A trial court properly refused to award the plaintiff in this Freedom of Information Act (FOIA) case attorney fees that were incurred after the defendant’s disclosure of the requested information but incurred as a result of seeking fees related to that disclosure – otherwise known as “fees for fees,” the Michigan Court of Appeals has ruled.

The Washtenaw County Circuit Court awarded the plaintiff in Tooles Contracting Group, LLC v Washtenaw County Road Comm’n (Docket No. 363005) attorney fees of $11,396.68 and expenses of $129.54 from the defendant, as a result of the defendant’s alleged failure to fully comply with a request for records under the FOIA, MCL 15.231, et seq. The trial court calculated the fee award by multiplying the reasonable hourly rate by the number of hours expended in the case ($45,586.71) and reduced that amount by 75 percent.

The plaintiff appealed that decision, arguing the trial court erred by not awarding attorney fees that were incurred after the defendant’s disclosure under FOIA but incurred as a result of seeking fees relating to that disclosure – that is, “fees for fees.” The plaintiff also asserted that, even if the trial court correctly found that the cutoff date for attorney fees was the date of disclosure, the amount awarded was too low.

The Court of Appeals disagreed with the plaintiff and affirmed the trial court’s ruling in a 2-1 decision.

“The underlying question … is whether plaintiff is entitled to attorney fees incurred after April 13, 2018, the date on which the requested records were disclosed, to litigate whether attorney fees are warranted under FOIA,” the Court of Appeals majority said, noting that neither the Court of Appeals nor the Michigan Supreme Court has “directly answered” this question.

There is no Michigan caselaw saying that a trial court is required to award “fees for fees” or is prohibited from awarding such fees, the Court of Appeals observed. Therefore, this lack of case precedent “suggests … the default principle is that an award of such fees remains within the trial court’s discretion.”

Given “the extended procedural history of this case …, we conclude that the trial court did not abuse its discretion by refusing to award plaintiff attorney fees incurred after April 13, 2018, because plaintiff was largely responsible for prolonging the litigation,” the Court of Appeals said, pointing out it was the third time the case had been appealed.

Judge Michael J. Riordan and Judge Mark J. Cavanagh joined the majority opinion.

Judge Kristina Robinson Garrett dissented, saying she would vacate the trial court’s order and remand the case to “reconsider the request” by the plaintiff “for attorney fees incurred in establishing entitlement to fees (‘fees for fees’) under the FOIA’s fee-shifting provision, MCL 15.240(6).”

The plaintiff appealed the Court of Appeals ruling. The Michigan Supreme Court has directed that oral argument be scheduled on the plaintiff’s application (Docket No. 167108). The high court instructed the parties to file their briefs and address whether:

• MCL 15.240(6) allows, mandates or prohibits an attorney fee award that a plaintiff incurs 1) after the public records at issue in the case have been produced or 2) while litigating entitlement to attorney fees.

• the Court of Appeals correctly held the trial court’s attorney fee award was not an abuse of discretion because the plaintiff was “largely responsible for prolonging the litigation.”

Background

In March 2017, the plaintiff submitted several FOIA requests to the defendant. One of the requests (Request 5) was “allegedly unclear” and the defendant did not provide responsive records to that request. Several months later, the plaintiff sued the defendant in Washtenaw County Circuit Court, claiming the defendant violated FOIA concerning Request 5. After a few months passed, the defendant “understood the scope of the request and provided responsive records to plaintiff in April 2018.” The trial court subsequently denied the plaintiff’s request for attorney fees under MCL 150.240(6). The plaintiff appealed.

The Court of Appeals ruled it lacked jurisdiction to address the merits of the attorney fees claim, remanded the case for the trial court to address the parties’ competing motions for summary disposition and, if necessary, to consider the merits of the plaintiff’s request for attorney fees (Tooles I). On remand, the trial court granted summary disposition to the defendant, finding it did not violate the FOIA.

The plaintiff appealed. The Court of Appeals reversed and remanded for the trial court to award the plaintiff attorney fees with respect to Request 5 (Tooles II). The trial court did so. The plaintiff again appealed, this time arguing the amount awarded was insufficient.

Plaintiff ‘Prolonged’ The Litigation

The plaintiff asserted in this third appeal that the trial court wrongly held it was not entitled to attorney fees incurred after April 13, 2018.

The Court of Appeals rejected this argument, finding that “although the trial court could have ruled otherwise, it was not an abuse of discretion to limit recovery to that date.”

In its analysis, the Court of Appeals referenced the FOIA and those sections pertinent to this case. “At issue here is MCL 15.240(6). Our Supreme Court recently summarized the well-established caselaw concerning this subsection as follows: ‘[U]nder MCL 15.240(6), when a party “prevails,” the court is required to award the party reasonable attorney fees. On the other hand, when a party only “prevails in part,” then the court may, in its discretion, award all or an “appropriate portion” of a reasonable fee.’”

Further, “[r]elease of the requested records by the public body during litigation renders the substantive FOIA claim moot,” the Court of Appeals noted.

According to the Court of Appeals, the issue was whether the plaintiff was entitled to attorney fees incurred after April 13, 2018 – the date the requested records were disclosed – to litigate whether attorney fees were warranted under FOIA. Because Michigan appellate courts have not “directly” addressed this question, the Court of Appeals looked to other cases for guidance, including:

• Meredith Corp v City of Flint, 256 Mich App 703 (2003).

• Swickard v Wayne County Medical Examiner, 196 Mich App 98 (1992).

• In re Sloan Estate, 212 Mich App 357 (1995).

• Hardy v Bureau of Alcohol, Tobacco, Firearms and Explosives, 293 F Supp 3d 17 (D DC, 2017).

• Electronic Privacy Info Center v Dep’t of Homeland Security, 197 F Supp 3d 290 (D DC, 2016).

• Rosenfeld v United States Dep’t of Justice, 903 F Supp 2d 859 (ND Cal, 2012).

• Weatherhead v United States, 112 F Supp 2d 1058 (ED Wash, 2000).

Upon reviewing these cases, the Court of Appeals concluded that it did not have to determine whether MCL 15.240(6) “presumptively requires or prohibits” an award of attorney fees incurred after disclosure to establish entitlement to fees in the first instance. “Even applying the standard established by the D.C. Circuit, which is more clearly favorable to plaintiff than the cases cited by plaintiff on appeal, the trial court did not abuse its discretion in this particular case.”

The plaintiff’s “post-disclosure presentation of the issues to the trial court and this Court has, in our view, needlessly protracted this litigation,” the Court of Appeals explained. “Tooles I remanded the case to the trial court to resolve ‘the parties’ competing motions for summary disposition and [award] any further relief that may be warranted.’ … At that point, on remand, the trial court should have ruled that the competing motions for summary disposition were moot and simply decided the attorney-fees issue. … Instead, the parties argued the merits of the motion for summary disposition, and the trial court, understandably, resolved the merits of the motion. Plaintiff then appealed to this Court, arguing that the trial court erred by denying its motion for summary disposition. This Court consequently issued Tooles II, which affirmed the trial court’s denial of the motion with respect to Request 6 but reversed with respect to Request 5. … Arguably, the Tooles II panel could have ruled that the motion was moot, rather than addressing the merits. Simply put, plaintiff has repeatedly presented a moot issue to the trial court and this Court.”

In addition, focusing on whether the defendant violated FOIA “largely misses the mark as to plaintiff’s entitlement to attorney fees,” the Court of Appeals explained. “In other words, whether a public body violated FOIA may be part of the analysis for determining whether a requesting person is a ‘prevailing party’ under MCL 15.240(6), but it is not an independent consideration. Accordingly, whether defendant violated FOIA in 2017 may be a relevant consideration for determining whether plaintiff is entitled to attorney fees under MCL 150.240(6), but that issue has obscured the underlying analysis required by statute.”

The standard of review for awarding attorney fees under FOIA is an abuse of discretion, the Court of Appeals pointed out. “There is no Michigan caselaw providing that the trial court is either required to award ‘fees for fees’ or prohibited from awarding such fees, which suggests that the default principle is that an award of such fees remains within the trial court’s discretion. Here, given the extended procedural history of this case …, we conclude that the trial court did not abuse its discretion by refusing to award plaintiff attorney fees incurred after April 13, 2018, because plaintiff was largely responsible for prolonging the litigation.”

‘Reasonableness’ Of Fees

Next, the Court of Appeals rejected the plaintiff’s argument that the trial court wrongly reduced the attorney fee award by 75 percent. In so ruling, the appeals court relied on Pirgu v United Services Automobile Ass’n, 499 Mich 269 (2016), where the Michigan Supreme Court explained the framework for determining an attorney fee award under the No-Fault Act.

The trial court in the present case “followed the Pirgu framework and determined that the awardable attorney fees should be reduced by 75%,” the Court of Appeals observed. “After reviewing the lower-court record of the proceedings before April 13, 2018, we conclude that the trial court did not abuse its discretion in this regard. It is true that the primary legal issue identified in the seven-page complaint concerned Request 5. Further, most of the March 29, 2018 motion hearing concerned Request 5. On the other hand, however, in plaintiff’s 20-page brief in support of its February 7, 2018 motion for summary disposition, only about 3½ pages were dedicated to Request 5. Six-and-a-half pages were dedicated to other legal issues, and the remaining pages addressed other aspects of the filing, such as a statement of facts and a request for relief. Briefs exchanged by the parties shortly thereafter reflected similar ratios of the issues discussed. Moreover, on April 4, 2018, plaintiff filed a couple of relatively minor objections to a proposed order submitted by defendant. Those objections were rejected by the trial court at a later motion hearing. Simply put, the trial court did not clearly err by finding that plaintiff ‘dedicated a considerable amount of time’ to issues beyond Request 5. The trial court’s determination that a reduction of 75% is warranted was supported by the record and did not constitute an abuse of discretion.”

Accordingly, the trial court did not abuse its discretion by refusing to award the plaintiff attorney fees “incurred after April 13, 2018, the date of disclosure,” the Court of Appeals concluded. “Nor did the trial court abuse its discretion by awarding plaintiff attorney fees of $11,396.68. We affirm.”