Attorney fees under the FOIA; MCL 15.240(6); Use of the date on which the requested records were disclosed as the cut-off date; Meredith Corp v City of Flint; Swickard v Wayne Cnty Med Exam’r; In re Sloan Estate; Hardy v Bureau of Alcohol, Tobacco, Firearms & Explosives (D DC); Woodman v Department of Corrs; Reduction; Use of the Pirgu v United Servs Auto Ass’n framework

Holding that the trial court did not abuse its discretion in using the date of disclosure as the cut-off for awarding plaintiff attorney fees under the FOIA, or in reducing the requested fees by 75%, the court affirmed. This was the third time the case had been before the court. The first issue here was whether plaintiff was “entitled to attorney fees incurred after [4/13/18], the date on which the requested records were disclosed, to litigate whether attorney fees are warranted under FOIA.” The court noted that neither it nor the Michigan “Supreme Court has directly answered” this question. It concluded it did not have to “resolve whether MCL 15.204(6) presumptively requires or prohibits an award of attorney fees incurred post-disclosure to establish entitlement to fees in the first instance. Even applying the” most favorable standard for plaintiff that the court found in the case law, “the trial court did not abuse its discretion in this particular case. Plaintiff’s post-disclosure presentation of the issues to the trial court and this Court has, in our view, needlessly protracted this litigation.” In addition, the court found that “the focus on whether defendant violated FOIA largely misses the mark as to plaintiff’s entitlement to attorney fees.” The Michigan Supreme Court recently addressed entitlement to attorney fees under MCL 15.240(6) in Woodman, and did not “reference a violation of FOIA as being a requirement for a recovery of attorney fees under that statute.” The standard of review for an attorney fees award under FOIA is abuse of discretion. The absence of Michigan case law “providing that the trial court is either required to award ‘fees for fees’ or prohibited from awarding such fees . . . suggests that the default principle is that an award of such fees remains within the trial court’s discretion.” In light of the case’s lengthy “procedural history” the court concluded “the trial court did not abuse its discretion by refusing to award plaintiff attorney fees incurred after [4/13/18], because plaintiff was largely responsible for prolonging the litigation.” As to the reduction in the fees awarded, “the trial court followed the Pirgu framework and determined that the awardable attorney fees should be reduced by 75%. After reviewing the” trial court record of the proceedings before 4/13/18, the court held that it did not abuse its discretion in doing so.