted).

In this case, there is no evidence in the record, apart from the mere fact that the requested documents were produced after suit was filed, to support the contention that this action was necessary or had a substantial causative effect on defendant's production of the requested documents. Amberg, 497 Mich. at 34, 859 N.W.2d 674. To the contrary, Bolf's uncontested affidavit indicates that defendant had the intent to fully grant the requests and provide the requested documents once it had time to sort through its records—which it accomplished within 10 days of submitting its responses (and less than a week after the complaint was filed). Thus, the record shows that defendant intended in good faith to fulfill plaintiff's requests, produced the requested documents promptly, and took no action that could be seen as an attempt to withhold any documents from disclosure. See Scharret, 249 Mich.App. at 414, 642 N.W.2d 685. Yet plaintiff filed suit immediately after the period provided in MCL 15.235(2) for a response had lapsed. Nothing other than the mere fact that plaintiff's suit was initiated before the documents were delivered supports plaintiff's argument that a lawsuit was necessary to compel production of the documents. Under these circumstances, we conclude that the trial court in this action abused its discretion by awarding attorney fees, costs, and disbursements to plaintiff. King, 303 Mich.App. at 175, 841 N.W.2d 914.

Because we conclude that plaintiff did not violate the FOIA, that plaintiff's suit in the lower court was not necessary to compel defendant's production of documents, and that the lawsuit did not have a substantial causative effect on production of the documents, we also decline to award appellate attorney fees, costs, or disbursements in plaintiff's cross-appeal. See Rataj v. City of Romulus, 306 Mich.App. 735, 756, 858 N.W.2d 116 (2014).

We reverse the grant of summary disposition in favor of plaintiff, remand for the issuance of an order granting summary disposition in favor of defendant, and vacate the award of attorney fees, costs, and disbursements. We do not retain jurisdiction.

MARKEY, P.J., and OWENS, J., concurred with BOONSTRA, J.

Cramer v. Vill. of Oakley

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Cramer v. Vill. of Oakley

Cramer v. Vill. of Oakley

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Cramer v. Vill. of Oakley

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Cramer v. Vill. of Oakley

Cramer v. Vill. of Oakley

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