Laracey v. Financial Institutions Bureau, Docket No. 93993

• Decision Date: 24 November 1987
• Docket Number: Docket No. 93993
• Citation: 163 Mich.App. 437,414 N.W.2d 909
• Parties: Mel LARACEY, Plaintiff-Appellant, v. FINANCIAL INSTITUTIONS BUREAU, Defendant-Appellee. 163 Mich.App. 437, 414 N.W.2d 909
• Court: Court of Appeal of Michigan — District of US

Page 909

414 N.W.2d 909

Mel LARACEY, Plaintiff-Appellant, v. FINANCIAL INSTITUTIONS BUREAU, Defendant-Appellee.

Docket No. 93993.

163 Mich.App. 437, 414 N.W.2d 909

Court of Appeals of Michigan.

Submitted June 16, 1987.

Decided Oct. 5, 1987.

Released for Publication Nov. 24, 1987.

[163 MICHAPP 437] Mel Laracey, Ann Arbor, in pro. per.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Meryl B. Rosenberg and Susan Peck Ianotti, Asst. Attys. Gen., for defendant-appellee.

Before DANHOF, C.J., and DOCTOROFF and GREEN, ^* JJ.

[163 MICHAPP 438] DOCTOROFF, Judge.

Plaintiff appeals as of right from an order directing defendant to disclose certain information to him pursuant to the Michigan Freedom of Information Act, M.C.L. Sec. 15.231 et seq.; M.S.A. Sec. 4.1801(1) et seq. (FOIA), but denying plaintiff's request for punitive damages and attorney fees. We affirm.

The plaintiff in this action is an attorney. In January, 1985, he sent a letter to defendant's senior examiner requesting an investigation of his complaint regarding the Huron River Area Credit Union. In the same letter, he requested copies of others' complaints that defendant had received over the previous five-year period involving the credit union's general manager.

In response to his letter, plaintiff received a copy of a letter that the senior examiner sent to the general manager of the credit union. In that letter, defendant had advised the credit union about plaintiff's complaint and had forwarded a copy of plaintiff's letter to it. Defendant also wrote that it did not maintain the records of past complaints that plaintiff had requested.

Plaintiff subsequently filed another request for information, including a request for copies of any correspondence that defendant had with the credit union or the credit union's attorney relative to plaintiff's complaint. Defendant disclosed the correspondence, with the exception of a certain letter from defendant's credit union division director to the credit union's attorney.

Plaintiff again wrote to defendant, stating that pursuant to the FOIA only statutorily exempt portions of the subject letter could be lawfully withheld from disclosure. Defendant thereafter disclosed the requested letter, but did not disclose the attachment to the letter, claiming that such disclosure would be an unwarranted invasion of privacy [163 MICHAPP 439] under the FOIA and that the records were exempt thereunder because they contained agency notes.

It was discernible that the attachments to the letter consisted of copies of complaints against the credit union for the years 1984 to 1985 that the credit union had requested. Thus, plaintiff learned that, although defendant refused to honor his request, it did have the subject records and had sent them to the credit union.

Proceeding pro se, plaintiff filed suit in July, 1985, to compel disclosure of the information. The trial court ordered disclosure of the records after deletion of certain information contained therein, and denied plaintiff's requests for both punitive damages and attorney fees under the FOIA.

I

The first issue plaintiff raises is that the trial court erred by denying his request for punitive damages. He contests its finding that defendant had responded to plaintiff's requests in a reasonable manner and without evidence of bad faith, asserting that defendant actually acted arbitrarily and capriciously in disregard to its obligations to the public. In support of his position, he cites the fact that defendant responded to his request by contacting the credit union indicating that it did not maintain the records he requested.

Subsection 10(5) of the Michigan Freedom of Information Act, M.C.L. Sec. 15.240(5); M.S.A. Sec. 4.1801(10)(5), provides as follows:

"In an action commenced pursuant to this section, if the circuit court finds that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record, the court shall, in addition to any actual or compensatory damages, award [163 MICHAPP 440] punitive damages in the amount of $500.00 to the person seeking the right to inspect or receive a copy of a public record. The damages shall not be assessed against an individual, but shall be assessed against the next succeeding public body, not an individual, pursuant to whose public function the public record was kept or maintained."

Although the terms "arbitrarily" and "capriciously" are not defined in the statute, they have generally accepted meanings. As noted in Bundo v. City of Walled Lake, 395 Mich. 679, 703, n. 17, 238 N.W.2d 154 (1976), citing United States v. Carmack, 329 U.S. 230, 243, 67 S.Ct. 252, 258, 91 L.Ed. 209 (1946), the United States Supreme Court has defined these terms as follows:

"Arbitrary is: ' "[W]ithout adequate determining principle.... Fixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance, ... decisive but unreasoned." '

"Capricious is: ' "[A]pt to change suddenly; freakish; whimsical; humorsome." ' "

In this case, defendant denied plaintiff's initial request for disclosure of information, claiming that it did not have the information sought. This claim turned out to be false. By way of affidavit in this case, which was submitted on briefs to the trial court, defendant's senior examiner indicated that he was unaware that the records were available and also unaware that plaintiff had made the request for disclosure pursuant to the FOIA. The trial court found that defendant neither acted in bad faith nor acted arbitrarily and capriciously, but rather acted in a reasonably responsible manner. The judge also attributed the initial delay in [163 MICHAPP 441] response to administrative oversight rather than to bad faith.

While defendant's actions in refusing to disclose the requested material were subsequently determined to be erroneous, we agree with the trial court that defendant did not act arbitrarily or capriciously. It is evident that defendant's decision was not arrived at without consideration of principles or circumstances, but rather was reasonable and not "whimsical." See Williams v. Martimucci, 88 Mich.App. 198, 276 N.W.2d 876 (1979).

II

Plaintiff next argues that the trial court erred by denying him attorney fees under the FOIA. The trial court had determined that it was irrelevant that plaintiff himself is an attorney, and that plaintiff's lost opportunity cost has no greater significance than the lost opportunity costs of laymen who proceed pro se.

The attorney fee provision of the Michigan FOIA, M.C.L. Sec. 15.240(4); M.S.A. Sec. 4.1801(10)(4), provides:

"If a person asserting the right to inspect or to receive a copy of a public record or a portion thereof prevails in an action commenced pursuant to this section, the court shall award reasonable attorneys' fees, costs, and disbursements. If the person prevails in part, the court may in its discretion award reasonable attorneys' fees, costs, and disbursements or an appropriate portion thereof. The award shall be assessed against the public body liable for damages under subsection (5)."

The purpose for inclusion of the attorney fee provision in the Michigan act is to facilitate the stated purpose of the act to make available to all persons "full and complete information regarding [163 MICHAPP 442] the affairs of government," M.C.L. Sec. 15.231(2); M.S.A. Sec. 4.1801(1)(2). Schinzel v. Wilkerson, 110 Mich.App. 600, 603-604, 313 N.W.2d 167 (1981), lv. den. 417 Mich. 863 (1983). We have previously determined that a lay person who proceeds pro se is not entitled to a mandatory award of attorney fees since such a plaintiff is not represented by an attorney, Nabkey v. Kent Community Action Program, Inc, 99 Mich.App. 480, 483, 298 N.W.2d 11 (1980); that the attorney fee provision of the FOIA was not enacted to provide a windfall for any litigant who elects to use the act to recover for legal services not performed by an attorney. Schinzel, supra, 110 Mich.App. p. 604, 313 N.W.2d 167.

We have not, however, specifically addressed the question whether an attorney acting pro se is entitled to attorney fees under the FOIA. Plaintiff therefore relies on federal authority to support his position, specifically urging us to adopt the reasoning of the federal courts that have awarded attorney fees to attorney litigants proceeding pro se under the federal FOIA, 5 U.S.C. Sec. 552.

The Legislature in the enactment of the Michigan FOIA followed closely, but abbreviated, the federal freedom of information act, 5 U.S.C. Sec. 552; the intent of both acts is to establish a philosophy of full disclosure by public agencies and to deter efforts of agency officials to prevent disclosure of mistakes and irregularities committed by them or the agency to prevent needless denials of information. Schinzel, supra, pp. 603-604, 313 N.W.2d 167.

Although the similarity between the Michigan Freedom of Information Act and the federal act invites analogy when deciphering the various sections and attendant judicial interpretations, Kestenbaum v. Michigan State University, 414 Mich. 510, 525, 327 N.W.2d 783 (1982), reh. den. 417 Mich. 1103 (1983), the attorney fee provisions of the acts [163 MICHAPP 443] differ as to the requirements for awards of fees. ¹ Under the federal provision, attorney fee awards are discretionary instead of mandatory. Further, the federal provision requires that a plaintiff substantially prevail in the action while the Michigan provision only requires that a plaintiff prevail in part. It is therefore questionable whether the analogous federal attorney fee provision provides assistance in interpreting the Michigan provision. ²

Pursuant to the federal FOIA, pro se plaintiffs are generally not entitled to attorney fees. ³ Of the circuits that have addressed the issue whether attorney litigants...