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STATE OF MICHIGAN 

COURT OF APPEALS 

CRAIG A. ROLFE, P.L.L.C, 

 Plaintiff, 

and 

GLENN MILLER, 

 Plaintiff-Appellant, 

UNPUBLISHED 

December 29, 2015 

v No. 327513 

St. Joseph Circuit Court 

LAKE TEMPLENE IMPROVEMENT BOARD, LC No. 14-000925-CZ 

 Defendant-Appellee. 

Before: OWENS, P.J., and MURPHY and HOEKSTRA, JJ. 

PER CURIAM. 

 In this action under the Freedom of Information Act (FOIA), MCL 15.231 et seq., 

plaintiff Glenn Miller appeals as of right the trial court’s April 27, 2015 order, which granted 

summary disposition in favor of him and co-plaintiff Craig A. Rolfe, PLLC1 on the basis of 

defendant Lake Templene Improvement Board (the Improvement Board)’s failure to timely 

respond to a FOIA request, but which denied plaintiffs’ request for attorneys’ fees.2

 The trial 

court also denied plaintiffs’ motion for reconsideration of the attorneys’ fee issue. Because 

Miller did not make a FOIA request, he could not be a prevailing party in this FOIA action, and 

we therefore affirm the trial court’s denial of plaintiffs’ request for attorneys’ fees. 

 The record shows that Miller retained Rolfe sometime in 2014 to investigate the alleged 

misappropriation of public funds by the Improvement Board, a public body. As part of that 

 

1

 Craig A. Rolfe is the sole member of Craig A. Rolfe, PLLC. For ease of reference, unless 

specifically noted otherwise, we will refer to Rolfe and his firm together as “Rolfe.” 

2

 The Improvement Board has not cross-appealed the trial court’s conclusion that it violated the 

FOIA. 
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investigation, Rolfe sent various FOIA requests to several different public bodies, including to 

the Improvement Board, on September 18, 2014. The FOIA request was signed by Rolfe, 

without mention of Miller or the fact that Rolfe was acting on behalf of a client. The 

Improvement Board did not respond to this request. After a follow-up letter sent by Rolfe to the 

Improvement Board on October 21, 2014 also went unanswered, Rolfe initiated this litigation, 

naming Rolfe’s law firm as the only plaintiff. This complaint included no mention of Miller or 

the fact that Rolfe had been engaged to act on behalf of a client. Among other things, Rolfe 

sought a determination that the Improvement Board violated the FOIA, an order compelling it to 

disclose the requested records, and an award of attorneys’ fees, costs, and disbursements 

pursuant to MCL 15.240(6). 

 At a pretrial conference on January 5, 2015, the Improvement Board provided Rolfe with 

a packet of materials apparently satisfying Rolfe’s FOIA request. On January 7, 2015, the trial 

court granted a motion by Rolfe to amend his complaint to add Miller as a co-plaintiff. The 

substance of the amended complaint was nearly identical to that of the original, with the 

exception that the amended complaint alleged that the September 18, 2014 FOIA request had 

been sent on Miller’s behalf as Rolfe’s client. 

 Subsequently, the Improvement Board moved the trial court for summary disposition. 

Plaintiffs responded and requested summary disposition in their own favor. A hearing on the 

Improvement Board’s motion was then held on April 27, 2015. After hearing the parties’ 

arguments, the trial court determined that the Improvement Board violated the FOIA by failing 

to respond to Rolfe’s September 18, 2014 FOIA request in a timely, permissible manner as 

required by the Act. However, the trial court denied plaintiffs’ request for attorneys’ fees. In 

relevant part, the trial court made the determination that Rolfe made the FOIA requests in his 

own name, in a personal capacity. Consequently, the trial court reasoned that Rolfe, not Miller, 

was the prevailing party and, because Rolfe was an attorney acting on his own behalf, the trial 

court concluded that he could not claim attorneys’ fees for his own services. The trial court 

subsequently denied plaintiffs’ motion for reconsideration of the attorneys’ fee issue. Miller now 

appeals as of right. 

 On appeal, Miller maintains that, because he prevailed in his lawsuit to obtain the release 

of the requested information under the FOIA, he was entitled to reasonable attorneys’ fees under 

MCL 15.240(6) and that the trial court erred by denying this request. Miller disputes the trial 

court’s finding that Rolfe, not Miller, prevailed in the FOIA action. According to Miller he 

should be recognized as a prevailing party because, at all relevant times, Rolfe acted on Miller’s 

behalf in a representative capacity and Miller was in fact added to the FOIA action by Rolfe’s 

amended complaint. Finally, because Rolfe represented Miller, Miller contends that the general 

rule prohibiting a pro per party, including attorneys representing themselves, from collecting 

attorneys’ fees does not apply in this case. 

 In an action under the FOIA, we review de novo the legal determinations made by the 

trial court. King v Mich State Police Dep’t, 303 Mich App 162, 174; 841 NW2d 914 (2013). 

Likewise, issues of statutory interpretation, such as the proper interpretation of the FOIA, present 

questions of law which we review de novo. Thomas v New Baltimore, 254 Mich App 196, 201; 

657 NW2d 530 (2002). Any factual determinations in a FOIA action are reviewed for clear 
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error, while any discretionary determinations are reviewed for an abuse of discretion. King, 303 

Mich App at 174-175. 

 “The FOIA is a mechanism through which the public may examine and review the 

workings of government and its executive officials.” Thomas, 254 Mich App at 201. Under the 

FOIA, except where a specific exception applies, a person has the right, upon submitting a 

written request to a public body, “to inspect, copy, or receive copies of the requested public 

record of the public body.” MCL 15.233(1); Arabo v Mich Gaming Control Bd, ___ Mich App 

___, ___; ___ NW2d ___ (2015), slip op at 5. A person desiring to inspect or receive a copy of a 

public record must “make a written request for the public record to the FOIA coordinator of a 

public body.” MCL 15.235(1). “[O]nce a request under the FOIA has been made, a public body 

has a duty to provide access to the records sought or to release copies of those records unless the 

records are exempted from disclosure.” Arabo, slip op at 5 (quotation marks and citation 

omitted). Under Section 5(2) of the Act, MCL 15.235(2), a public body must generally respond 

to a FOIA request within five business days, and the failure to do so constitutes a final 

determination to deny the request, MCL 15.235(3). 

 Once a public body makes a final determination to deny a request, either by failing to 

respond or by issuing a written notice of denial to the requesting person, the requesting person 

then has the option to commence a civil action. MCL 15.235(8)(c). In particular, MCL 

15.235(8) states: 

If a public body makes a final determination to deny in whole or in part a request 

to inspect or receive a copy of a public record or portion of that public record, the 

requesting person may do either of the following: 

(a) Appeal the denial to the head of the public body pursuant to [MCL 15.240]. 

(b) Commence a civil action, pursuant to [MCL 15.2403]. 

 

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 MCL 15.240(1) provides: 

If a public body makes a final determination to deny all or a portion of a request, 

the requesting person may do 1 of the following at his or her option: 

(a) Submit to the head of the public body a written appeal that specifically states 

the word “appeal” and identifies the reason or reasons for reversal of the denial. 

(b) Commence a civil action in the circuit court, or if the decision of a state public 

body is at issue, the court of claims, to compel the public body's disclosure of the 

public records within 180 days after a public body's final determination to deny a 

request. [Emphasis added.] 
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 When an action has been commenced under MCL 15.240, if successful, the party seeking 

the records may obtain reasonable attorneys’ fees, costs, and disbursements as set forth in MCL 

15.240(6). This provision states: 

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 attorney’ 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).] 

In other words, “[p]ursuant to MCL 15.240(6), a trial court must award reasonable costs and 

attorney fees to a plaintiff who successfully seeks the release of records in the circuit court.” 

Krug v Ingham Co Sheriff’s Office, 264 Mich App 475, 483; 691 NW2d 50 (2004).4

 However, 

as an exception to this general rule, it has been long-recognized that a litigant proceeding in 

propria persona, including an attorney acting on his own behalf, cannot claim attorneys’ fees 

under the FOIA. Laracey v Fin Institutions Bureau, 163 Mich App 437, 446; 414 NW2d 909 

(1987); Schinzel v Wilkerson, 110 Mich App 600, 604; 313 NW2d 167 (1981). See also Omdahl 

v W Iron Co Bd of Ed, 478 Mich 423, 430-432 & n 4; 733 NW2d 380 (2007). 

 Given these principles, in this case, we conclude that the trial court properly denied 

plaintiffs’ request for attorneys’ fees under MCL 15.240(6) because Miller could not prevail in a 

FOIA action when he was not “the requesting party” and, insofar as Rolfe represented himself, 

he could not claim attorneys’ fees while proceeding in propria persona. In particular, as noted, a 

civil action under the FOIA may be commenced by “the requesting party.” See MCL 15.235(8); 

MCL 15.240(1). By specifically naming “the requesting party” in both MCL 15.235(8) and 

MCL 15.240(1) as the individual empowered to file suit, the Legislature has made plain that only

“the requesting party” has authority to initiate a civil FOIA suit under these provisions. Cf. 

Miller v Allstate Ins Co, 481 Mich 601, 611; 751 NW2d 463 (2008). And, plainly, Rolfe was 

“the requesting party” in this case. The facts show that Rolfe sent FOIA requests in his own 

name on September 18, 2014 and that these FOIA requests included absolutely no mention of 

Miller or the fact that Rolfe had been retained by Miller.5

 Because Rolfe was “the requesting 

 

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 We note that numerous cases have held that a plaintiff is entitled to attorneys’ fees under MCL 

15.240(6) even if the public body discloses the requested records during the pendency of the 

litigation, thereby rendering the FOIA claim moot. See, e.g., Krug, 264 Mich App at 483; 

Thomas, 254 Mich App at 202. Thus, in this case, to the extent the trial court held that attorneys’ 

fees were inappropriate because, during litigation, defendant disclosed the relevant materials 

before ordered to so by the trial court, denial of plaintiffs’ request for attorneys’ fees on this basis 

was erroneous. 

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 Aside from Rolfe’s FOIA requests, in a separate letter to defendant entitled “Misappropriation 

of special assessment revenues from Sherman Township/Nottawa Township Special Assessment 

District,” which was also dated September 18, 2014, Rolfe mentioned that he had been 

“retained” by a “Lake Templene property owner” to investigate the possible misappropriation of 
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party,” Rolfe could commence a civil action in his own name under MCL 15.240(1). In contrast, 

given that Miller did not make a FOIA request, there is no provision that would empower Miller 

to file or maintain an action under the FOIA. 

 Given that Miller could not maintain an action under MCL 15.240, it follows that he 

could not obtain attorneys’ fees under MCL 15.240(6). Again, MCL 15.240(6) provides for the 

award of reasonable attorneys’ fees 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.” 

An action can only be “commenced under this section” when it is brought by “the requesting 

party.” See MCL 15.240(1). Moreover, a person “has the right to inspect, copy, or receive 

copies” of public records “upon providing a public body’s FOIA coordinator with a written 

request.” MCL 15.233(1). In other words, it is only “upon” the submission of a written request 

that a person has “asserted” the right to receipt of public documents, see MCL 15.233(1), MCL 

15.233(2), and therefore it is only “the requesting party” who can be said to have asserted this 

right as required to claim attorneys’ fees under MCL 15.240(6). Quite simply, only the 

requesting party may bring an action under the FOIA, and only a requesting party can be 

considered to have prevailed in such an action within the meaning of MCL 15.240(6). 

 Because Miller failed to assert his right to public information by submitting a FOIA 

request, he could not file a civil action and he could not have prevailed within the meaning of 

MCL 15.240(6). Consequently, Miller is not entitled to an award of attorneys’ fees. 

 Finally, as noted, because Rolfe submitted a FOIA request, he could commence a FOIA 

action in his own name following the final denial of that request. See MCL 15.235(8); MCL 

15.240(1). However, when he did so in his own name based on his own FOIA request, he 

proceeded in propria persona and he was therefore ineligible for attorneys’ fees. See Laracey, 

163 Mich App at 446. See also Burka v US Dep’t of Health & Human Servs, 142 F3d 1286, 

1290 (1998). Overall, the trial court properly denied plaintiffs’ request for attorneys’ fees under 

MCL 15.240(6). 

 

funds. To the extent that Miller relies on this letter, we find that reliance unavailing. In that 

letter, Miller was not identified by name as the client and, like the other correspondence from 

Rolfe, this letter was signed solely by Rolfe. Moreover, while this letter requested a “full 

accounting of all special assessment revenues,” this letter did not purport to be a FOIA request 

made in accordance with MCL 15.235(1). Rather, the letter, signed by Rolfe, specified that “I 

am also requesting these public records pursuant to the Michigan Freedom of Information Act by 

separate correspondence directed to the FOIA Coordinator of each of the three public bodies.” 

In short, this letter was not a FOIA request and, in any event, the oblique reference in this letter 

to an anonymous property owner does not establish Miller as a “requesting party” under the 

FOIA. Cf. Brown v US EPA, 384 F Supp 2d 271, 276 (DDC 2005) (considering similar scenario 

under federal FOIA); Mahtesian v US Office of Pers Mgt, 388 F Supp 2d 1047, 1048 (ND Cal 

2005) and cases therein. 
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 Affirmed. 

/s/ Donald S. Owens 

/s/ William B. Murphy 

/s/ Joel P. Hoekstra