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Michigan Supreme Court: DOC Owes Attorney Fees in Public Records Case Even if Plaintiff Is Represented Pro Bono

by Matt Clarke

On July 26, 2023, the Michigan Supreme Court held that journalists seeking release of videos from the state Department of Corrections (DOC) were prevailing parties and thus entitled to recover attorney fees—even if their attorneys were working pro bono.

Proceeding under the state Freedom of Information Act (FOIA), MCL 15.231, et seq., freelance journalists Spencer Woodman and George Joseph separately sought video of a fatal fight between two DOC prisoners in which guards intervened with Tasers, leaving one of the prisoners dead. Prosecutors had cited the video evidence in their decision not to file criminal charges in the death of the prisoner, Dustin Szot, 24.

DOC issued a blanket denial of the FOIA requests, citing an exemption when disclosure might harm prison security. Woodman and Joseph filed FOIA actions, later consolidated, seeking to compel disclosure. Both plaintiffs were represented by attorneys with the American Civil Liberties Union (ACLU) and Honigman, LLP in Detroit, acting pro bono.

The trial court ordered DOC to disclose the audio recordings and submit the video recordings for in camera review, blurring faces if it so desired. DOC submitted unredacted videos for the court’s review. After an appointed special master determined that the videos did not reveal security camera placement at Bellamy Creek Correctional Facility in Ionia, the court ordered disclosure of the unredacted videos.

DOC moved for reconsideration or permission to obscure the faces. The court denied the motion but nonetheless allowed faces to be blurred in copies of the videos given to Plaintiffs. It also permitted Plaintiffs’ attorneys to view the unredacted versions.

Plaintiffs then moved for attorney fees and punitive damages under MCL 15.240(6) and (7). The court denied punitive damages but held that plaintiffs had prevailed in full and were thus entitled to reasonable attorney fees. It awarded the ACLU attorneys 100% of their requested fees; but the court awarded only 10% of fees requested by Honigman because they had represented Plaintiffs pro bono. Both parties appealed.

The Court of Appeals upheld denial of punitive damages. It also held that, due to the redactions in the videos, plaintiffs had prevailed only in part, thus awarding attorney fees was discretionary, not mandatory. The appellate court did not address the issue of pro bono counsel’s right to fees, remanding the case for the trial court to determine whether to award them.

Plaintiffs then appealed to the Michigan Supreme Court. There the majority held that Plaintiffs were the prevailing party in full because the action was necessary to compel disclosure. Quoting Int’l Union, United Plant Guard Workers of America v. Dep’t of State Police, 422 Mich. 32 (1985), the Court said that Plaintiffs obtained “everything [they] initially sought,” since their request did not specify unredacted video.

In an issue of first impression, the Court also held that pro bono status should not be a consideration in determining FOIA attorney fees. This aligns with the purpose of FOIA statutes’ fee-shifting provisions: to encourage voluntary compliance with FOIA and, when that does not happen, to encourage parties to act as “private attorneys general” the Court said, quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968).

The Court also noted that other jurisdictions—Illinois and Missouri state courts, as well as federal courts in D.C. and Virginia—have held that prevailing pro bono attorneys were entitled to fees in FOIA cases, and Defendants failed to provide a single citation to the contrary.

Thus the Court of Appeals’ order was affirmed, vacating the trial court’s attorney fee award and remanding the issue of reducing the award based upon an attorney’s pro bono status. In a partial dissent, Justice David F. Viviano joined Justice Brian K. Zahra to argue that Plaintiffs fought redaction of the videos, so they could not be considered the fully prevailing party and were thus not entitled to any fee award. See: Woodman v. Dep’t of Corr., 511 Mich. 427 (2023).  


Additional source: Ionia Standard-Journal

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Related legal case

Woodman v. Dep’t of Corr.