NASH V. GRAND HAVEN

Posted October 23, 2017, 12:37 PM.

In a published opinion, the Michigan Court of Appeals upheld the Ottawa County Circuit Court’s determination that the prevailing party in a Freedom of Information Act (“FOIA”) lawsuit was not entitled to an award of attorney fees from the City of Grand Haven.  The Court of Appeals also clarified and defined Michigan law, holding that the common interest doctrine was applicable to support the exemption of certain documents from disclosure under FOIA based on the attorney-client privilege.  The Court’s holding is critical in the State of Michigan because it clarifies that a party who prevails in a FOIA lawsuit is not necessarily entitled to statutory attorney fees.  The City was defended in this complex and protracted FOIA lawsuit by McGraw Morris P.C. attorney Craig Noland.

The plaintiff requested certain documents from the City of Grand Haven under FOIA.  Pursuant to FOIA’s exemption for attorney-client privileged documents, the City withheld particular documents in response to the plaintiff’s FOIA request.  The trial court conducted an in camera review of the documents the City withheld and ordered the City to produce some of the documents to the plaintiff and that some of the documents were exempt pursuant to the attorney-client privilege.  Although the plaintiff asserted that the documents were not subject to the attorney-client privilege because they were shared with individuals outside the City, the trial court determined that the common interest doctrine applied to maintain the attorney-client privilege, as any individuals who saw the documents held a common defense interest with the City such that the privilege applied. 

Although the plaintiff prevailed in part, the court determined that she was not entitled to an award of attorney fees because her success in the lawsuit was relatively minor in comparison to the volume of documents at issue.  The Court of Appeals upheld the trial court’s determination in its entirety.