Estate of Chance Aaron Nash v. City of Grand Haven

STATE OF MICHIGAN

COURT OF APPEALS

ESTATE OF CHANCE AARON NASH, by FOR PUBLICATION

DIANE NASH, Personal Representative, October 10, 2017

9:10 a.m.

Plaintiff-Appellant,

v No. 336907

Ottawa Circuit Court

CITY OF GRAND HAVEN, LC No. 16-004454-NZ

Defendant-Appellee.

Before: MURRAY, P.J., and SAWYER and MARKEY, JJ.

MARKEY, J.

Plaintiff Diane Nash, as personal representative of the Estate of Chance Aaron Nash,

sought certain documents and information under the Michigan Freedom of Information Act

(FOIA), MCL 15.231 et seq., from defendant, the city of Grand Haven. Following an in camera

review of documents that the city claimed were subject to the attorney-client privilege and a

bench trial related to 12 documents the trial court identified during its in camera review as

requiring further explanation, the trial court ordered the city to produce some documents to

plaintiff and ruled that others were exempt from disclosure because they were subject to the

attorney-client privilege. The trial court concluded that plaintiff prevailed in part on her FOIA

claim but was not entitled to attorney fees. Plaintiff now appeals by right. We affirm.

The instant case is one of a series of lawsuits related to the death of Chance Aaron Nash,

who was involved in a fatal sledding accident on December 31, 2009, at Duncan Park in the city

of Grand Haven. In the underlying tort litigation, plaintiff has sued the Duncan Park

Commission, the Duncan Park Trustees, the individual trustees, and Duncan Park groundskeeper

Robert DeHare.

Plaintiff’s original FOIA request sought documents and information from the city related

to the accident, the underlying tort litigation, Duncan Park, and the employment of DeHare. The

city denied plaintiff’s request in part, stating that it did not have information or documents

related to DeHare’s employment because he was not an employee of the city and that some

information and records were exempt from disclosure pursuant to MCL 15.243(1)(g) because

they were subject to attorney-client privilege. Plaintiff filed the instant FOIA lawsuit while the

underlying tort litigation was still pending. Plaintiff’s complaint alleged that the city “denied, in

part, Plaintiff’s request, claiming the documents in its possession were exempt from disclosure as

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being subject to the attorney-client privilege” and that “[t]he requested public records are not

exempt from disclosure and [the city] has arbitrarily and capriciously violated the FOIA.”

Plaintiff did not base her claim of a FOIA violation on any other ground.

On appeal, plaintiff first argues that the trial court erred by applying federal precedent

regarding the common-interest doctrine of the attorney-client privilege. We disagree.

An appellate court “reviews de novo whether the trial court properly interpreted and

applied FOIA.” ESPN, Inc v Mich State Univ, 311 Mich App 662, 664; 876 NW2d 593 (2015).

“Whether a public record is exempt from disclosure under the FOIA is a mixed question of fact

and law, and we review the trial court’s factual findings for clear error and review questions of

law de novo.” Local Area Watch v Grand Rapids, 262 Mich App 136, 142; 683 NW2d 745, 749

(2004) (quotation marks and citation omitted). Under the clear error standard of review, “the

appellate court must defer to the trial court’s view of the facts unless the appellate court is left

with the definite and firm conviction that a mistake has been made by the trial court.” King v

Oakland Co Prosecutor, 303 Mich App 222, 225; 842 NW2d 403 (2013) (quotation marks and

citation omitted). “Whether the attorney-client privilege applies to a communication is a

question of law that we review de novo.” Krug v Ingham Co Sheriff's Office, 264 Mich App 475,

484; 691 NW2d 50 (2004).

“Michigan courts have interpreted the policy of the FOIA as one of full disclosure of

public records unless a legislatively created exemption expressly allows a state agency to avoid

its duty to disclose the information.” Messenger v Consumer & Indus Servs, 238 Mich App 524,

531; 606 NW2d 38 (1999). “Consistent with the FOIA’s underlying policies, a public body is

required to grant full disclosure of its records, unless they are specifically exempt under MCL

15.243.” Detroit Free Press, Inc v Southfield, 269 Mich App 275, 281; 713 NW2d 28 (2005).

“In construing the provisions of the act, [courts must] keep in mind that the FOIA is intended

primarily as a prodisclosure statute and the exemptions to disclosure are to be narrowly

construed.” Swickard v Wayne Co Med Examiner, 438 Mich 536, 544; 475 NW2d 304 (1991).

“Also, when a public body refuses to disclose a requested document under the act, and the

requester sues to compel disclosure, the public agency bears the burden of proving that the

refusal was justified under the act.” Id. See also MCL 15.240(4). “When ruling whether an

exemption under the FOIA prevents disclosure of particular documents, a trial court must make

particularized findings of fact indicating why the claimed exemption is appropriate.” Messenger,

238 Mich App at 532.

Section 13, MCL 15.243(1)(g), states as follows:

(1) A public body may exempt from disclosure as a public record under

this act any of the following:

* * *

(g) Information or records subject to the attorney-client privilege.

“The attorney-client privilege attaches to communications made by a client to an attorney

acting as a legal adviser and made for the purpose of obtaining legal advice.” Herald Co, Inc v

Ann Arbor Pub Schs, 224 Mich App 266, 279; 568 NW2d 411 (1997). “The attorney-client

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privilege is designed to permit a client to confide in his attorney, knowing that his

communications are safe from disclosure.” McCartney v Attorney General, 231 Mich App 722,

730; 587 NW2d 824 (1998). “The scope of the privilege is narrow: it attaches only to

confidential communications by the client to its advisor that are made for the purpose of

obtaining legal advice.” Herald Co, 224 Mich App at 279. “When the client is an organization,

the privilege attaches to communications between the attorney and any employee or agent

authorized to speak on its behalf in relation to the subject matter of the communication.” Krug,

264 Mich App at 485 (quotation marks and citation omitted). Typically, “[o]nce otherwise

privileged information is disclosed to a third party by the person who holds the privilege, or if an

otherwise confidential communication is necessarily intended to be disclosed to a third party, the

privilege disappears.” Leibel v Gen Motors Corp, 250 Mich App 229, 242; 646 NW2d 179

(2002) (quotation marks and citation omitted; alteration in original).

“The attorney–client privilege is the oldest of the privileges for confidential

communications known to the common law.” Upjohn Co v United States, 449 US 383, 389; 101

S Ct 677; 66 L Ed 2d 584 (1981). This Court looks to federal precedent for guidance in

determining the scope of the attorney-client privilege when a particular issue has been addressed

by a federal court. See, e.g., Leibel, 250 Mich App at 236-237; Reed Dairy Farm v Consumers

Power Co, 227 Mich App 614, 619-620; 576 NW2d 709 (1998).

Both the trial court, in its December 22, 2016 order, and the city on appeal relied on

United States v BDO Seidman, LLP, 492 F3d 806, 814-817 (CA 7, 2007), in which the United

States Court of Appeals for the Seventh Circuit outlined the application of the common-interest

doctrine to the attorney-client privilege as follows:

Although it ultimately was not adopted by Congress, the rule of attorney-client

privilege promulgated by the Supreme Court in 1972 as part of the Proposed

Federal Rules of Evidence has been recognized “as a source of general guidance

regarding federal common law principles.” Proposed Rule 503 provided:

A client has a privilege to refuse to disclose and to prevent

any other person from disclosing confidential communications

made for the purpose of facilitating the rendition of professional

legal services to the client, (1) between himself or his

representative and his lawyer or his lawyer’s representative, or (2)

between his lawyer and the lawyer’s representative, or (3) by him

or his lawyer to a lawyer representing another in a matter of

common interest, or (4) between representatives of the client or

between the client and a representative of the client, or (5) between

lawyers representing the client.

Put simply, in order for the attorney-client privilege to attach, the

communication in question must be made: (1) in confidence; (2) in connection

with the provision of legal services; (3) to an attorney; and (4) in the context of an

attorney-client relationship.

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The purpose of the privilege is to “encourage full disclosure and to

facilitate open communication between attorneys and their clients.” Open

communication assists lawyers in rendering legal advice, not only to represent

their clients in ongoing litigation, but also to prevent litigation by advising clients

to conform their conduct to the law and by addressing legal concerns that may

inhibit clients from engaging in otherwise lawful and socially beneficial activities.

The cost of these benefits is the withholding of relevant information from the

courts.

Recognizing the inherent tension between the beneficial goals of the

attorney-client privilege and the courts’ right to every person’s evidence, the

courts have articulated the following principles to inform our analysis of the scope

of the common interest doctrine:

(1) “[C]ourts construe the privilege to apply only where

necessary to achieve its purpose.”

(2) Only those communications which “reflect the lawyer’s

thinking [or] are made for the purpose of eliciting the lawyer’s

professional advice or other legal assistance” fall within the

privilege.

(3) Because one of the objectives of the privilege is

assisting clients in conforming their conduct to the law, litigation

need not be pending for the communication to be made in

connection to the provision of legal services.

(4) Because “the privilege is in derogation of the search for

truth,” any exceptions to the requirements of the attorney-client

privilege “must be strictly confined.”

Although occasionally termed a privilege itself, the common interest

doctrine is really an exception to the rule that no privilege attaches to

communications between a client and an attorney in the presence of a third

person. In effect, the common interest doctrine extends the attorney-client

privilege to otherwise non-confidential communications in limited circumstances.

For that reason, the common interest doctrine only will apply where the parties

undertake a joint effort with respect to a common legal interest, and the doctrine

is limited strictly to those communications made to further an ongoing enterprise.

Other than these limits, however, the common defense doctrine does not contract

the attorney-client privilege. Thus, communications need not be made in

anticipation of litigation to fall within the common interest doctrine. Applying

the common interest doctrine to the full range of communications otherwise

protected by the attorney-client privilege encourages parties with a shared legal

interest to seek legal “assistance in order to meet legal requirements and to plan

their conduct” accordingly. This planning serves the public interest by advancing

compliance with the law, “facilitating the administration of justice” and averting

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litigation. Reason and experience demonstrate that joint venturers, no less than

individuals, benefit from planning their activities based on sound legal advice

predicated upon open communication. [Citations omitted; emphasis added.]

In Seidman, the defendant accounting firm was involved in litigation with the IRS

regarding potentially abusive tax shelters promoted by the accounting firm. Id. at 808. A lawyer

for the accounting firm wrote a memorandum to outside tax counsel “requesting legal advice on

pending IRS regulations,” and a copy of the memorandum was also received by an attorney at a

different law firm that did not represent the defendant accounting firm but serviced the same

clients as the accounting firm “on the same or related matters.” Id. at 813. The attorney at this

law firm claimed that she received the memorandum from the accounting firm as input regarding

tax shelters that the law firm was preparing for the accounting firm and their common clients.

Id. at 813. The Seventh Circuit held that the lower court did not err by concluding that the

memorandum at issue was within the scope of the common-interest doctrine and thus protected

by attorney-client privilege. Id. at 814, 817. The Seidman Court reasoned that the accounting

firm and law firm “shared a common legal interest ‘in ensuring compliance with the new

regulation issued by the IRS,’ and in making sure that they could defend their product against

potential IRS enforcement actions.” Id. at 816 (citation omitted).

In D’Alessandro Contracting Group, LLC v Wright, 308 Mich App 71, 83-84; 862 NW2d

466 (2014), this Court applied the federal common-interest doctrine in the context of the work-

product privilege. The D’Alessandro Court stated, “While courts in this state have not expressly

addressed the so-called common-interest doctrine, several federal courts have concluded that the

disclosure of work product to a third party does not result in a waiver if there is a reasonable

expectation of confidentiality between the transferor . . . and the recipient . . . .” Id. at 82. This

Court set forth the following explanation:

“A reasonable expectation of confidentiality may derive from common

litigation interests between the disclosing party and the recipient . . . . [T]he

existence of common interests between transferor and transferee is relevant to

deciding whether the disclosure is consistent with the nature of the work product

privilege. This is true because when common litigation interests are present, the

transferee is not at all likely to disclose the work product material to the

adversary.” [Id. at 83, quoting United States v Deloitte LLP, 391 US App DC

318, 330 (2010) (alterations in original).]

The D’Alessandro Court noted that the “[f]ederal courts’ application of the common-interest

doctrine is instructive” because of the similarity between state and federal rules regarding the

work-product privilege and “our courts routinely rely on federal cases for guidance in

determining the scope of the work-product doctrine[.]” Id. at 84 (quotation marks and citation

omitted).

We conclude that the common-interest doctrine should similarly be applied to the

attorney-client privilege in Michigan. See id. See also Leibel, 250 Mich App at 236-237; Reed

Dairy Farm, 227 Mich App at 619-620. Plaintiff’s argument that the common-interest doctrine

should not apply simply because there is no Michigan case directly on point is unavailing. The

waiver concept operates similarly in both the attorney-client privilege and work-product

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privilege contexts. Leibel, 250 Mich App at 248. It is also well established that this Court is free

to adopt the analysis of a lower federal court “if it is persuasive and instructive.” Holman v

Rasak, 281 Mich App 507, 509; 761 NW2d 391 (2008).

In this case, even though the city was not named as a defendant in the underlying tort

litigation, a primary issue in that litigation has been determining the ownership of Duncan Park

and the nature of the city’s relationship to Duncan Park. The park was created through a

charitable trust for the benefit of Grand Haven and its people. At one point, the trial court in the

underlying litigation ruled that the city held fee title to Duncan Park, although the trial court’s

order granting summary disposition on the ground of governmental immunity was subsequently

reversed on appeal. Nash v Duncan Park Comm, 304 Mich App 599, 609-610, 636; 848 NW2d

435 (2014), judgment vacated in part, 497 Mich 1016 (2015). Because of the dispute over who

owns Duncan Park, City Manager Patrick McGinnis believed that the city was involved in the

lawsuits “on some level.” The record reflects that the Duncan Park Commission was created by

city ordinance, pursuant to the terms of the trust deed, to manage and control Duncan Park. The

record also indicates that the city entered into a license agreement with the Duncan Park

Commission in which the city agreed to extend liability insurance coverage through its insurance

carrier to Duncan Park, the Duncan Park Commission, the Duncan Park Trust, and the trustees—

i.e., the Duncan Park tort defendants—in exchange for the use of the park. The city was the

principal insured on the policy. There was also evidence that Selective Insurance, the city’s

insurance carrier, hired attorney Cynthia Merry and her law firm as defense counsel to represent

the Duncan Park tort defendants and the interests of the city as necessary throughout the

underlying tort litigation. Furthermore, the city hired attorney Gregory Longworth to represent

groundskeeper DeHare in the tort litigation. Longworth was an attorney at a law firm that had

served as the city’s general counsel previously.

Additionally, there was evidence that McGinnis was deposed repeatedly during the

underlying tort litigation and that plaintiff sought to depose the mayor of Grand Haven, even

though the city was not a party. Counsel for the city entered a limited appearance at one point in

the underlying tort litigation on behalf of the city and its officials who were nonparties.

McGinnis also testified at the trial in the instant FOIA matter that the city acted in an

“advisory capacity” for the tort defendants throughout that litigation because of the city’s close

connection to the facts of the case. As the tort litigation proceeded, McGinnis consulted with the

city’s attorneys and the attorneys representing the tort defendants to discuss litigation strategy

and positions that the city might take in response to positions taken by plaintiff. McGinnis

consulted with the city’s attorneys to discuss possible issues of exposure for the city. McGinnis

testified that the city had mutual interest in achieving a successful outcome in the tort litigation

and that he believed that his communications with the various attorneys were confidential.

Therefore, the record supports the conclusion that the city shared with all of the

defendants in the underlying tort action a common legal interest in matters related to the

operation, use, maintenance, and protection of Duncan Park for the benefit of the people of

Grand Haven and that the city and the tort defendants were involved in a joint effort to prevent or

limit liability from attaching to the parties involved in the operation of Duncan Park. See

Seidman, 492 F3d at 815-816 (“the common interest doctrine only will apply where the parties

undertake a joint effort with respect to a common legal interest”).

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Our review of the documents at issue in light of the other record evidence supports the

conclusion that Documents 2 and 8 were confidential communications between representatives

of the city or the city’s attorneys and the tort defendants or attorneys representing the tort

defendants, with whom the city shared a common legal interest as previously noted, and that

these communications were made for the purpose of obtaining legal advice and services related

to the underlying tort litigation. The same is true of Documents 4 and 10, communications that

also included a representative of Selective Insurance, which was the company that provided the

city’s insurance policy that had been extended to the Duncan Park Commission through the

license agreement. The same is also true of Document 1, with the exception of the amount of the

attorney billings contained in this communication. As the trial court also found, this information

was not protected by privilege and was not exempt from disclosure; therefore, the trial court did

not err by determining that these communications were protected by attorney-client privilege and

that the privilege was not waived by disclosure to the city. Krug, 264 Mich App at 485; Herald

Co, 224 Mich App at 279; Seidman, 492 F3d at 815-817.

Regarding the communication between the city and the Michigan Attorney General’s

Office, the city argued below that a shared interest was involved because the city’s attorneys

were directly involved in negotiating the reformation of the Duncan Park Trust that was sought

in the probate court, and the city’s fiduciary duties to the people of Grand Haven were aligned

with the Attorney General’s interests relating to the Duncan Park Trust. At the trial, counsel for

the city further argued that the dynamics of the Duncan Park Trust reformation were part of the

circumstances involved in the underlying tort litigation.

The petition for reformation that was submitted in the Ottawa County Probate Court1

indicates that the Michigan Department of Attorney General is an interested party because it

“[o]versees charitable trusts” and had executed a waiver of notice and consent. The petition also

indicates that the trust needed to be reformed because the “governance structure of Duncan Park,

as provided in the Deed, presents . . . conceptual difficulties” such as being open to the public as

if publicly owned without providing governmental immunity for members of its governing body

who in turn risk personal liability, potentially disqualifying Duncan Park from eligibility for

certain funding that may only be directed to governmental and charitable entities, and requiring

the city’s involvement in Duncan Park without the transparency and accountability typically

applicable to government bodies. The petition further stated that “Mrs. Duncan’s intent to

provide a public park with independent oversight for the perpetual benefit of the people of Grand

Haven would be enhanced if the Deed is reformed” to make the city the sole trustee and allow

the city to establish a governing board for Duncan Park by ordinance.

“In trust administration matters, the Attorney General constitutes a ‘special party’ under

the Revised Probate Code,” and “pursuant to the Supervision of Trustees for Charitable Purposes

Act, the Attorney General is vested with jurisdiction and control to supervise and enforce

1

We take judicial notice of these other court proceedings. See Sturgis v Sturgis, 302 Mich App

706, 712; 840 NW2d 408 (2013).

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charitable trusts.” In re Estes Estate, 207 Mich App 194, 202; 523 NW2d 863, 866 (1994)

(Citations omitted). Furthermore, MCL 14.254 provides in pertinent part:

(a) The attorney general shall have jurisdiction and control and shall

represent the people of the state and the uncertain or indefinite beneficiaries in all

charitable trusts in this state, and may enforce such trusts by proper proceedings

in the courts of this state.

(b) The attorney general is a necessary party to all court proceedings (1) to

terminate a charitable trust or to liquidate or distribute its assets, or (2) to modify

or depart from the objects or purposes of a charitable trust as the same are set

forth in the instrument governing the trust, including any proceeding for the

application of the doctrine of cy pres, or (3) to construe the provisions of an

instrument with respect to a charitable trust. A judgment rendered in such

proceedings without service of process and pleadings upon the attorney general,

shall be voidable, unenforceable, and be set aside at the option of the attorney

general upon his motion seeking such relief. The attorney general shall intervene

in any proceedings affecting a charitable trust subject to this act, when requested

to do so by the court having jurisdiction of the proceedings, and may intervene in

any proceedings affecting a charitable trust when he determines that the public

interest should be protected in such proceedings. With respect to such

proceedings, no compromise, settlement agreement, contract or judgment agreed

to by any or all parties having or claiming to have an interest in any charitable

trust shall be valid unless the attorney general was made a party to such

proceedings and joined in the compromise, settlement agreement, contract or

judgment, or unless the attorney general, in writing, waives his right to

participate therein. The attorney general is expressly authorized to enter into

such compromise, settlement agreement, contract or judgment as in his opinion

may be in the best interests of the people of the state and the uncertain or

indefinite beneficiaries. [Emphasis added.]

Accordingly, the city’s interest in protecting Duncan Park for the use of Grand Haven’s

citizens in accordance with the intent expressed in the trust deed are in alignment with the

Attorney General’s interests in representing the people of Michigan and uncertain or indefinite

beneficiaries of charitable trusts: there was a common legal interest in ensuring that the trust was

appropriately reformed to accomplish the expressed intent of the charitable trust. MCL

14.254(a) and (b); Seidman, 492 F3d at 815-816.

A review of Document 11 involving the communications between attorney Nicholas

Curcio representing the city and Assistant Attorney General William Bloomfield supports the

conclusion that these were confidential communications between these attorneys representing

common legal interests made in connection with facilitating professional legal services related to

reforming the Duncan Park Trust to protect those common interests. Therefore, the trial court

did not err by determining that these communications were protected by attorney-client privilege.

Krug, 264 Mich App at 485; Herald Co, 224 Mich App at 279; Seidman, 492 F3d at 815-816.

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Documents 3, 5, 6, and 7 are not at issue for purposes of the attorney-client privilege

issue because they had already been disclosed to plaintiff before the bench trial. Documents 9

and 12 are also not at issue on appeal because the trial court ruled that they were not subject to

attorney-client privilege, so they were not exempt from disclosure.

With respect to the other documents the trial court reviewed in camera and which the

trial court determined were subject to attorney-client privilege, we agree that all of those

documents involved communications between representatives of the city and the city’s attorneys

related to legal advice about matters related to Duncan Park. Therefore, these documents were

protected by attorney-client privilege. Krug, 264 Mich App at 485; Herald Co, 224 Mich App at

279.

Because attorney-client privilege applied to the challenged documents, they were exempt

from disclosure. MCL 15.243(1)(g); Detroit Free Press, 269 Mich App at 281.

Next, plaintiff argues that MCL 15.240(6) does not grant the trial court discretion to

determine that a plaintiff who prevails in part is not entitled to any attorney fees and that plaintiff

is thus entitled to an appropriate portion of reasonable attorney fees. We disagree.

This Court “review[s] for an abuse of discretion an award of attorney fees to a prevailing

plaintiff in an action under the FOIA” and reviews “a trial court’s factual findings for clear

error.” Prins v Mich State Police, 299 Mich App 634, 641; 831 NW2d 867 (2013). “An abuse

of discretion occurs when the trial court’s decision is outside the range of reasonable and

principled outcomes.” Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008). “A finding

is clearly erroneous when, although there is evidence to support it, the reviewing court on the

entire record is left with a definite and firm conviction that a mistake was made.” Marilyn

Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 296; 769

NW2d 234 (2009) (quotation marks and citation omitted).

MCL 15.240(6) provides in pertinent part:

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 . . . .

“A party has ‘prevailed’ under the FOIA if the prosecution of the action was necessary to

and had a substantial causative effect on the delivery of or access to the documents.” Wilson v

Eaton Rapids, 196 Mich App 671, 673; 493 NW2d 433 (1992). “[I]f a plaintiff prevails

completely in an action to compel disclosure under the FOIA, the circuit court must award

reasonable attorney fees.” Prins, 299 Mich App at 641. Nonetheless, “attorney fees and costs

must be awarded under the first sentence of MCL 15.240(6) only when a party prevails

completely,” and “whether to award plaintiff reasonable attorney fees, costs, and disbursements

when a party only partially prevails under the FOIA is entrusted to the sound discretion of the

trial court.” Local Area Watch, 262 Mich App at 150, 151.

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The Court in Local Area Watch noted that because the plaintiff had not prevailed “on its

central claim of access to executive (closed) session minutes,” the trial court did not abuse its

discretion by denying the plaintiff’s request for reasonable attorney fees, costs, and

disbursements and the defendants had acted reasonably even though the defendants had

nonetheless violated FOIA by making some late disclosures. Id. at 151.

Local Area Watch, which was decided in 2004, is binding precedent, MCR 7.215(J), and

there is no merit to the argument that a trial court cannot exercise its discretion to determine that

a plaintiff that prevails only partially in a FOIA action is not entitled to any attorney fees.

Plaintiff’s reliance on Rataj v Romulus, 306 Mich App 735, 756; 858 NW2d 116 (2014), is

unavailing because the Rataj Court merely held on the facts of that case that the partially

prevailing plaintiff was entitled to an appropriate portion of his attorney fees, costs, and

disbursements. This Court did not prohibit a trial court from determining in its discretion that an

award of attorney fees is unwarranted. Plaintiff’s reliance on Bitterman v Village of Oakley, 309

Mich App 53, 72-73; 868 NW2d 642 (2015), is misplaced for the same reason. Finally, plaintiff

also relies on two decisions from this Court, Dawkins v Dep’t of Civil Serv, 130 Mich App 669,

673-674; 344 NW2d 43 (1983), and Booth Newspapers, Inc v Kalamazoo Sch Dist, 181 Mich

App 752; 450 NW2d 286 (1989), that are not binding because they were decided before

November 1, 1990. MCR 7.215(J). Therefore, Local Area Watch articulates the governing rule.

In this case, the record supports the trial court’s determination that plaintiff was not

entitled to attorney fees. Plaintiff’s success in this FOIA action was relatively minor when

considering the volume of documents. Of the documents reviewed in camera by the trial court,

the city was determined to have violated FOIA with respect to only eight pages of documents,

two of which required redacting because the trial court only ordered the amount of the billed

attorney fees to be disclosed.2 This is a relatively inconsequential amount compared to the

volume of documents submitted, and most of the documents over which the city claimed

attorney-client privilege were determined to actually be privileged. In light of plaintiff’s

protracted litigation involving the Duncan Park accident, which included discovery requests

directed at the city and its employees-- even though the city was not a defendant in those

proceedings--, the trial court did not abuse its discretion by deciding that attorney fees were not

warranted for plaintiff’s relatively minor partial victory. Local Area Watch, 262 Mich App at

2

Five other documents had already been disclosed to plaintiff, and the trial court thus did not

make a ruling on these documents regarding the attorney-client privilege, although the trial court

did rule that the city violated FOIA by disclosing one of those five documents late. Our

statement that the city’s FOIA violation constituted eight pages of documents includes this late-

disclosed document, as well as the two documents and billing amounts that the trial court

determined were not subject to the attorney-client privilege. It is unclear why these previously

disclosed documents were in the packet of materials reviewed in camera if they had not been

withheld, but counsel for the city indicated at the bench trial that these documents may have

merely been attachments to the other e-mails that were submitted for in camera review. Counsel

appeared to imply that these previously produced documents were inadvertently included with

the materials that the city claimed were privileged.

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150-151. Contrary to plaintiff’s argument, the reasonableness of a defendant’s actions is a

proper consideration when the trial court is exercising its discretion to determine the appropriate

attorney fees to award to a partially prevailing plaintiff. Id.

We affirm.

/s/ Jane E. Markey

/s/ Christopher M. Murray

/s/ David H. Sawyer

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