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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ESTATE OF CHANCE AARON NASH, by 

DIANE NASH, Personal Representative,

Plaintiff-Appellant,

FOR PUBLICATION

October 10, 2017

9:10 a.m.

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 workproduct 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 latedisclosed 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