Estate of Nash v. City of Grand Haven, 336907

• Decision Date: 10 October 2017
• Docket Number: No. 336907,336907
• Parties: ESTATE OF Chance Aaron NASH, BY Diane NASH, Personal Representative, Plaintiff-Appellant, v. CITY OF GRAND HAVEN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

321 Mich.App. 587

909 N.W.2d 862

ESTATE OF Chance Aaron NASH, BY Diane NASH, Personal Representative, Plaintiff-Appellant,

v.CITY OF GRAND HAVEN, Defendant-Appellee.

No. 336907

Court of Appeals of Michigan.

Submitted October 3, 2017, at Grand Rapids.

Decided October 10, 2017, 9:10 a.m.

John D. Tallman, PLC (by John D. Tallman ) for the Nash Estate.

McGraw Morris, PC (by Craig R. Noland and Amanda M. Zdarsky ) for the city of Grand Haven.

Before: Murray, P.J., and Sawyer and Markey, JJ.

Markey, J.

Diane Nash, as personal representative of the Estate of Chance Aaron Nash, sought certain documents and information under the Michigan Freedom of Information Act (FOIA), MCL 15.231 et seq ., from defendant, the city of Grand Haven. Following an in camera review of documents that the city claimed were subject to the attorney-client privilege and a bench trial related to 12 documents the trial court identified during its in camera review as requiring further explanation, the trial court ordered the city to produce some documents to plaintiff and ruled that others were exempt from disclosure because they were subject to the attorney-client privilege. The trial court concluded that plaintiff prevailed in part on the FOIA claim but was not entitled to attorney fees. Plaintiff now appeals by right. We affirm.

The instant case is one of a series of lawsuits related to the death of Chance Aaron Nash, who was involved in a fatal sledding accident on December 31, 2009, at Duncan Park in the city of Grand Haven. In the underlying tort litigation, plaintiff has sued the Duncan Park Commission, the Duncan Park Trustees, the individual trustees, and Duncan Park groundskeeper Robert DeHare.

Plaintiff’s original FOIA request sought documents and information from the city related to the accident, the underlying tort litigation, Duncan Park, and the employment of DeHare. The city denied plaintiff’s request in part, stating that it did not have information or documents related to DeHare’s employment because he was not an employee of the city and that some information and records were exempt from disclosure pursuant to MCL 15.243(1)(g) because they were subject to the attorney-client privilege. Plaintiff filed the instant FOIA lawsuit while the underlying tort litigation was still pending. Plaintiff’s complaint alleged that the city "denied, in part, Plaintiff’s request, claiming the documents in its possession were exempt from disclosure as being subject to the attorney-client privilege" and that "[t]he requested public records are not exempt from disclosure and [the city] has arbitrarily and capriciously violated the FOIA." Plaintiff did not base the claim of a FOIA violation on any other ground.

On appeal, plaintiff first argues that the trial court erred by applying federal precedent regarding the common-interest doctrine of the attorney-client privilege. We disagree.

An appellate court "reviews de novo whether the trial court properly interpreted and applied FOIA." ESPN, Inc. v. Mich. State Univ. , 311 Mich.App. 662, 664, 876 N.W.2d 593 (2015). "Whether a public record is exempt from disclosure under the FOIA is a mixed question of fact and law, and we review the trial court’s factual findings for clear error and review questions of law de novo." Local Area Watch v. Grand Rapids , 262 Mich.App. 136, 142, 683 N.W.2d 745, 749 (2004) (quotation marks and citation omitted). Under the clear-error standard of review, "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." King v. Oakland Co. Prosecutor , 303 Mich.App. 222, 225, 842 N.W.2d 403 (2013) (quotation marks and citation omitted). "Whether the attorney-client privilege applies to a communication is a question of law that we review de novo." Krug v. Ingham Co. Sheriff'’s Office , 264 Mich.App. 475, 484, 691 N.W.2d 50 (2004).

"Michigan courts have interpreted the policy of the FOIA as one of full disclosure of public records unless a legislatively created exemption expressly allows a state agency to avoid its duty to disclose the information." Messenger v. Dep’t of Consumer & Indus. Servs. , 238 Mich.App. 524, 531, 606 N.W.2d 38 (1999). "Consistent with the FOIA’s underlying policies, a public body is required to grant full disclosure of its records, unless they are specifically exempt under MCL 15.243." Detroit Free Press, Inc. v. Southfield , 269 Mich.App. 275, 281, 713 N.W.2d 28 (2005). "In construing the provisions of the act, [courts must] keep in mind that the FOIA is intended primarily as a prodisclosure statute and the exemptions to disclosure are to be narrowly construed." Swickard v. Wayne Co. Med. Examiner , 438 Mich. 536, 544, 475 N.W.2d 304 (1991). "Also, when a public body refuses to disclose a requested document under the act, and the requester sues to compel disclosure, the public agency bears the burden of proving that the refusal was justified under the act." Id . See also MCL 15.240(4). "When ruling whether an exemption under the FOIA prevents disclosure of particular documents, a trial court must make particularized findings of fact indicating why the claimed exemption is appropriate." Messenger , 238 Mich.App. at 532, 606 N.W.2d 38.

Section 13, MCL 15.243(1)(g), states as follows:

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

* * *

(g) Information or records subject to the attorney-client privilege.

"The attorney-client privilege attaches to communications made by a client to an attorney acting as a legal adviser and made for the purpose of obtaining legal advice." Herald Co., Inc. v. Ann Arbor Pub. Sch. , 224 Mich.App. 266, 279, 568 N.W.2d 411 (1997). "The attorney-client privilege is designed to permit a client to confide in his attorney, knowing that his communications are safe from disclosure." McCartney v. Attorney General , 231 Mich.App. 722, 730, 587 N.W.2d 824 (1998). "The scope of the privilege is narrow: it attaches only to confidential communications by the client to its advisor that are made for the purpose of obtaining legal advice." Herald Co. , 224 Mich.App. at 279, 568 N.W.2d 411. "When the client is an organization, the privilege attaches to communications between the attorney and any employee or agent authorized to speak on its behalf in relation to the subject matter of the communication." Krug , 264 Mich.App. at 485, 691 N.W.2d 50 (quotation marks and citation omitted). Typically, "[o]nce otherwise privileged information is disclosed to a third party by the person who holds the privilege, or if an otherwise confidential communication is necessarily intended to be disclosed to a third party, the privilege disappears." Leibel v. Gen. Motors Corp. , 250 Mich.App. 229, 242, 646 N.W.2d 179 (2002) (quotation marks and citation omitted; alteration in original).

"The attorney–client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed. 2d 584 (1981). This Court looks to federal precedent for guidance in determining the scope of the attorney-client privilege when a particular issue has been addressed by a federal court. See, e.g., Leibel , 250 Mich.App. at 236–237, 646 N.W.2d 179 ; Reed Dairy Farm v. Consumers Power Co. , 227 Mich.App. 614, 619–620, 576 N.W.2d 709 (1998).

Both the trial court, in its December 22, 2016 order, and the city on appeal relied on United States v. BDO Seidman, LLP , 492 F.3d 806, 814–817 (CA 7, 2007), in which the United States Court of Appeals for the Seventh Circuit outlined the application of the common-interest doctrine to the attorney-client privilege as follows:

Although it ultimately was not adopted by Congress, the rule of attorney-client privilege promulgated by the Supreme Court in 1972 as part of the Proposed Federal Rules of Evidence has been recognized "as a source of general guidance regarding federal common law principles." Proposed Rule 503 provided:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer’s representative, or (2) between his lawyer and the lawyer’s representative, or (3) by him or his lawyer to a lawyer representing another in a matter of common interest , or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client.

Put simply, in order for the attorney-client privilege to attach, the communication in question must be made: (1) in confidence; (2) in connection with the provision of legal services; (3) to an attorney; and (4) in the context of an attorney-client relationship.

The purpose of the privilege is to "encourage full disclosure and to facilitate open communication between attorneys and their clients." Open communication assists lawyers in rendering legal advice, not only to represent their clients in ongoing litigation, but also to prevent litigation by advising clients to conform their conduct to the law and by addressing legal concerns that may inhibit clients from engaging in otherwise lawful and socially beneficial activities. The cost of these benefits is the withholding of relevant information from the courts.

Recognizing the inherent tension between the beneficial goals of the attorney-client privilege and the courts’ right to every person’s evidence, the courts have articulated the following principles to inform our analysis of the scope of the common interest doctrine:

(1) "[C]ourts construe the privilege to apply only where necessary to achieve its purpose."

(2) Only those communications which "reflect the lawyer’s thinking [or] are made for the purpose of eliciting the

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