Docket No. 129623.
Decided July 23, 1992. Approved for publication November 4, 1992, at 9:00 A.M.
Wilson, Lawler Lett (by Steven T. Lett), for the plaintiff.
Warner, Hart Peters, P.C. (by Robert H. Warner), for the defendant.
Before: WAHLS, P.J., and MARILYN KELLY and REILLY, JJ.
Plaintiff filed a complaint on January 25, 1990, under § 10(1) of the Freedom of Information Act (FOIA), MCL 15.240(1); MSA 4.1801(10)(1), seeking documents related to the resignation or termination of the defendant's city manager. Defendant agreed to provide the requested materials, and the case was dismissed by stipulation of the parties. Plaintiff appeals from that part of the order of dismissal that denied him attorney fees and punitive damages, claiming that he was entitled to the fees and damages because he was the prevailing party and the defendant acted arbitrarily and capriciously in delaying release of the documents. MCL 15.240(4) and (5); MSA 4.1801(10)(4) and (5). We disagree and affirm.
(4) 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).
(5) 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 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.
A party has "prevailed" under the FOIA if the prosecution of the action was necessary to and had a substantial causative effect on the delivery of or access to the documents. Walloon Lake Water System, Inc v Melrose Twp, 163 Mich. App. 726; 415 N.W.2d 292 (1987); Schinzel v Wilkerson, 110 Mich. App. 600; 313 N.W.2d 167 (1981). Because plaintiff's lawsuit was unnecessary to obtain the relief sought, he is not the "prevailing" party. Plaintiff acknowledges that when he filed his lawsuit he was aware of defendant's declaratory judgment action against him, filed the previous day, in which defendant sought a court order requiring production of the documents. Defendant had informed plaintiff that it had contracted with the city manager not to reveal the terms of the resignation or termination agreement, but was willing to release the requested materials if ordered by the court. Defendant had also advised plaintiff that it need only file a stipulation for entry of a consent judgment in the declaratory judgment action and, upon the issuance of the court order, the documents would be produced.
We are convinced that under these facts there was no need for plaintiff's lawsuit, and he cannot be deemed to be the prevailing party.
Plaintiff is also not entitled to punitive damages. It is undisputed that defendant's delay in producing the documents was attributable to an attempt to reconcile its contractual obligation to the city manager to maintain the secrecy of the resignation or termination agreement and its statutory obligation to the plaintiff under the FOIA. The trial court determined that defendant's attempt to extricate itself from the dilemma of choosing between two equally demanding alternatives was not arbitrary and capricious. Tallman v Cheboygan Area Schools, 183 Mich. App. 123; 454 N.W.2d 171 (1990); Laracey v Financial Institutions Bureau, 163 Mich. App. 437, 445; 414 N.W.2d 909 (1987). We agree.