STATE OF MICHIGAN

COURT OF APPEALS



					

					
					

					
JOSEPH HALEY and EMILY HALEY,                UNPUBLISHED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.
______________________________________________

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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