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### STATE OF MICHIGAN

COURT OF APPEALS

PHAEDRA PETERSEN,

Plaintiff-Appellant, UNPUBLISHED April 28, 2016

v No. 323868 Macomb Circuit Court CHARTER TOWNSHIP OF SHELBY, LC No. 2014-001422-CZ

Defendant-Appellee.

Before: B ECKERING , P.J., and O WENS and K. F. K ELLY , JJ.

P ER C URIAM

. In this action pertai ning to alleged violations of the Freedom of Information Act, MCL 15.231 et seq . (FOIA), plaintiff, Phaedra Pet erson, appeals as of right from the trial court’s opinion and order denying her motion for summary disposition un der MCR 2.116(C)(9) and (10) and granting defendant Charter T ownship of Shelby’s motion for summary disposition under MCR 2.116(C)(7), (8), and (10). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arose from plaintiff’s attempts to obtain police rec ords from the Shelby Township Police Department. O n February 18, 2014, plaintiff pr esented a written request (dated February 17, 2014) seeking documents and police reports related to a retail fraud investigation involving allegations that a certain individual shoplifted from a Kohl’s department store. 1 While

1 In her letter, plaintiff indicated that she approved up to $15 0 “to be used for the purpose of searching and copying” the requested records, and requested a c all for further authorization if the cost would be higher. She also asked that if defendant denied in whole or in part her request, that defendant “justify all dele tions by reference to specific exemptions of the act.” Although her letter indicated that her request was being submitted “pursuant to the state open records act,” she alleged in her complaint that th e person who received her lette r refused to accept it unless that language was stricken.-2- defendant disclosed documents in response to plaintiff’s reques t at a cost of $62.00, plaintiff claims that the disclosed docum ents were not the documents she was seeking.

On March 10, 2014, plaintiff submitted another record request (dated March 7, 2014), in which she specifically requested “pursuant to the state open re cords act,” “access to and copies of case 11-41282 for retail fraud.” 2 Plaintiff alleges that, four days later, a Shelby Township employee told her that documents related to Case No. 11-41282 w ould not be disclosed because the case—entailing an incident that occurred in 2011—was still under investigation and plaintiff had not made an “official” FOIA request for the documents. No additional documents were provided to plaintiff in res ponse to her second request.

On April 8, 2014, plaintiff’s counsel submitted an online FOIA request on plaintiff’s behalf requesting “all documents related to Shelby Police Depar tment (SPD) incident report #11- 41282,” as well as “all SPD dispatch and run reports for the da y in which report #11-41282 was created,” and “all records, audi o recordings of telephone calls between Phaedra Petersen and ‘Grace,’ at Shelby Twp.”

On April 11, 2014, plaintiff filed a complaint alleging (1) a FOIA violation with respect to the February 18, 2014 record req uest, (2) a FOIA violation w ith respect to the March 10, 2014 record request, and (3) a claim for a declaratory judgment that the Shelby Township Police Department is not subject to any FOIA exemptions with respect t o Case No. 11-41282 and that defendant has failed to meet its burden of demonstrating a vali d exemption to disclosure.

On April 15, 2014, defendant produced the incident report in i ts Case No. 11-41282.

Plaintiff moved for summary disposition under MCR 2.116(C)(9) and (10), and for attorney fees and costs under MCL 15.240, MCR 2.114(E), and MCL 600.2591. Defendant moved for summary disposition under MCR 2.116(C)(7), (8), and ( 10). Although the parties noticed their motions for a hearing, no such hearing took place . Instead, the trial court issued a written opinion and order granti ng summary disposition to defen dant and denying plaintiff’s motion. This appeal ensued.

II. STANDARD OF REVIEW

This Court reviews de novo a tria l court’s grant or denial of summary disposition in order to determine whether the moving party was entitled to judgment as a matter of law. Arabo v Michigan Gaming Control Bd , 310 Mich App 370, 382; 872 NW2d 223 (2015). We also review

2 In her letter, plaintiff again indicated that she approved up to $150 in charges for the copies and requested a call if the cost would be higher. She also asked t hat if defendant denied in whole or in part her request, that defendant “justify all deletions by r eference to specific exemptions of the act.” Plaintiff avers in her com plaint that she obtained the i nvestigation file number from defendant by way of a phone call with the Shelby Township Polic e Department on March 7, 2014.-3- de novo the statutory interpretation and application of FOIA. ESPN, Inc v Michigan State University , 311 Mich App 662, ___; ___ NW2d ___ (2015). This Court revie ws a trial court’s factual findings for clear error, but reviews discretionary det erminations for an abuse of discretion. Id

.

III. ANALYSIS

A. STATUTORY DAMAGES

Plaintiff first argues that the t rial court erred in concludin g that she was not entitled to statutory damages under MCL 15.240(7). To determine whether to award damages under FOIA, MCL 15.235(4) and MCL 15.240(7) must be read together. Local Area Watch v City of Grand Rapids

, 262 Mich App 136, 152-153; 683 NW2d 745 (2004). MCL 15.235(4) provides:

In a civil action to compel a public body’s disclosure of a pu blic record under section 10 [MCL 15.240], the court shall assess damages a gainst the public body pursuant to section 10(7) [ MCL 15.240(7)] if the court has done both of the following:

(a) Determined that the pub lic body has not complied with subs ection (2).

(b) Ordered the public body to d isclose or provide copies of a ll or a portion of the public record.

MCL 15.240(7) provides as follows:

If the court determines in an action commenced under this sect ion that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record, the court sh all order the public body to pay a civil fine of $1,000.00, which shall be deposited into the general fund of the state treasury. The court shall award, in addition to any actual or compensatory damages, punitive damages in the amount of $1,000. 00 to the person seeking the right to inspect or receive a copy of a publ ic record. The damages shall not be assessed against an individual, but shall be assessed against the next succeeding public body that is not an individual and t hat kept or maintained the public record a s part of its public function.

Thus, an award of damages is appropriate only where (1) there was a court order requiring disclosure of a public record, and (2) the court foun d that the defendant acted arbitrarily and capriciously in refusing to provide the request ed information. Local Area Watch

, 262 Mich App at 152-153. The trial court in this case conclude d that plaintiff was not entitled to statutory damages because the court did not order disclosure of any public record where defendant produced the records requested in the February 18, 20 14 and March 7, 2014 requests after the Complaint was filed, without a court order. Because the court did not order disclosure of a public record, the trial c ourt properly concluded that pla intiff was not entitled to statutory damages under MCL 15.235(4) and MCL 15.240(7). Local Area Watch, 262 Mich App at 152- 153.-4- B. PRODUCTION SUFFICIENCY

Plaintiff next argues that the trial court ignored defendant’s failure to disclose booking photographs and fingerprints in response to her FOIA requests. While plaintiff argues on appeal that her request for fingerp rints and booking photographs remai n outstanding, plaintiff admitted in her motion for summary disposition that the requested record s had been disclosed, that “an order compelling public record production is no longer at issue ,” and that the only issue that remained was plaintiff’s right to attorney fees. Accordingly, plaintiff has not shown that the trial court erred with respect t o the booking photographs and fingerp rints.

C. ATTORNEY FEES AND COSTS

Plaintiff next argues that the trial court erred in failing to award her reasonable attorneys’ fees and costs under MCL 15.240(6), which provides:

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 unde r this section, the court shall award reasonable attorneys’ fees, costs, and disbur sements. If the person or public body prevails in part, the court may, in its d iscretion, award all or an appropriate portion of reasonable attorneys’ fees, costs, an d disbursements. The award shall be assessed against the public body liable for damages under subsection (7).

Thus, to be entitled to attorne y fees and costs, a plaintiff mu st prevail “in its asse rtion of the right to inspect, copy, or receive a copy of all or a portion of a pu blic record.” Local Area Watch , 262 Mich App at 149. The test is whether (1) the action was reason ably necessary to compel the disclosure, and (2) the action had the substantial causative ef fect on the delivery of the information to the plaintiff. Id.

In this case, the trial court denied plaintiff’s request for a ttorney fees and costs on the ground that the court never made a finding that the requested d ocuments were subject to disclosure under FOIA, “nor was it requested to do so.” The tr ial court never determined whether the requested documents were subject to disclosure unde r FOIA because defendant released the documents four days after the complaint was filed. This Court has held, however, that “the disclosure of the reco rds after plaint iff commenced t he circuit court ac tion rendering the FOIA claim moot as to the late-disclosed items does not void pl aintiff’s entitlement to fees and costs under [MCL 15.240(6)].” Local Area Watch

, 262 Mich App at 150. Therefore, even though the requested documents had been disclosed to plaintiff, the trial court should have determined whether the documents were subject to FOIA disclosur e for the purpose of determining plaintiff’s right to attorney fees and costs.

Furthermore, the trial court erred in finding that plaintiff d id not request a determination that the documents were subject to disclosure under FOIA. In h er motion for summary disposition, plaintiff argued tha t she was entitled to attorney fees and costs because no exemption justified the failure to disclose the requested documents. The refore, contrary to the trial court’s finding, plaintiff requested a det ermination whether the reques ted documents were subject to disclosure under FOIA. Without making this determination, the trial court could not properly-5- determine whether plaintiff was entitled to attorney fees and c osts. Accordingly, we remand this case to the trial court for a determination of (1) whether the requested documents were subject to disclosure under FOIA, (2) whet her the action was reasonably ne cessary to compel the disclosure, and (3) whether the action had the substantial caus ative effect on the delivery of the information to plaintiff.

D. DECLARATORY RELIEF

Finally, plaintiff argues that the trial court erred in dismis sing her claim for a declaratory judgment that “the Shelby Township Police Department Case ID #1 1-41282 is not subject to any exemptions under Michigan’s FOIA, and that Defendant has failed to meet its burden showing a valid exemption to disclosure.” Where the requested documents were disclosed, however, we find no error in the dismissal of the declaratory judgment clai m. MCR 2.605(A) empowers a circuit court to issue a declaratory judgment in “a case of act ual controversy[.]” PT Today, Inc v Comm’r of the Office of Fin and Ins Servs

, 270 Mich App 110, 127; 715 NW2d 398 (2006). Because the existence of an actual controversy is a condition p recedent to the invocation of declaratory relief, “a court ma y not ‘decide moot questions in the guise of giving declaratory relief.’ ” Id.

, quoting Dep’t of Social Services v Emmanuel Baptist Preschool , 434 Mich 380, 470; 455 NW2d 1 (1990) (opinion by B OYLE , J). The question whether plaintiff was entitled to receive the documents became moot once the documents were produ ced by defendant. Therefore, plaintiff has not show n that the trial court erred i n dismissing the declaratory judgment claim. While a determination of whether the requested documents were subject to disclosure under FOIA is salient to the issue of whether plaint iff is entitled to costs and attorney fees, declaratory relief is not possible because the documents have already been produced to plaintiff.

E. CONCLUSION

Accordingly, we affirm the trial court’s grant of summary disp osition in favor of defendant with respect to plainti ff’s claims for statutory dama ges and declaratory relief. We reverse the trial court’s denial of attorney fees and costs and remand to the trial court for a determination of (1) whether the requested documents were subje ct to disclosure under FOIA, (2) whether the action was reasonably necessary to compel the d isclosure, and (3) whether the action had the substantial causative effect on the delivery of the information to the plaintiff, for the purpose of determining whethe r plaintiff is entitled to att orney fees and costs under MCL 15.240(6).

Affirmed in part, reversed in part, and remanded for further p roceedings consistent with this opinion. We do not ret ain jurisdiction.

/s/ Jane M. Beckering /s/ Donald S. Owens /s/ Kirsten Frank Kelly