FOR IMMEDIATE RELEASE
DETROIT – The American Civil Liberties Union of Michigan (ACLU) applauds today’s Michigan Supreme Court ruling that pro bono attorneys in Freedom of Information Act (FOIA) cases must be paid in full for their work by the government agency that unlawfully withheld public records.
The ruling, in Woodman v. Michigan Department of Corrections, arises from FOIA lawsuits filed in 2017 by the ACLU of Michigan and its cooperating attorneys from Honigman LLP on behalf of two freelance journalists after the Michigan Department of Corrections (MDOC) denied their requests to turn over video footage of an altercation at a prison that resulted in the death of an incarcerated person.
During the course of the lawsuit, the ACLU learned that the MDOC’s policy was to automatically deny all FOIA requests for videos without viewing the video in question to determine whether or how it would be exempt from disclosure under Michigan’s FOIA statute. In 2019, the Michigan Court of Claims ruled that MDOC’s policy was illegal and that the journalists had a right to see the videos they had requested, ordering the state to turn over the video footage.
Michigan’s FOIA statute entitles a prevailing party to recover attorneys’ fees from a government agency that unlawfully refused to turn over public records. However, the Court of Claims slashed the ACLU cooperating attorneys’ fees by 90% because the work was being done pro bono, meaning “for the public good” and at no charge to the clients. In fact, all ACLU cases are pro bono, as are nearly all legal services provided by other nonprofit public interest organizations that specialize in civil rights, civil liberties, and FOIA litigation.
In their appeal, the ACLU and its cooperating attorneys explained that federal and state courts throughout the country had long rejected the argument that attorneys’ fees could not be recovered by pro bono attorneys, and that Michigan would be an outlier if it allowed such a ruling to stand. Multiple organizations, including the State Bar of Michigan and the Association of Pro Bono Counsel, filed friend-of-the-court briefs in the Michigan Supreme Court, warning that such a ruling would undermine pro bono practice throughout the state and hamper the ability of public interest organizations to hold government agencies accountable and transparent. Those arguments prevailed and resulted in today’s favorable ruling.
Dan Korobkin, ACLU of Michigan legal director, released this statement:
“For the ACLU of Michigan and other nonprofit organizations like it, as well as private sector law firms that provide pro bono legal counsel to support important public interest work, it is vital that attorneys’ fees be recoverable in cases involving civil rights, civil liberties, and government transparency. Doing so helps us continue representing people whose rights are being violated. If attorneys who provide services pro bono cannot recover fees in successful FOIA and civil rights cases, fewer such cases will be brought, and the public as a whole will suffer. This is a major victory for organizations and individuals in Michigan who provide pro bono legal services.”
For more information about the case and to read a blog the ACLU published when it was argued, see https://www.aclumich.org/en/news/keeping-government-accountable
To read today’s opinion, see: https://www.courts.michigan.gov/siteassets/case-documents/uploads/opinions/final/sct/163382_65_01.pdf