Reasonable Attorney Fees Shall be Awarded Pursuant to MCL 15.240(6)

Woodman v. Department of Corrections  

• Opinion Issued: July 26, 2023

• Michigan Supreme Court Docket Nos. 163382 and 163383

• Author: Justice Kyra H. Bolden 

 Holding: Reasonable attorney fees shall be awarded pursuant to MCL 15.240(6) where a party substantially prevails in obtaining everything that was initially sought in a FOIA action, and pro bono representation is not a factor that can be taken into consideration when a court is determining the reasonableness of attorney fees. As such, the Court of Claims abused its discretion by reducing the attorney fee award.

Facts: Plaintiffs are two freelance journalists who sought video and audio recordings of a prison altercation from the Michigan Department of Corrections (the MDOC) under Michigan’s Freedom of Information Act (FOIA). The requests were denied by the MDOC leading Plaintiffs to file a lawsuit in the Court of Claims alleging that their request for video and audio recordings was wrongfully denied under FOIA. The American Civil Liberties Union (the ACLU) and Honigman LLP (Honigman) represented Plaintiffs. The Trial Court ordered the MDOC to provide the video and audio recordings to Plaintiffs. The Trial Court, on reconsideration, allowed the MDOC to obscure the employees’ and prisoners’ faces in the video.  

After the decision, Plaintiffs moved for attorney fees under MCL 15.240(6) and punitive damages under MCL 15.240(7). The MDOC countered that Plaintiffs only prevailed in part because the MDOC was permitted to obscure identities of individuals, and since Honigman represented Plaintiffs pro bono, Plaintiffs should not be awarded fees. The Court of Claims determined Plaintiffs were entitled to reasonable attorney fees and costs but awarded only partial fees for Honigman’s pro bono representation. Plaintiffs appealed the reduction of Honigman’s attorney-fee award. The Court of Appeals did not address the attorney fees but did recommend the Court of Claims “should . . . determine whether the pro bono nature of the representation is a legitimate consideration in the determination of the reasonableness of the fees.” 

Plaintiffs then appealed to the Supreme Court.

Key Appellate Rulings:

A party is entitled to reasonable attorney fees and expenses under MCL 15.240(6) when the party is awarded a substantial victory and obtains all that was initially sought.  

A fee-shifting provision under the FOIA provides that the court shall award reasonable attorney fees to parties that prevail in an action commenced under MCL 15.240(6). To “prevail” the court must find that the action substantially caused the disclosure of the information to the plaintiff. See Amberg v Dearborn, 497 Mich 28, 34; 859 NW2d 674 (2014). However, a party may “prevail in part” if they do not obtain the entire relief that was initially sought. See Int’l Union, United Plant Guard Workers of America v Dep’t of State Police, 422 Mich 432, 455; 373 NW2d 713 (1985) (opinion by Levin, J.). To determine whether a plaintiff prevailed as opposed to prevailing in part, the court should consider, (1) Was the action reasonably necessary to compel the disclosure of the records? (2) Did the action actually have the causative effect of delivering the information? And (3) did the plaintiff obtain everything it initially sought?  

Plaintiffs did prevail, within the meaning of the statute, in obtaining the initially requested video and audio recordings regardless of the fact that the furnished videos redacted identifying features. The action commenced by Plaintiffs was necessary to compel the MDOC to provide the videos because the MDOC previously refused to do so. The action additionally had a substantial causative effect on the delivery of the videos. Therefore, Plaintiffs prevailed and were entitled to reasonable attorney fees.  

Pro bono representation is never an appropriate factor for a court to consider in determining the reasonableness of an attorney fee.  

In a FOIA case, when calculating the amount of attorney fees to be awarded, courts must determine reasonableness. See Wood v Detroit Auto-Ins Exch, 413 Mich 573, 588; 321 NW2d 653 (1982). To determine the reasonableness of attorney fees under FOIA and other fee shifting statutes, lower courts should use the Smith/Pirgu factors. See Smith v Khouri, 481 Mich 519, 530; 751 NW2d 472 (2008); Pirgu v United Servs Auto Ass’n 499 Mich 269, 281-282 (2016). In this case, the Court of Claims did not consider the Smith/Pirgu factors, nor did it explain the use of pro bono representation as a factor.  

The Supreme Court held that pro bono representation is not relevant to the reasonableness of an attorney fee, and it therefore cannot be taken into consideration, as the nature of the representation being provided pro bono should not have an effect on the time or quality of the work being expended on the case. Awarding fees for pro bono representation promotes the purpose of the FOIA’s fee-shifting provision because it is designed to assist and protect plaintiffs who would otherwise be unable to afford litigation, and MCL 15.240(6) does not differentiate between awards for pro bono versus non-pro bono attorney fees. Federal courts addressing both FOIA and non-FOIA matters have agreed that prevailing parties should not be denied the award of reasonable attorney fees based on pro bono representation. If courts were permitted to reduce reasonable attorney fees based on pro bono representation, it would undermine the enforcement of the FOIA, discourage pro bono representation, negatively impact indigent parties access to litigation, and encourage non-compliance with the FOIA. 

Justice Zahra’s Dissenting Opinion, joined by Justice Viviano  

Justice Zahra dissented that Plaintiffs were entitled to reasonable attorney fees. First, Justice Zahra disagreed that Plaintiff’s prevailed in whole, mandatorily entitling them to reasonable attorney fees, finding Plaintiffs prevailed only in part because, although Plaintiff’s initial FOIA requests were not for unredacted videos, Plaintiffs sought unredacted footage in their complaints, and the default requirement under the FOIA provision is for unredacted records. Consequently, Plaintiffs were initially requesting and expecting unredacted recordings, which they were not granted, and they should not be entitled to mandatory attorney fees. 

Second, Justice Zahra challenged that pro bono representation cannot be considered as a factor in determining the reasonableness of attorney fees. Traditionally, providing services pro bono implies without compensation, and the Michigan Rules of Profession Conduct encourage attorney participation for little or no fee. Attorneys may have the possibility of receiving attorney fees under a fee-shifting provision, but courts should not be precluded from considering pro bono representation as a relevant factor when awarding reasonable fees. Thus, it is not Justice Zahra’s position that courts should deny fees based on pro bono representation as prohibited by the cases the majority cited, but instead Justice Zahra explains that the majority jumped to a conclusion unfounded by cited cases that a court may never consider the nature of representation as a factor.