STATE OF MICHIGAN
COURT OF APPEALS
PHAEDRA PETERSEN, UNPUBLISHED
May 1, 2018
Plaintiff-Appellant,
v No. 336301
Macomb Circuit Court
CHARTER TOWNSHIP OF SHELBY, LC No. 2014-001422-CZ
Defendant-Appellee.
Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.
PER CURIAM.
After remand, plaintiff, Phaedra Petersen, appeals as of right the trial court’s order
granting defendant, the Charter Township of Shelby, summary disposition of her claim for
attorney fees and costs under Michigan’s Freedom of Information Act (FOIA), MCL 15.231 et
seq. We reverse the order of the trial court, and remand for entry of an order granting plaintiff
attorney fees and costs.
I. FACTS
This matter is returning to this Court after remand to the trial court. In Petersen v
Charter Twp of Shelby, unpublished per curiam opinion of the Court of Appeals, issued April 28,
2016 (Docket No. 323868), this Court affirmed in part and reversed in part the trial court’s order
granting defendant summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10). In
our opinion in that appeal, we summarized the pertinent facts as follows:
This case arose from plaintiff’s attempts to obtain police records from the
Shelby Township Police Department. On February 18, 2014, plaintiff presented a
written request (dated February 17, 2014) seeking documents and police reports
related to a retail fraud investigation involving allegations that a certain individual
shoplifted from a Kohl’s department store. While defendant disclosed documents
in response to plaintiff’s request at a cost of $62.00, plaintiff claims that the
disclosed documents were not the documents she was seeking.
On March 10, 2014, plaintiff submitted another record request (dated
March 7, 2014), in which she specifically requested “pursuant to the state open
records act,” “access to and copies of case 11-41282 for retail fraud.” Plaintiff
alleges that, four days later, a Shelby Township employee told her that documents
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related to Case No. 11-41282 would not be disclosed because the case—entailing
an incident that occurred in 2011—was still under investigation and plaintiff had
not made an “official” FOIA request for the documents. No additional documents
were provided to plaintiff in response to her second request.
On April 8, 2014, plaintiff’s counsel submitted an online FOIA request on
plaintiff’s behalf requesting “all documents related to Shelby Police Department
(SPD) incident report #11-41282,” as well as “all SPD dispatch and run reports
for the day in which report #11-41282 was created,” and “all records, audio
recordings of telephone calls between Phaedra Petersen and ‘Grace,’ at Shelby
Twp.”
On April 11, 2014, plaintiff filed a complaint alleging (1) a FOIA
violation with respect to the February 18, 2014 record request, (2) a FOIA
violation with respect to the March 10, 2014 record request, and (3) a claim for
declaratory judgment that the Shelby Township Police Department is not subject
to any FOIA exemptions with respect to Case No. 11-41282 and that defendant
has failed to meet its burden of demonstrating a valid exemption to disclosure.
On April 15, 2014, defendant produced the incident report in its Case No.
11-41282.
Plaintiff moved for summary disposition under MCR 2.116(C)(9) and
(10), and for attorney fees and costs under MCL 15.240, MCR 2.114(E), and
MCL 600.2591. Defendant moved for summary disposition under MCR
2.116(C)(7), (8), and (10). Although the parties noticed their motions for a
hearing, no such hearing took place. Instead, the trial court issued a written
opinion and order granting summary disposition to defendant and denying
plaintiff’s motion. [Petersen, unpub op at 1-2 (footnotes omitted).]
Plaintiff appealed the trial court’s order to this Court. In that appeal, this Court held that
the trial court correctly determined that plaintiff was not entitled to statutory damages under
MCL 15.240(7). This Court further held that because defendant had ultimately disclosed the
requested records, the trial court correctly determined that plaintiff was not entitled to an order
compelling production of the records, nor to other declaratory relief. Id. at 3-5. This Court
reversed the trial court’s order granting defendant summary disposition of plaintiff’s request for
attorney fees and costs, however, and remanded that issue to the trial court. This Court
explained:
[T]o be entitled to attorney fees and costs, a plaintiff must prevail “in its assertion
of the right to inspect, copy, or receive a copy of all or a portion of a public
record.” Local Area Watch [ v City of Grand Rapids], 262 Mich App [136,] 149
[;683 NW2d 745 (2004)]. The test is whether (1) the action was reasonably
necessary to compel the disclosure, and (2) the action had the substantial
causative effect on the delivery of the information to the plaintiff. Id.
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In this case, the trial court denied plaintiff’s request for attorney fees and
costs on the ground that the court never made a finding that the requested
documents were subject to disclosure under FOIA, “nor was it requested to do
so.” The trial court never determined whether the requested documents were
subject to disclosure under FOIA because defendant released the documents four
days after the complaint was filed. This Court has held, however, that “the
disclosure of the records after plaintiff commenced the circuit court action
rendering the FOIA claim moot as to the late-disclosed items does not void
plaintiff’s entitlement to fees and costs under [MCL 15.240(6)].” Local Area
Watch, 262 Mich App at 150. Therefore, even though the requested documents
had been disclosed to plaintiff, the trial court should have determined whether the
documents were subject to FOIA disclosure for the purpose of determining
plaintiff’s right to attorney fees and costs.
Furthermore, the trial court erred in finding that plaintiff did not request a
determination that the documents were subject to disclosure under FOIA. In her
motion for summary disposition, plaintiff argued that she was entitled to attorney
fees and costs because no exemption justified the failure to disclose the requested
documents. Therefore, contrary to the trial court’s finding, plaintiff requested a
determination whether the requested documents were subject to disclosure under
FOIA. Without making this determination, the trial court could not properly
determine whether plaintiff was entitled to attorney fees and costs. Accordingly,
we remand this case to the trial court for a determination of (1) whether the
requested documents were subject to disclosure under FOIA, (2) whether the
action was reasonably necessary to compel the disclosure, and (3) whether the
action had the substantial causative effect on the delivery of the information to
plaintiff. [Petersen, unpub op at 4-5.]
On remand to the trial court, the parties submitted briefs addressing the questions
articulated by this Court regarding attorney fees and costs. Plaintiff, however, also filed a
motion to compel responses to previous discovery requests. Defendant responded by filing a
motion to strike plaintiff’s motion to compel, and also to strike portions of plaintiff’s brief before
the trial court.
After a hearing, the trial court granted defendant summary disposition on the question of
attorney fees and costs. The trial court found that the records requested by plaintiff were exempt
from disclosure. The trial court reasoned that at the time of the February 2014 request, the
investigation by the police department was ongoing and that under MCL 15.243(1)(b)(i), the
requested records therefore were exempt as investigating records compiled for law enforcement
purposes, the disclosure of which would interfere with law enforcement proceedings The trial
court also held that the records were exempt at the time of all requests under MCL
15.243(1)(b)(iii), because they were investigating records compiled for law enforcement
purposes, the disclosure of which would constitute an unwarranted invasion of personal privacy.
The trial court further held that plaintiff was not entitled to attorney fees and costs
because the legal action was neither reasonably necessary to compel disclosure of the records,
nor did it have a substantial causative effect on the disclosure of the records. The trial court
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reasoned that because the records were exempt from disclosure, plaintiff could not “prevail” in
the action within the meaning of the statute. The trial court further reasoned that because the
records had been disclosed after plaintiff’s April 2014 request, the lawsuit was not reasonably
necessary to compel the disclosure nor a substantial causative effect on the delivery of the
information to plaintiff. The trial court therefore concluded that plaintiff was not entitled to
mandatory attorney fees and costs under MCL 15.240(6), and that it would not exercise its
discretion to award any attorney fees under that same provision. The trial court also denied
plaintiff’s motion to compel and defendant’s motion to strike. Plaintiff now appeals to this Court
from the trial court’s order.
II. DISCUSSION
A. ATTORNEY FEES AND COSTS
On appeal, plaintiff contends that the trial court erred in granting defendant summary
disposition of her claim for attorney fees and costs.1 Plaintiff argues that the trial court erred in
determining that the records in question were exempt from disclosure. She also contends that the
lawsuit was reasonably necessary to compel disclosure of the records, as well as a substantial
causative factor in the ultimate disclosure of the records, and that she therefore is entitled to
attorney fees and costs under MCL 15.240(6). We conclude that the requested records were
exempt from disclosure, but also conclude that plaintiff nonetheless was entitled to attorney fees
and costs under the FOIA.
1. STANDARD OF REVIEW
We review de novo the trial court’s interpretation and application of the FOIA. ESPN,
Inc v Mich State Univ, 311 Mich App 662, 664; 876 NW2d 593 (2015). Generally, whether a
record is exempt from disclosure is a mixed question of fact and law, but if the facts are
undisputed and reasonable minds could not differ, the question whether a public record is exempt
under FOIA is a question of law for the court. Rataj v City of Romulus, 306 Mich App 735, 747-
748; 858 NW2d 116 (2014). The trial court’s factual determinations in a FOIA action, if any, are
reviewed for clear error. King v Mich State Police Dep’t, 303 Mich App 162, 174; 841 NW2d
914 (2013).
We also review de novo a trial court’s grant or denial of summary disposition. Arabo v
Mich Gaming Control Bd, 310 Mich App 370, 382; 872 NW2d 223 (2015). Here, plaintiff
moved for summary disposition pursuant to MCR 2.116 (C)(9) and (10), and we conclude that
she was entitled to summary disposition under both subsections. A motion for summary
disposition brought pursuant to MCR 2.116(C)(9) tests the sufficiency of the defendant’s
pleadings, and is properly granted when the defendant has failed to state a valid defense to the
1
Plaintiff also contends that the trial court erred in denying her motion to compel discovery. The
trial court properly denied this motion as outside the scope of this Court’s remand order.
International Business Machines Corp v Dep’t of Treasury, 316 Mich App 346, 350; 891 NW2d
880 (2016). For the same reason, we decline to reach that issue in this appeal.
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claim. Payne v Farm Bureau Ins, 263 Mich App 521, 525; 688 NW2d 327 (2004). A motion for
summary disposition under MCR 2.116(C)(10) is properly granted when, except as to damages,
there is no genuine issue regarding any material fact and the moving party is entitled to judgment
as a matter of law. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012).
2. DISCLOSURE UNDER FOIA
Under Michigan’s FOIA, “all persons . . . are entitled to full and complete information
regarding the affairs of government and the official acts of those who represent them as public
officials and public employees, consistent with this act.” MCL 15.231(2); see also Amberg v
Dearborn, 497 Mich 28, 30; 850 NW2d 674 (2014). Michigan’s FOIA therefore generally
mandates the full disclosure of public records in the possession of a public body. Ellison v Dep’t
of State, 320 Mich App 169, 176; 906 NW2d 221 (2017) Michigan’s FOIA is thus described as
a pro-disclosure statute. Thomas v New Baltimore, 254 Mich App 196, 201; 657 NW2d 530
(2003).
The FOIA sets forth specific requirements for a public body responding to a request for
information. Id. When a request for records is made under FOIA, a public body has a duty to
provide access to or copies of the requested records, unless those records are exempt from
disclosure. Pennington v Washtenaw Co Sheriff, 125 Mich App 556, 564; 336 NW2d 828
(1983). MCL 15.235 provides, in relevant part:
(2) 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.
(3) Failure to respond to a request pursuant to subsection (2) constitutes a public
body’s final determination to deny the request if either of the following applies:
(a) The failure was willful and intentional.
(b) The written request included language that conveyed a request for
information within the first 250 words of the body of a letter, facsimile, electronic
mail, or electronic mail attachment, or specifically included the words, characters,
or abbreviations for “freedom of information”, “information”, “FOIA”, “copy”, or
a recognizable misspelling of such or appropriate legal code reference to this act,
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on the front of an envelope or in the subject line of an electronic mail, letter, or
facsimile cover page.
When a public body denies a request under FOIA, the burden is upon that public body to
justify the denial. Thomas, 254 Mich App at 203. MCL 15.235(5) requires a public body
denying a request “in whole or in part” to send a written notice to the person making the request,
including:
(a) An explanation of the basis under this act or other statute for the
determination that the public record, or a portion of that public record, is exempt
from disclosure, if that is the reason for denying all or a portion of the request.
(b) A certificate that the public record does not exist under the name given
by the requester or by another name reasonably known to the public body, if that
is the reason for denying the request or a portion of the request.
Thus, when a public body denies a request, the public body is required to explain in
writing the basis for denying disclosure of the record. MCL 15.235(5). If the reason for denial
is that the record is exempt from disclosure, the public body must explain the basis for the
exemption. MCL 15.235(5)(a). Similarly, if the reason for the denial of the request is that the
record does not exist, the public body must certify that the record does not exist. MCL
15.235(5)(b). A public body’s failure to timely respond to a request for records constitutes a
denial of the request. Local Area Watch v Grand Rapids, 262 Mich App 136, 150; 683 NW2d
745 (2004). The purpose of this requirement is to prevent a public body from using silence
effectively to deny a FOIA request, necessitating a lawsuit by the requester to force production
of the record or to discover the reason for the denial. See Key v Twp of Paw Paw, 254 Mich App
508, 511; 657 NW2d 546 (2003).
In this case, plaintiff requested records from defendant in March 2014. Defendant was
required by FOIA either to produce the records or to deny the request in writing, stating the basis
for the denial. MCL 15.235(5). Defendant, apparently concluding that the requested records
were exempt from disclosure, failed to either produce the records or to deny the request in
writing within the time period established by the statute. Because defendant was required by the
FOIA to respond to plaintiff’s request regardless of the exemption status of the documents
requested, defendant’s failure to respond to the March 2014 request violated the FOIA.
3. EXEMPTION FROM DISCLOSURE
A request for public records made pursuant to FOIA must be fulfilled unless MCL 15.243
lists an applicable exemption. Coblentz v Novi, 475 Mich 558, 573; 719 NW2d 73 (2006). In
that regard, MCL 15.243 provides, in relevant part:
(1) A public body may exempt from disclosure as a public record under this act
any of the following:
(a) Information of a personal nature if public disclosure of the information would
constitute a clearly unwarranted invasion of an individual’s privacy.
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(b) Investigating records complied for law enforcement purposes, but only to the
extent that disclosure as a public record would do any of the following:
(i) Interfere with law enforcement proceedings.
(ii) Deprive a person of the right to a fair trial or impartial administrative
adjudication.
(iii) Constitute an unwarranted invasion of personal privacy.
In this case, we remanded to the trial court to decide whether plaintiff was entitled to
attorney fees and costs under FOIA, including a decision whether the requested records were
exempt from disclosure under FOIA. On remand, the trial court determined that the requested
records were exempt from disclosure. The trial court first found that at the time of the February
2014 request, the requested records related to an investigation that was still classified as “open”
by law enforcement and therefore the records were exempt from disclosure under MCL
15.243(1)(b)(i) as investigating records compiled for law enforcement purposes, the disclosure of
which would interfere with law enforcement proceedings. The record, however, does not
support this conclusion in light of the test set forth in Evening News Ass’n v City of Troy, 417
Mich 481, 503; 339 NW2d 421 (1983).
In Evening News, our Supreme Court held that it was not sufficient to demonstrate an
exemption under MCL 15.243(1)(b)(i) to simply determine that disclosure of the requested
records would interfere with law enforcement proceedings. See also King v Oakland Co
Prosecutor, 303 Mich App 222, 227; 842 NW2d 403 (2013). Rather, the Court identified six
factors for consideration by a court analyzing a claimed exemption under MCL 15.243(1)(b)(i):
1. The burden of proof is on the party claiming exemption from
disclosure.
2. Exemptions must be interpreted narrowly.
3. [T]he public body shall separate the exempt and nonexempt
material and make the nonexempt material available for examination and copying.
4. [D]etailed affidavits describing the matters withheld must be
supplied by the agency.
5. Justification of exemption must be more than conclusory, i.e.,
simple repetition of statutory language. A bill of particulars is in order.
Justification must indicate factually how a particular document, or category of
documents, interferes with law enforcement proceedings.
6. The mere showing of a direct relationship between records sought
and an investigation is inadequate. [Evening News, 417 Mich at 503 (quotation
marks and citations omitted; alterations in original).]
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Here, the parties do not dispute that at the time of the February 2014 request, the records
in question were part of a 2011 police investigation that was still clerically marked as “open” by
defendant. A review of the record, however, indicates that defendant did not demonstrate
specifically how the requested records or portions of the requested records would interfere with
law enforcement proceedings, and no delineation was made between exempt and nonexempt
portions of the records requested. Because mere conclusory language that the case was marked
“open” by defendant is not sufficient to demonstrate that disclosure would interfere with law
enforcement proceedings, defendant did not meet its burden of proving that the requested records
were exempt under MCL 15.243(1)(b)(i).
The trial court, however, also found that the requested records were exempt at the time of
both the February and the March 2014 requests under MCL 15.243(1)(b)(iii) because the records
were investigating records compiled for law enforcement purposes, and disclosure of the
requested records would constitute an unwarranted invasion of personal privacy. In this case, it
is undisputed that the records, which all stem from an arrest and the subsequent investigation, are
“investigating records compiled for law enforcement purposes . . . .” MCL 15.243(1)(b)(iii).
Thus, the only question is whether the disclosure of such records would “[c]onstitute an
unwarranted invasion of personal privacy.” MCL 15.243(1)(b)(iii).
Our goal in interpreting a statute is to discern and give effect to the intent of the
Legislature, first focusing upon the plain language of that statute. Madugula v Taub, 496 Mich
685, 696; 853 NW2dd 75 (2014). “Unless otherwise defined in the statute, or understood to have
a technical or peculiar meaning in the law, every word of phrase of a statute will be given its
plain and ordinary meaning.” Landry v Dearborn, 259 Mich App 416, 421; 674 NW2d 697
(2004). In light of the dearth of authority specifically on point, the parties and the trial court in
this case understandably rely on cases interpreting MCL 15.243(1)(a), which exempts from
disclosure “[i]nformation of a personal nature if public disclosure of the information would
constitute a clearly unwarranted invasion of an individual’s privacy.” Generally, it is proper to
interpret statutes with identical language in an identical manner when those statutes are part of
the same act. People v Wiggins, 289 Mich App 126, 128-129; 795 NW2d 232 (2010).
The relevant language of MCL 15.243(1)(a) (the privacy exemption) and MCL
15.243(1)(b)(iii) (the law enforcement purposes privacy exemption), though not identical, is
similar. The exemption provided in MCL 15.243(1)(b)(iii), does not contain the specific
language of subsection (1)(a), which requires that the information be “of a personal nature.”
Herald Co, Inc v Kalamazoo, 229 Mich App 376, 388; 581 NW2d 295 (1998). Further, MCL
15.243(1)(a) states that the disclosure must “clearly” amount to an “unwarranted invasion of an
individual’s privacy,” while MCL 15.243(1)(b)(iii) omits the modifier “clearly,” and refers to an
“unwarranted invasion of personal privacy.” See Pennington, 125 Mich App at 566. Omissions
in statutory language are “deemed to be intentional.” Johnson v Marks, 224 Mich App 356, 358;
568 NW2d 689 (1997). Omitting the word “clearly” from the exemption at issue in this case,
MCL 15.243(1)(b)(iii), would seem to indicate our Legislature’s intention that when
investigative records are at issue, a lesser showing that disclosure would be an unwarranted
invasion of privacy is required for the exemption to apply. See Herald Co v Bay City, 463 Mich
111, 126; 614 NW2d 873 (2000) (explaining that, with regard to MCL 15.243(1)(a), “[b]y
providing that the invasion of privacy must be clearly unwarranted, the Legislature has
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unmistakably indicated that the intrusion must be more than slight, but a very significant one
indeed”).
Under MCL 15.243(1)(a), the public body first must establish that the information is of a
“personal nature,” meaning that the information is “intimate, embarrassing, private, or
confidential.” Bitterman v Oakley, 309 Mich App 53, 62; 868 NW2d 642 (2015) (quotation
marks and citation omitted). The second inquiry is whether public disclosure of this information
“would constitute a clearly unwarranted invasion of an individual’s privacy.” MCL
15.243(1)(a); ESPN, Inc, 311 Mich App at 664. To answer this question, a court must “balance
the public interest in disclosure against the interest [the Legislature] intended the exemption to
protect. . . [T]he only relevant public interest in disclosure to be weighed in this balance is the
extent to which disclosure would serve the core purpose of the FOIA, which is contributing
significantly to public understanding of the operations or activities of the government.” Rataj,
306 Mich App at 751 (citation omitted). Most often, the public’s interest in disclosure outweighs
the individual’s expectation of privacy. Bitterman, 309 Mich App at 64. But “[r]equests for
information on private citizens accumulated in government files that reveal little to nothing about
the inner working of government will fail this balancing test.” ESPN, 311 Mich App at 669
(citations omitted).
Even applying what would seem to be the more disclosure-friendly language of MCL
15.243(1)(a) and the cases analyzing that provision, however, indicates that the records sought
by plaintiff in this case were exempt from disclosure. Here, the records sought relate to the
arrest of an individual who was never prosecuted for that offense, which doubtless is a matter of
personal privacy. This Court has held that “people linked with a crime, whether as a perpetrator,
witness, or victim, have an interest in not sharing this information with the public.” State News v
Mich State Univ, 274 Mich App 558, 578; 735 NW2d 649 (2007), rev’d in part on other grounds
481 Mich 692 (2008).
Moreover, the records requested in this case would not contribute significantly to the
public’s understanding of the operations of the Shelby Township Police Department. Plaintiff
argues that the records show that defendant provides certain individuals preferential treatment,
and that the refusal to pursue charges against the suspect was the result of favoritism or partiality
not shown to other similarly situated arrestees. The records, however, show no such conduct.
Rather, the records requested only demonstrate that one individual was arrested for a
misdemeanor offense, and after the victim declined to move forward with the case, the charges
were dropped. The very nature of plaintiff’s requests, which sought arrest records for only one
person and not those of similarly situated individuals, demonstrates that the records could not
show the comparison of the suspect’s treatment to that of others similarly situated.
Plaintiff also argues that because the suspect is an attorney, the public has an interest in
her misdeeds that is sufficient to warrant disclosure. Plaintiff cites no authority for such a
proposition, thereby abandoning the issue. Prince v MacDonald, 237 Mich App 186, 197; 602
NW2d 834 (1999). In any event, the argument lacks merit. “The only relevant public interest in
disclosure to be weighed in this balance is the extent to which disclosure would serve the core
purpose of the FOIA, which is contributing significantly to public understanding of the
operations or activities of government.” ESPN, Inc, 311 Mich App at 669 (quotation marks,
brackets, and citations omitted). Here, the suspect was not operating in any governmental
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capacity when she was apprehended. The fact that she is an attorney in no way renders
disclosure of her arrest and criminal investigation records a disclosure that would further the
public’s understanding of government operations.
Moreover, the interests supporting disclosure must also be balanced against the privacy
interests of those mentioned in the requested documents. There is doubtless a privacy interest in
having arrest records remain private. Indeed, as was explained in OAG, 1979-1980, No. 5500, p
282 (July 23, 1979):
The fact that a person has been arrested is neither a determination of guilt
nor a decision that a prosecuting attorney will decide to charge him with
committing a crime. Therefore, unless the person requesting the information can
demonstrate a public benefit in the disclosure of the fact that a person has been
arrested without a warrant, the damage to the individual’s privacy overcomes the
need for the public to have this information. I am, therefore, of the opinion that a
law enforcement agency may refuse to release the name of a person who has been
arrested, but not charged, in a complaint or information, with the commission of a
crime.
Though not binding upon this Court, Danse Corp v Madison Hts, 466 Mich 175, 182 n 6; 644
NW2d 721 (2002), we consider that an opinion of this state’s Attorney General can serve as
persuasive authority. Williams v Rochester Hills, 243 Mich App 539, 557; 625 NW2d 64 (2000).
We agree with the opinion of the attorney general in this instance to the extent that it opines that
there exists a privacy interest in keeping the fact of an arrest private when charges are not
pursued.
As plaintiff has not identified any relevant interests in public disclosure, the trial court
correctly found that the records at issue in this case were exempt from disclosure under MCL
15.243(1)(b)(iii). See Herald Co, 463 Mich at 126-127 (“[F]ulfilling a request for personal
information concerning private citizens, where the request was entirely unrelated to any inquiry
regarding the inner working of government, would constitute a clearly unwarranted invasion of
privacy. . . . [W]hen the information sought is embarrassing or intimate, and the relationship
between the personal information to be disclosed and the operations of our government is slight,
the weaker is the case that disclosure should be made under the FOIA.”) (quotation marks and
citation omitted).
3. PREVAILING PARTY
As discussed, we remanded this case to the trial court to determine whether plaintiff was
entitled to costs and attorney fees under FOIA. If a public body denies all or part of a request for
records, the requesting person may commence a civil action in circuit court. MCL 15.240(1)(b).
If the requesting person thereafter “prevails” in that action, MCL 15.240(6) provides for the
award of attorney fees, costs, and disbursements as follows:
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
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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).
If a plaintiff prevails completely in his or her FOIA action, the award of attorney fees by
the trial court is mandatory. Estate of Nash v Grand Haven, 321 Mich App 587, ___; ___ NW2d
___ (2017), slip op at 7. If a party prevails partially in the FOIA action, the decision to award
attorney fees is discretionary with the trial court. Local Area Watch, 262 Mich App at 151.
The test of whether one has “prevailed” under MCL 15.240(6) is whether “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. Even if a requested record is not subject to disclosure, however, the person
requesting the record may nonetheless “prevail” in a FOIA action if the action was necessary to
compel the public body to properly respond to the request. If a public body fails to adequately
respond to a plaintiff’s request for records, and that failure necessitates the plaintiff bringing a
circuit court action under the FOIA to compel an adequate response from the public body, that
plaintiff may “prevail” within the meaning of MCL 15.240(6) even if the FOIA action did not
result in the plaintiff receiving additional records. Hartzell v Mayville Comm School Dist, 183
Mich App 782, 789; 455 NW2d 411 (1990) (even though the action did not have a “causative
effect on the delivery of or access to the document, it had a causative effect on the disclosure of
the nonexistence of the requested document”); see also Key, 254 Mich App at 511. Further, even
when the records requested are exempt from disclosure, the plaintiff may be determined to have
“prevailed” within the meaning of MCL 15.240(6) if the public body violates FOIA by failing to
properly respond to the request as mandated by the statute. Local 312 of American Federation of
State, County, & Municipal Employees, AFL-CIO v Detroit, 207 Mich App 472, 474; 525 NW2d
487 (1995).
In this case, defendant argues, and the trial court determined on remand, that the
requested records were exempt from disclosure. We agree that the records were exempt from
disclosure under MCL 15.243(1)(b)(iii). Defendant further argues, and the trial court found on
remand, that because the records were exempt from disclosure, plaintiff was not entitled to
attorney fees and costs. We disagree.
As discussed, a valid exemption from disclosure is not a defense to a failure to properly
and timely respond to a request for records in compliance with FOIA. Rather, defendant was
obligated to respond timely to the request, explaining the basis for the denial. MCL
15.235(5)(a). Even though the records were exempt from disclosure, if defendant’s failure to
respond adequately to plaintiff’s request for records necessitated plaintiff bringing the circuit
court action under the FOIA to compel defendant’s obligatory response, plaintiff may “prevail”
within the meaning of MCL 15.240(6). Hartzell, 183 Mich App at 789; Local 312, 207 Mich
App at 474.
To determine whether plaintiff “prevailed” within the meaning of the act, we ask whether
“the action was reasonably necessary to compel the disclosure [of public records],” and whether
“the action had a substantial causative effect on the delivery of the information to the plaintiff.”
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Amberg, 497 Mich at 34. We conclude that the answer to both inquiries is affirmative. In this
case, it is undisputed that plaintiff requested the records in question in February 2014, and
defendant responded but did not include the relevant records. Plaintiff requested the records
more specifically in March 2014, and defendant failed to respond, either by granting or denying
the request, within the time provided by statute. Plaintiff again requested the records in April
2014. Before the time for responding to the April request had elapsed, plaintiff filed an action in
the trial court seeking disclosure of the records and also seeking attorney fees and costs for the
denial of the February and March 2014 requests. Defendant thereafter disclosed the requested
records.
Defendant argues, and the trial court found on remand, that defendant disclosed the
records to plaintiff in response to the April request and not in response to the lawsuit. We find
this argument unpersuasive. When a public body fails to respond timely to a FOIA request, the
public body violates FOIA. When that public body fails to respond to the request until after the
plaintiff brings a circuit court action to compel a response, the plaintiff has a strong argument
that the circuit court action was reasonably necessary to compel the defendant’s response, and
was a substantial causative effect in the disclosure. We further note that when a public body fails
to respond to a request for records, thereby denying the request, the plaintiff’s resubmission of
the request does not divest the plaintiff of the ability to pursue his or her remedies under MCL
15.240(1) regarding the earlier denied request, such as commencing a civil action in the circuit
court. Scharret v Berkley, 249 Mich App 405, 413; 642 NW2d 685 (2002); in accord, Krug v
Ingham Co Sherriff’s Office, 264 Mich App 475, 482; 691 NW2d 50 (2005). Plaintiff’s April
2014 request for the records therefore did not impede her ability to pursue a circuit court action
regarding defendant’s failure to respond to her earlier requests.
In summary, defendant violated the FOIA when it failed to respond to plaintiff’s March
2014 records request by either disclosing the records or issuing a written denial explaining the
reason for the denial. MCL 15.235(5). Defendant’s failure to respond to the request necessitated
plaintiff bringing an action before the trial court to obtain a response from defendant. Although
we conclude that the requested records were exempt from disclosure, plaintiff nonetheless
prevailed in her action before the trial court within the meaning of the statute because the action
had a “causative effect” on compelling a response from defendant to plaintiff’s March 2014
request.
Reversed and remanded for entry of an order awarding plaintiff attorney fees and costs.
We do not retain jurisdiction.
/s/ Michael J. Riordan
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
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