MEREDITH CORP V CITY OF FLINT
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STATE OF MICHIGAN
COURT OF APPEALS
MEREDITH CORPORATION, d/b/a WNEM
TV5,
FOR PUBLICATION
June 3, 2003
9:10 a.m.
Plaintiff-Appellee/Cross-Appellant,
v
No. 232310
Genesee Circuit Court
LC No. 00-068416-CZ
CITY OF FLINT,
Defendant-Appellant/CrossAppellee.
Updated Copy
July 7, 2003
Before: Smolenski, P.J., and Wilder and Schuette, JJ.
WILDER, J.
In this action filed pursuant to the Freedom of Information Act (FOIA), MCL 15.231 et
seq., defendant city of Flint appeals as of right from the circuit court's judgment awarding
plaintiff Meredith Corporation $6,269.73 in costs and attorney fees. Plaintiff cross-appeals the
circuit court's denial of its request for punitive damages and denial of attorney fees and costs
incurred before August 21, 2000. We affirm in part, reverse in part, and remand.
I. Facts and Proceedings
In early July 2000,1 a minor called defendant's 911 center for assistance and, immediately
following the call, shot and killed his uncle. The prosecutor charged the minor in the family
division of circuit court with voluntary manslaughter and possession of a firearm during the
commission of a felony. The minor asserted that he shot his uncle in self-defense. On July 6,
2000, plaintiff submitted an FOIA request for disclosure of audiotapes of the 911 call and policedispatch radio traffic concerning the incident and records identifying who was staffing
defendant's 911 center when the minor called 911.
1
The exact date of the incident is not clear from the record. Although some documents state that
the incident occurred on July 3, 2000, plaintiff 's complaint states that the incident occurred "on
the evening of July 4 or early on July 5."
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On July 12, defendant's assistant city attorney informed plaintiff by letter that it could not
provide the requested information within five business days as required by the act and that
defendant was claiming the ten-business-day extension for disclosure permitted by MCL
15.235(2)(d). Two days later, on July 14, defendant's assistant city attorney sent plaintiff a letter
denying its FOIA request. Defendant claimed in the letter that the information was exempt from
disclosure pursuant to MCL 15.243(1)(b)(i) and (ii) "as this is an on-going investigation."2
Defendant's assistant city attorney sent an identical letter to plaintiff on July 26, 2000.
On August 17, 2000, plaintiff filed its complaint in the instant matter, asserting that the
information was subject to disclosure and that the attorneys in the underlying juvenile proceeding
had consented to disclosure of the information. According to plaintiff 's complaint, the minor
had been bound over for trial on charges of manslaughter, and the law-enforcement investigation
was not ongoing.3
One hour after plaintiff filed its complaint, defendant filed a motion for a protective order
in the juvenile proceeding concerning disclosure of the tape. In its motion, defendant stated that
the minor's attorney had subpoenaed the 911 tape from defendant, that several media outlets had
requested the tape, and that the tape contained statements made by the minor and his uncle.
Defendant requested that the family division of circuit court enter an order prohibiting the
minor's attorney from disseminating the tape or its contents to anyone, including the media and
the minor's family members, until after the minor's trial.
On August 22, 2000, plaintiff filed a motion in the circuit court to compel disclosure of
the information it requested pursuant to the FOIA, which the circuit court heard on August 28,
2000. At the hearing, plaintiff contended that because the minor had been charged and bound
over, any law-enforcement investigation had concluded. Plaintiff also noted that both the minor's
attorney and the prosecutor assigned to the case had signed affidavits supporting release of the
tape. Plaintiff requested immediate disclosure of the 911 tape and an award of $500 in punitive
damages for defendant's arbitrary and capricious denial of plaintiff 's request.
In response, defendant acknowledged that because the police had completed their
investigation and the prosecution had acted on the investigation, any further investigation would
be conducted by the prosecutor's office, not law enforcement. Defendant claimed, however, that
because of the "exciting" nature of the tape, release of the contents of the tape would receive
substantial media attention and the minor's right to a fair trial could be jeopardized. Defendant
requested a protective order preventing disclosure of the tape on this basis. Defendant also
informed the circuit court that the family division of circuit court would be hearing its motion for
2
MCL 15.243(1)(b)(i) and (ii) exempt public records from disclosure that are "[i]nvestigating
records . . . that . . . would . . . [i]nterfere with law enforcement proceedings" or "[d]eprive a
person of the right to a fair trial or impartial administrative adjudication."
3
While the record before us does not reveal the dates that the minor was charged by the
prosecutor or bound over by the district court, defendant does not dispute plaintiff 's claim that
the law-enforcement investigation was not ongoing when plaintiff 's complaint was filed.
-2-
a protective order the following day. Plaintiff advised the circuit court that it had intervened in
the family-division proceeding and had filed a brief in opposition to defendant's motion for a
protective order.
The circuit court found that there was no "justification on the evidence and documents
submitted to me that would allow the City of Flint not to disclose the 911 tape that was
requested." The circuit court specifically found no evidence of an ongoing law-enforcement
investigation. Regarding defendant's claim that by refusing to disclose the tape it sought to
preserve the fairness of the minor's trial, the circuit court stated:
I think that is a noble concern, and certainly one that [the family division]
might want to address, but I think in terms of the right of the [p]laintiff to seek
this information through the Freedom [of] Information Act, that that is not
something that should be addressed by me here.
Although the circuit court held that "the reasons for nondisclosure offered by the [c]ity . . . are
without merit and that the 911 tape should be disclosed," the circuit court chose to delay the
effect of its ruling until after the hearing on defendant's motion for a protective order and directed
that "release [of the tape] was subject to [the family division's] concept of what is needed to
protect his trial."
During the hearing in the family division on defendant's motion for a protective order,4
defendant admitted that plaintiff was entitled to the tape. Nevertheless, defendant argued that
because the tape would likely be played repeatedly by the media, it should not be made public
until after the trial. Defendant also claimed that "[the minor's] right to a fair trial might be—
might be affected. The City of Flint's case, the Prosecutor's case, might be affected" by
distribution of the tape before trial.
Plaintiff opposed the motion and advised the family division that the circuit court had
found no valid reasons for nondisclosure of the tape. Plaintiff argued that the order sought by
defendant violated the First Amendment as a prior restraint on publication and that defendant
lacked standing to raise the fair-trial issue. The prosecution argued in support of defendant's
motion as a prophylactic measure to prevent a change of venue or a protracted jury-selection
process, but admitted that there was no legal basis for prohibiting release of the tape. Counsel for
the minor concurred with plaintiff that defendant lacked standing to assert the minor's right to a
fair trial, and asserted that defendant's true reason for wanting to shield the tape from public
exposure was the resulting criticism defendant's 911 system could face after release of the tape.
The family division denied defendant's motion, finding that defendant failed to sustain its
burden of showing that disclosure of the evidence would interfere with the parties' rights to a fair
trial, and that the requested order constituted an unconstitutional prior restraint on publication.
4
For reasons not clear from the record, the hearing on defendant's motion was adjourned to
September 5, 2000.
-3-
Later that day, the circuit court in the instant case signed an order granting plaintiff 's motion to
compel disclosure of the tape. Defendant subsequently released the tape to plaintiff.
Thereafter, plaintiff filed a motion for costs, attorney fees, and punitive damages
stemming from defendant's denial of its FOIA request. Defendant argued that plaintiff was not
entitled to attorney fees. First, defendant claimed that plaintiff was not the "prevailing party"
because the FOIA suit was not reasonably necessary to obtain disclosure of the tape, and the suit
was not a substantial cause of the tape's disclosure. Second, defendant argued that plaintiff was
not "forced" into litigation and could have opted for a less expensive administrative appeal of
defendant's denial. Defendant also claimed that because its reasons for denying plaintiff 's FOIA
request were based in law, it had not acted in an arbitrary and capricious manner in denying the
request and thus plaintiff was not entitled to punitive damages. Defendant also objected to the
amount of attorney fees plaintiff requested, noting that plaintiff had requested attorney fees
related to intervening in the family-division proceeding to oppose defendant's motion for a
protective order.
At the hearing on plaintiff 's motion, the circuit court found that plaintiff was a prevailing
party and that it was necessary for the suit to be filed to achieve production of the tape. The
circuit court also found that defendant "probably" had a reasonable belief that the minor's rights
could be affected by release of the tape, but that once the minor's attorney and the prosecutor
indicated in affidavits that they did not oppose release of the tape, "at that point in time, the case
was over for all practical purposes." Accordingly, the circuit court found that plaintiff was
entitled to attorney fees only from the date of the affidavits forward. Additionally, the circuit
court found that because defendant also sought to prevent disclosure by moving for a protective
order in the family-division proceeding, plaintiff necessarily pursued its right to production of the
tape in the family division as well, and that plaintiff was entitled to recover attorney fees incurred
in that forum. Subsequently, the circuit court held an evidentiary hearing regarding the
reasonableness of plaintiff 's requested attorney fees and entered judgment in plaintiff 's favor. In
addition to its rulings on plaintiff 's request for attorney fees, the circuit court also denied
plaintiff 's request for punitive damages, concluding that defendant did not act arbitrarily and
capriciously in declining to release the tape. This appeal followed.
On appeal, defendant claims that the circuit court erred by finding that plaintiff was a
prevailing party and by permitting plaintiff to recover attorney fees incurred when plaintiff
intervened in the family-division proceeding to oppose defendant's motion for a protective order.
Plaintiff argues on cross-appeal that the circuit court erred by limiting its recovery of attorney
fees to those incurred after the attorneys in the family-division proceeding approved by affidavit
the release of the tape. Plaintiff also argues that the circuit court erroneously concluded that it
was not entitled to punitive damages.
II. Standard of Review
We review de novo questions of law such as statutory interpretation. Thomas v New
Baltimore, 254 Mich App 196, 200; 657 NW2d 530 (2002). We review for clear error the circuit
court's findings of fact. Id.
-4-
III. Analysis
Defendant first claims that plaintiff was not a prevailing party in the present action
because plaintiff failed to demonstrate that the suit was reasonably necessary to compel
disclosure of the requested information. We disagree.
Consistent with the "prodisclosure" intent of the FOIA, a public body must provide the
public with access to all government information that is not specifically exempt from disclosure.
Thomas, supra at 201. To efficiently accomplish disclosure, the FOIA places specific
requirements on public bodies that receive requests for public records. A public body must
respond to a request for public records within five business days of receipt of the request by
either granting the request in whole or in part, denying the request in whole or in part, or
notifying the requesting party that it will respond to the request in ten business days. MCL
15.235(2)(a)-(d); see also Key v Paw Paw Twp, 254 Mich App 508, 511-514; 657 NW2d 546
(2002). If the public body denies the request in writing in whole or in part, the denial constitutes
"a public body's final determination" to deny the request. MCL 15.235(4). After the public body
denies the request, the requesting party has the right to either appeal the denial to the head of the
public body, MCL 15.240(1)(a), or seek review of the denial in circuit court, MCL 15.240(1)(b).
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. . . .
[MCL 15.240(6).]
Additionally, the circuit court must award the requesting party $500 in punitive damages if it
determines that the public body "arbitrarily and capriciously violated [the FOIA] by refusal or
delay in disclosing or providing copies of a public record." MCL 15.240(7).
"A party prevails in the context of an FOIA action 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 the plaintiff." Scharret v Berkley, 249 Mich App 405, 414; 642
NW2d 685 (2002).
The circuit court specifically found that plaintiff was the prevailing party and that "it was
necessary for the lawsuit to be filed to produce the tape." Defendant fails to show that this
finding is clearly erroneous, because it is undisputed that defendant did not release the tape until
ordered to do so by the circuit court. The circuit court plainly considered the relevant factors in
reaching its conclusion that plaintiff was the prevailing party.
Defendant next argues that the circuit court erred in finding that plaintiff was the
prevailing party because the decision in the family-division proceeding, rather than the circuit
court's order in this action, compelled release of the tape. We disagree. Defendant's denial of
plaintiff 's FOIA request constituted a final decision to deny the request. MCL 15.235(4).
-5-
Plaintiff had the right, therefore, to institute this litigation, MCL 15.240(1)(b), and, at the
conclusion of this litigation, the circuit court ordered production of the tape. In contrast,
defendant's motion for a protective order in the family-division proceeding sought only to limit
the minor's attorney's use of the tape, and the order denying defendant's motion did not require
defendant to provide the tape to plaintiff. Additionally, defendant's motion addressed only one of
defendant's claimed exemptions from disclosure. The instant litigation was reasonably necessary
to determine that all of defendant's claimed exemptions lacked merit.
Similarly, the circuit court's deferral to the family division concerning the minor's right to
a fair trial does not prevent a finding that the instant action had a "substantial causative effect" on
the release of the tape. Although the circuit court stayed the effect of its order until after the
hearing in the family division, it specifically held that defendant's "reasons . . . for nondisclosure"
lacked merit. Moreover, at the hearing on plaintiff 's motion for attorney fees, the circuit court
noted that the family division "in effect, . . . agreed with the decision that was made earlier . . . ."
Accordingly, it is clear that the circuit court ruled on both of the exemptions claimed by
defendant, not just the minor's right to a fair trial. For all of these reasons, we find that the circuit
court properly concluded that plaintiff prevailed in the instant action.
Defendant next asserts that the circuit court erred in awarding plaintiff costs and attorney
fees incurred in opposing defendant's motion for a protective order in the family division because
the costs and fees were not incurred in the FOIA action. We disagree. Defendant emphasizes the
words "under this section" in MCL 15.240(6), but fails to read the phrase in context. The statute
states that "[i]f a person . . . prevails in an action commenced under this section" the circuit court
must award reasonable attorney fees. Id. (Emphasis added.) Construing the plain language of
the statute, People v Koonce, 466 Mich 515, 518; 648 NW2d 153 (2002), we find that as long as
an action for disclosure of public records is initiated pursuant to the FOIA, the prevailing party's
entitlement to an award of reasonable attorney fees, costs, and disbursements includes all such
fees, costs, and disbursements related to achieving production of the public records. The fact that
a portion of the requested attorney fees were incurred in a separate, related matter does not
preclude recovery of that portion of the attorney fees. Rather, the circuit court may consider the
fact that the prevailing party incurred fees and costs in multiple proceedings in determining
whether the requested sum is reasonable.5 The circuit court did not err as a matter of law by
concluding that plaintiff could recover attorney fees incurred as a result of its participation in the
family-division proceeding.
5
In Michigan Tax Mgt Services Co v Warren, 437 Mich 506, 509; 473 NW2d 263 (1991), an
action under the FOIA, our Supreme Court adopted the analysis employed in Wood v DAIIE, 413
Mich 573, 587-588; 321 NW2d 653 (1982), which cited the factors listed in Crawley v Schick, 48
Mich App 728, 737; 211 NW2d 217 (1973), as appropriate criteria for the circuit court to
consider in determining whether requested attorney fees are reasonable. "'[A] trial court should
consider the guidelines of Crawley[; however,] it is not limited to those factors in making its
determination.'" Michigan Tax Mgt Services Co, supra at 510, quoting Wood, supra at 588.
-6-
Moreover, we find that the circuit court did not clearly err by finding that plaintiff 's
participation in the family-division hearing was necessary in light of the facts of this case. Rather
than conclusively resolving the validity of its objections to releasing the tape in the FOIA action,
defendant chose to pursue a protective order in the underlying family-division proceeding. The
circuit court did not clearly err in finding that plaintiff acted reasonably by intervening in the
family-division proceeding to oppose defendant's motion for a protective order in furtherance of
its claim under the FOIA.
On cross-appeal, plaintiff argues that the circuit court erred by refusing to award the costs
and attorney fees it incurred before August 21, 2000, the date when counsel in the familydivision proceeding signed affidavits stating that they did not object to the release of the tape.
We agree. In its ruling on plaintiff 's motion for attorney fees, the circuit court limited its award
to fees plaintiff incurred on or after August 21, 2000, because defendant "probably had a belief
that [wa]s reasonable that the release of the tape may impact" the minor's trial. The circuit court
erred, however, by limiting the award in this manner. The language of MCL 15.240(6) does not
permit the circuit court to limit the prevailing party's request for attorney fees to those incurred
only when the defendant's refusal to disclose the public records is unreasonable. Instead, the
statute provides without qualification that the circuit court must award the prevailing party
reasonable attorney fees, costs, and disbursements. If the circuit court had determined that
plaintiff prevailed only in part, it might have exercised its discretion to award plaintiff only a
portion of its reasonable attorney fees, MCL 15.240(6), but no such finding was made.
Accordingly, we reverse the portion of the circuit court's decision limiting plaintiff 's recovery of
reasonable attorney fees, and remand for a determination of reasonable attorney fees and costs
incurred before August 21, 2000.
Lastly, plaintiff argues that the circuit court erred in denying its request for punitive
damages under MCL 15.240(7). We agree. We review for clear error the circuit court's finding
that defendant did not act arbitrarily and capriciously. Yarbrough v Dep't of Corrections, 199
Mich App 180, 185; 501 NW2d 207 (1993). "Even if defendant's refusal to disclose or provide
the requested materials was a statutory violation, it was not necessarily arbitrary or capricious if
defendant's decision to act was based on consideration of principles or circumstances and was
reasonable, rather than 'whimsical.'" Tallman v Cheboygan Area Schools, 183 Mich App 123,
126; 454 NW2d 171 (1990), quoting Laracey v Financial Institutions Bureau, 163 Mich App
437, 441; 414 NW2d 909 (1987).
Here, the circuit court found that defendant had a reasonable belief (at least for a period)
that release of the tape could compromise the minor's right to a fair trial, and that defendant's
decision to withhold the tape was not arbitrary and capricious. This finding was clearly
erroneous. Throughout the proceedings, defendant consistently failed to articulate any specific
reasons why disclosure of the tape would deprive the minor of a fair trial, other than that the tape
would receive extensive media attention. In particular, while admitting in both proceedings that
plaintiff, and therefore the public, was entitled to release of the tape, defendant offered no basis
for concluding that the minor's right to a fair trial would not be adequately protected by the
prosecutor and the minor's attorney, each of whom had the direct responsibility to protect the
minor's rights and approved the release of the tape.
-7-
Despite knowing that the tape was subject to disclosure, defendant pursued a strategy that
delayed release of the tape for weeks after plaintiff submitted its FOIA request. Even after the
prosecution and the minor's attorney approved release of the tape, defendant refused to release it
until ordered to do so by the circuit court. Under these circumstances, we conclude that the
circuit court clearly erred in finding that defendant did not act arbitrarily and capriciously in
withholding the tape. Accordingly, we reverse the circuit court's denial of plaintiff 's request for
punitive damages. On remand, the circuit court must award plaintiff punitive damages in
accordance with MCL 15.240(7).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
Schuette, J., concurred.
/s/ Kurtis T. Wilder
/s/ Bill Schuette
-8-
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