            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



JOHN M. SCHAUBROECK,                                               UNPUBLISHED
                                                                   May 14, 2019
              Plaintiff-Appellant,

v                                                                  No. 345930
                                                                   Court of Claims
MICHIGAN STATE UNIVERSITY and                                      LC No. 18-000016-MZ
MICHIGAN STATE UNIVERSITY BOARD OF
TRUSTEES,

              Defendants-Appellees.


Before: SWARTZLE, P.J., and M. J. KELLY and TUKEL, JJ.

PER CURIAM.

        Plaintiff, John M. Schaubroeck, challenges the trial court’s order denying his motion for
summary disposition and granting a motion for summary disposition brought by defendants,
Michigan State University (MSU) and the MSU Board of Trustees, under MCR 2.116(C)(10).
For the reasons stated in this opinion, we affirm.

                                       I. BASIC FACTS

       Schaubroeck began working as a professor at MSU in July 2008. He had a joint
appointment in the Eli Broad College of Business’s Department of Management and the College
of Social Science’s Department of Psychology. A 2012 memorandum of understanding
memorialized the appointment of Schaubroeck as the John A. Hannah Chair of Management and
Psychology. As a Hannah Professor, Schaubroeck’s performance was subject to a five-year
review. And, in accordance with the Broad College’s policies and procedures governing review
of named/endowed faculty positions, the Dean of the Broad College convened a committee to
review Schaubroeck’s performance.

        The committee completed its review in January 2017, and in May 2017, the Deans of the
Broad College of Business and the College of Social Science notified Schaubroeck of their
decision to renew his appointment as Hannah Professor on a two-year probationary basis. The
deans cited the review committee’s finding that Schaubroeck’s accomplishments did not meet
the standards for the Hannah Professorship, the committee’s recommendations, and their own


                                               -1-
assessment. They further instructed Schaubroeck on several areas of improvement to ensure his
reappointment at the end of the probationary period. In their letter, the deans stated the names of
the members of the review committee.

       Schaubroeck filed a FOIA request for the committee report in October 2017. Defendants
denied the request, claiming that the Bullard-Plawecki Employee Right to Know Act, MCL
423.501 et seq., protected the identities of persons making an employee reference and exempted
disclosure of the report, and asserting that the report was exempt from disclosure because it
contained communications within a public body that were advisory in nature, “cover[ed] other
than purely factual materials,” and were preliminary to a final determination. Schaubroeck
appealed the decision, but the MSU President denied the appeal. Schaubroeck then filed a
complaint in the Court of Claims, challenging the denial of the FOIA request.

        The parties filed competing motions for summary disposition. Before ruling on the
parties’ motions, the trial court ordered defendants to produce a copy of the committee report
under seal for an in camera review because MCL 15.243(1)(m) required the trial court to
evaluate whether the document contained nonfactual matters. After reviewing the report, the
trial court granted defendants’ motion, denied Schaubroeck’s motion, and produced a redacted
copy of the report. In doing so, the trial court applied the frank communication exemption to
FOIA, finding that the report was advisory in nature, was preliminary to the deans’ probationary
renewal decision, and that it contained other than purely factual matters. See MCL
15.243(1)(m). The trial court further determined that the deans’ letter served the public interest
in disclosure, so the public interest in confidentiality and encouraging frank communication
outweighed the public interest in disclosure in this particular case. Consequently, the trial court
redacted all nonfactual matters from the report.

        Schaubroeck moved for reconsideration, arguing that the trial court palpably erred by
failing to consider whether Schaubroeck was entitled to attorney fees and costs because he
prevailed when the trial court released nonexempt portions of the report. Schaubroeck also
asserted that the report should have been disclosed in full. Defendants opposed the request for
attorney fees and costs. The trial court denied Schaubroeck’s motion for reconsideration and
declined to grant attorney fees and costs because Schaubroeck did not prevail on his central
claim and because Schaubroeck only received a redacted copy of the committee report after the
trial court raised the statutory basis for separating nonexempt from exempt material and
producing the nonexempt material.

                       II. FRANK-COMMUNICATIONS EXEMPTION

                                 A. STANDARD OF REVIEW

        Schaubroeck argues that the committee report was not exempt from disclosure under the
frank communication exemption, MCL 15.243(1)(m). Schaubroeck maintains that the
committee report was not advisory in nature and was not preliminary to the deans’ decision and
that the public interest in disclosure was not outweighed by the public interest in confidentiality.
This Court reviews de novo matters of statutory interpretation as well as a trial court’s ruling on
a motion for summary disposition. Howell Ed Ass’n, MEA/NEA v Howell Bd of Ed, 287 Mich
App 228, 234; 789 NW2d 495 (2010). Summary disposition is proper under MCR 2.116(C)(10)

                                                -2-
when, “[e]xcept as to the amount of damages, there is no genuine issue as to any material fact,
and the moving party is entitled to judgment or partial judgment as a matter of law.” When
evaluating a motion for summary disposition under MCR 2.116(C)(10), the trial court considers
the evidence in the light most favorable to the nonmoving party to determine whether a genuine
issue of material fact remains. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).
In addition,

       the clear error standard of review is appropriate in FOIA cases where a party
       challenges the underlying facts that support the trial court’s decision. In that case,
       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. . . . [W]hen an appellate court reviews a decision
       committed to the trial court’s discretion, such as the balancing test at issue in
       [MCL 15.243(1)(m)], . . . the appellate court must review the discretionary
       determination for an abuse of discretion and cannot disturb the trial court’s
       decision unless it falls outside the principled range of outcomes. [Herald Co, Inc
       v Eastern Mich Univ Bd of Trustees, 475 Mich 463, 472; 719 NW2d 19 (2006).]

                                         B. ANALYSIS

         The purpose of FOIA is to make public records available to the people of this State to
ensure that they are “informed so that they may fully participate in the democratic process.”
MCL 15.231(2). To that end, public records are generally available upon request unless
specifically exempted. MCL 15.233(1). Because FOIA favors disclosure of public records,
those exemptions should be interpreted narrowly. Rataj v Romulus, 306 Mich App 735, 748-
749; 858 NW2d 116 (2014). The public body bears the burden of proving that the exemption
applies. Bukowski v Detroit, 478 Mich 268, 274; 732 NW2d 75 (2007). In this case,
Schaubroeck disputes the trial court’s application of the frank communication exemption, which
states in pertinent part:

                (1) A public body may exempt from disclosure as a public record under
       this act any of the following:

                                              * * *

              (m) Communications and notes within a public body or between public
       bodies of an advisory nature to the extent that they cover other than purely factual
       materials and are preliminary to a final agency determination of policy or action.
       This exemption does not apply unless the public body shows that in the particular
       instance the public interest in encouraging frank communication between officials
       and employees of public bodies clearly outweighs the public interest in
       disclosure. . . . [MCL 15.243(1)(m).]

       A requested document is exempt from disclosure as a “frank communication” if “it (1) is
a communication or note of an advisory nature made within a public body or between public
bodies, (2) covers other than purely factual material, and (3) is preliminary to a final agency
determination of policy or action.” Herald Co, 475 Mich at 475. If “the document fails any of

                                                -3-
these threshold qualifications, then the frank communication exemption simply does not apply.”
Id. If it does qualify as a frank communication, “the trial court must engage in the balancing test
and determine if the public interest in encouraging frank communication clearly outweighs the
public interest in disclosure.” Bukowski, 478 Mich at 275. The parties and courts must “be
cognizant of the competing interests at stake in the particular instance.” Herald Co, 475 Mich at
474. In addition, our Supreme Court noted that “the Legislature decided that the public has an
interest in encouraging frank communication so that public officials’ ongoing and future
willingness to communicate frankly in the course of reaching a final agency determination is an
essential component in the balancing test.” Id. Finally, in applying the frank communication
exemption, the trial court must “separate the [exempt material] from the purely factual material
and disclose the latter to [the] plaintiff.” Id. at 482.

        Schaubroeck argues that the committee report was not advisory. However, he overlooks
the policies and procedures governing review of named/endowed positions, and he minimizes the
contents of the deans’ letter. Consistent with the review procedure, the deans appointed a review
committee, the committee considered several documents, including Schaubroeck’s statement,
and the committee reviewed Schaubroeck’s performance pursuant to the three main criteria for
review. Further, the review procedure explicitly states that the “[t]he committee plays an
advisory role to the Dean,” and it directs the committee to provide the dean with a
recommendation for or against renewal of the faculty member’s placement in the
named/endowed position. The unredacted text lists Schaubroeck’s past accomplishments in two
of those areas: research and scholarly contributions and external contributions. After the
committee conducted its review, the deans notified Schaubroeck of their decision to renew
Schaubroeck’s professorship on a probationary basis. The deans summarized the committee’s
finding that Schaubroeck did not meet the expectations for the Hannah Professorship and stated
that the committee’s review and their own assessment led to their conclusion that Schaubroeck’s
performance fell below the standards of the Hannah Professorship and warranted renewal of the
appointment on a two-year probationary basis.

       Schaubroeck criticizes the deans’ letter for including only one paragraph discussing his
shortcomings, and he claims that the letter is inadequate to constitute independent review.
Comparing this paragraph to the criteria listed in the policies and procedures shows that the
deans considered each review criterion.

        In the first category of research and scholarly contributions, the redacted committee
report noted Schaubroeck’s regular publications and an “uptick in output” in the prior year. The
deans advised Schaubroeck to increase research productivity and pursuit of external grant
funding where Schaubroeck would be the lead principal investigator, consistent with the higher
expectations and lower teaching assignments for a Hannah Professor.

        Second, regarding internal contributions, the deans directed Schaubroeck to increase
engagement with other faculty and doctoral students at MSU conducting research and to bridge
the relationship between the College of Business and the College of Social Science by attending
meetings, mentoring doctoral students, and providing service and leadership in the University.
The deans also instructed Schaubroeck to teach one doctoral seminar each year open to students
of both colleges and to lead one major university-level or college-level initiative. Although the
memorandum of understanding governing Schaubroeck’s joint appointment stated that he was

                                                -4-
not required to teach, the memorandum of understanding also instructed Schaubroeck to continue
working with students in both departments. The dean’s instruction that Schaubroeck teach one
doctoral seminar per year open to students in both colleges identified a reasonable way for
Schaubroeck to make internal contributions by working with students in both colleges, consistent
with his joint appointment.

       Third, in the area of external contributions, the committee report commended
Schaubroeck for serving as an editor of a leading journal when he first started as a Hannah
Professor and for speaking at other universities and professional meetings. The deans directed
Schaubroeck to demonstrate leadership in the profession and identified editorships and Board
memberships as examples of how to do so. It is possible to surmise from the deans’ specific
recommendations that the committee made certain findings or recommendations about
shortcomings in Schaubroeck’s performance. It is likewise clear that the review committee acted
in an advisory capacity. Accordingly, the trial court did not clearly err by concluding that the
committee report was advisory in nature.

       Schaubroeck argues that the committee report was not preliminary to the deans’ final
decision because it was an actual performance review that was separate and distinct from the
deans’ final determination. Schaubroeck is correct that the committee report was a performance
review. That review was conducted in accordance with the Broad College’s policies and
procedures for the review of a named/endowed faculty position. The review procedure directed
the review committee to provide the dean with a recommendation for or against renewal of a
named/endowed professorship. Therefore, the review committee generally reviews a faculty
member’s performance and makes a recommendation for or against renewal, while the dean
makes the ultimate decision regarding renewal. Consistent with the review procedure, the deans
used the committee report to reach a final determination, renewing Schaubroeck’s Hannah
Professorship on a two-year probationary basis. This procedure shows that the committee report
was preliminary to the deans’ decision.1

        Lastly, the trial court in this case noted the public interest favoring frank communication
among Schaubroeck’s peers in assessing his performance on his own merits and relative to other
professors. The trial court ruled that this interest “outweigh[ed] the public interest in disclosure
in this particular instance” because of the detailed discussion in the deans’ letter about
Schaubroeck’s performance and how he could improve his performance without making known
the individual opinions of the members of the review committee. In Herald Co, 475 Mich at
481, the Supreme Court affirmed the conclusion that an independent and thorough audit of the
financial expenditure on the Eastern Michigan University’s President’s house, which was the
basis of a protected communication between a University Vice President and a member of the



1
  Schaubroeck contends that the trial court erroneously characterized the deans’ letter as “one
and the same as the performance review of” Schaubroeck reflected in the committee report. The
trial court’s opinion does not contain any such statement. Instead, the trial court determined that
the committee report was a recommendation made to the deans, who made an independent
decision about the professorship.


                                                -5-
University’s Board of Regents, “tipped the balance in favor of nondisclosure . . . .” In this case,
Schaubroeck maintains that the deans’ letter does not serve the public interest in disclosure
because it contains no details about his performance. The deans’ letter contains several
recommendations, mirroring the criteria for evaluation, which were intended to allow
Schaubroeck to address the shortcomings in his performance and continue as a Hannah Professor
after the probationary period. Accordingly, the deans’ letter contained ample information served
by the public interest in disclosure, and Schaubroeck has not shown that the trial court abused its
discretion by ruling that the interest in frank communication outweighed the interest in public
disclosure because of the deans’ letter.

        Schaubroeck argues that the public interest in favor of disclosure in the context of peer
review in public education generally outweighs the public interest in favor of confidentiality to
encourage frank communication. Our Supreme Court warned against “speak[ing] in platitudes
and generalities” when weighing these competing interests. Id. at 474. Here, Schaubroeck’s
generalized arguments fail to address the manifestation of the competing interests in this case.
Further, his discussion about the confidentiality of the identities of peer reviewers in the context
of MCL 15.243(1)(d) has no bearing on the balancing of interests required for MCL
15.243(1)(m). Likewise, Schaubroeck has not tied the United States Supreme Court’s comment
in Univ of Pennsylvania v Equal Employment Opportunity Comm, 493 US 182, 200-201; 110 S
Ct 557; 107 L Ed 2d 571 (1990), that the possibility of disclosure is less likely to have a chilling
effect on academics in the peer review context, to the particular circumstances of this case.
Therefore, Schaubroeck has not shown that the trial court abused its discretion in its balancing of
the competing public interests.

        In sum, the trial court did not err by concluding that the committee report was advisory in
nature and was preliminary to the deans’ final determination, nor did the trial court abuse its
discretion by determining that the public interest in confidentiality to encourage frank
communication clearly outweighed the public interest in disclosure.

                              III. ATTORNEY FEES AND COSTS

                                 A. STANDARD OF REVIEW

        Schaubroeck argues that the trial court erred by denying his motion for reconsideration
and his request for attorney fees and costs. We disagree. Although Schaubroeck consistently
requested attorney fees and costs, he did not present the argument that he was entitled to attorney
fees and costs by partially prevailing on his FOIA claim until he filed the motion for
reconsideration. An argument first raised in a motion for reconsideration is not properly
preserved. King v Oakland Co Prosecutor, 303 Mich App 222, 239; 842 NW2d 403 (2013).
Accordingly, Schaubroeck did not preserve this argument. This Court reviews a trial court’s
denial of a motion for reconsideration for an abuse of discretion. Id. at 225. This Court reviews
a trial court’s ruling on a request for attorney fees and costs for an abuse of discretion.
Messenger v Ingham Co Prosecutor, 232 Mich App 633, 647; 591 NW2d 393 (1998). “An
abuse of discretion occurs when the trial court’s decision is outside the range of reasonable and
principled outcomes.” Nash Estate v Grand Haven, 321 Mich App 587, 605; 909 NW2d 862
(2017) (quotation marks and citation omitted). This Court reviews an unpreserved issue “for
plain error affecting substantial rights.” King, 303 Mich App at 239.

                                                -6-
                                           B. ANALYSIS

         FOIA provides for an award of attorney fees and costs if the party who brought the FOIA
lawsuit prevails. MCL 15.240(6). If the FOIA requester “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). Whether a party prevails on a FOIA claim turns on “whether:
(1) the action was reasonably necessary to compel the disclosure; and (2) the action had the
substantive causative effect on the delivery of the information to the plaintiff.” Local Area
Watch v Grand Rapids, 262 Mich App 136, 149; 683 NW2d 745 (2004) (quotation marks and
citation omitted). This Court has held that a trial court does not abuse its discretion by declining
to award any attorney fees or costs when the plaintiff only partially prevailed and did not prevail
on the “central [FOIA] claim . . . .” Id. at 151. Moreover, “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.” Nash Estate, 321 Mich App at 606.

        On appeal, Schaubroeck argues that attorney fees and costs are warranted because he
obtained a redacted copy of the committee report. But because he only partially prevailed, the
matter of attorney fees was committed to the trial court’s discretion. See id. Moreover, as in
Local Area Watch, Schaubroeck did not prevail on his central FOIA claim, which was that the
committee report should be disclosed in full, with no part of it being exempted. Schaubroeck
also asserts that the trial court clearly erred by denying his request for attorney fees and costs on
the basis that the court, not Schaubroeck, set forth the legal authority causing a portion of the
committee report to be disclosed. Other than calling the court’s determination a “clear error”
warranting reversal, Schaubroeck neglected to provide any legal authority in support of his
argument, so the issue is abandoned. See Mettler Walloon, LLC v Melrose Twp, 281 Mich App
184, 220; 761 NW2d 293 (2008). Thus, in sum, we conclude that as set forth in Local Area
Watch and Nash Estate, the trial court had discretion to award no attorney fees or costs because
Schaubroeck did not prevail in full and because the portion of his claim he did prevail upon was
not his central FOIA claim. See Local Area Watch, 262 Mich App at 151; Nash Estate, 321
Mich App at 606. Accordingly, the trial court did not plainly err by refusing to award
Schaubroeck attorney fees and costs.2




2
  The cases cited by Schaubroeck as “guidance” on awarding attorney fees when a plaintiff
partially prevails on a FOIA claim have no precedential value. In Kestenbaum v Mich State
Univ, 414 Mich 510, 565; 327 NW2d 783 (1982), the Supreme Court was equally divided, so
Justice RYAN’S opinion has no precedential value. See Int’l Union, United Plant Guard Workers
of America v Dep’t of State Police, 422 Mich 432, 439 n 5; 373 NW2d (1985), mod 423 Mich
1205 (1985) (noting that an equally divided decision does not produce binding precedent).
Additionally, this Court rejected a plaintiff’s reliance on Booth Newspapers, Inc v Kalamazoo
Sch Dist, 181 Mich App 752, 759-760; 450 NW2d 286 (1989), and Dawkins v Dep’t of Civil
Service, 130 Mich App 669, 674; 344 NW2d 43 (1983), because neither decision was binding
precedent. See Nash Estate, 321 Mich App at 607 (citing MCR 7.215(J)(1)).


                                                 -7-
We affirm.

                   /s/ Brock A. Swartzle
                   /s/ Michael J. Kelly
                   /s/ Jonathan Tukel




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