JOSEPH HALEY and EMILY HALEY, UNPUBLISHED
September 17, 1999
Plaintiffs-Appellants,
v No. 211648
Cheboygan Circuit Court
LC No. 97-006081 CZ
NUNDA TOWNSHIP,
Defendant-Appellee.
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Before: Murphy, P.J., and Gage and Wilder, JJ.
PER CURIAM.
This is an action brought pursuant to the Freedom of Information Act,
MCL 15.231 et seq.; MSA 4.1801 et seq. Following a bench trial, the trial
court found that defendant township released all documents requested by
plaintiffs that existed and were in defendant's possession before being
served with this lawsuit. Plaintiffs appeal as of right arguing that the
trial court erred in failing to award them attorney fees and punitive
damages under the act. We affirm.
Initially, plaintiffs argue that the trial court erred by failing to award
them attorney fees. The trial court's decision regarding an award of
attorney fees to the prevailing party in an FOIA action is reviewed for an
abuse of discretion. Messenger v Ingham Co Prosecutor, 232 Mich App 633,
647; 591 NW2d 393 (1998). The trial court in this case did not abuse its
discretion in refusing to award attorney fees. While the township was
untimely with two of three responses to the FOIA requests, plaintiffs'
lawsuit was neither necessary to their receipt of the documents nor caused
defendant to release the documents. Rather, all the items were received by
plaintiffs before service of the lawsuit on the township.
Pursuant to MCL 15.240(6); MSA 4.1801(10)(6), a plaintiff who prevails
in an FOIA action is entitled to attorney fees and costs. While an award of
reasonable attorney fees is mandatory when the plaintiff has prevailed
entirely in an FOIA action, the award of attorney fees is discretionary
with the court when a plaintiff has only partially prevailed. Tallman v
Cheboygan Area Schools, 183 Mich App 123, 131; 454 NW2d 171 (1990).
Conceding that they did not entirely prevail, plaintiffs contend that the
court's determination that the township was late in
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responding to two out of three FOIA requests requires an award of at least
those fees allocable to the successful portion of their case.
To be considered the prevailing party for the purposes of an attorney
fee award in an FOIA case, a plaintiff is required to show more than a
judgment in his or her favor. "A plaintiff prevails in an action brought
under the FOIA when the action was reasonably necessary to compel the
disclosure and the action had a substantial causative effect on the
delivery of the information to plaintiff " Oakland Co Prosecutor v Dep't of
Corrections, 222 Mich App 654, 663; 564 NW2d 922 (1997), citing Yarbrough v
Dep't of Corrections, 199 Mich App 180, 186; 501 NW2d 207 (1993). Pursuant
to this standard, despite the trial court's favorable ruling plaintiffs
needed to demonstrate that their lawsuit was necessary to effect the
release of the documents. Finding that all available documents were
released to plaintiffs prior to the service of the lawsuit on defendant,
the court did not find that the township wrongfully withheld documents and
it did not order the release of documents. Plaintiffs' action,
consequently, was not necessary to compel the disclosure and had no
causative effect on the delivery of the requested documents. As such,
plaintiffs are not prevailing parties for the purposes of attorney fees
under the act. See Wilson v Eaton Rapids 196 Mich App 671, 673; 493 NW2d
433 (1992).
Plaintiffs additionally support their claim for attorney fees with a
citation to MCL 15.235(3); MSA 4.1801(5)(3), which provides that the public
body's failure to respond to a request in the time or manner required by
the FOIA constitutes a final determination to deny the request. That
provision does not explicitly state that if a public body misses the
deadline any subsequent release of information is moot. We decline to so
interpret the statute because it would render nugatory the necessity and
causation requirements for an award of attorney fees under the statute.
Finally, plaintiffs argue that they are entitled to attorney fees in part
because the township's first and second responses did not include an
explanation of plaintiffs' review rights. While the FOIA requires an
explanation of a requesting party's right to seek review when a request is
denied by a written notice, MCL 15.235(4)(d); MSA 4.1801(5)(4)(d), this
portion of the statute is inapplicable because defendant provided
plaintiffs all documents in the township's possession and never issued a
denial.
Next, plaintiffs argue that the trial court erred in finding
defendant's acts were not "arbitrary and capricious," and therefore not
meriting an award of punitive damages. The trial court's finding that a
public body is not subject to the FOIA's punitive damages provision because
its actions were neither arbitrary nor capricious is reviewed for clear
error. Yarbrough, supra at 185; Tallman, supra at 126. An award of punitive
damages under the FOIA is only permissible when the trial court has ordered
disclosure. Michigan Council of Trout Unlimited v Dep't of Military
Affairs, 213 Mich App 203, 221; 539 NW2d 745 (1995). Here, the trial court
did not order disclosure because the requested documents had been released
by the township. Plaintiffs are not entitled to statutory punitive damages,
Affirmed.
/s/ William B. Murphy
/s/ Hilda R. Gage
/s/ Kurtis T. Wilder
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