                           STATE OF MICHIGAN

                           COURT OF APPEALS



CRAIG A. ROLFE, P.L.L.C,                                          UNPUBLISHED
                                                                  December 29, 2015
              Plaintiff,

and

GLENN MILLER,

              Plaintiff-Appellant,

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.


                                              -1-
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


                                                -2-
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].




3
    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.]



                                                  -3-
       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



4
  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.
5
  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


                                                  -4-
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.


                                                -5-
Affirmed.



                  /s/ Donald S. Owens
                  /s/ William B. Murphy
                  /s/ Joel P. Hoekstra




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