Ripeness of a claim to compel production of a government record; Distinguishing Arabo v Michigan Gaming Control Bd; Final determination; MCL 15.240(1); Principle that the FOIA does not require a public body to create a record that does not otherwise exist (MCL 15.233(5)); Opposing summary disposition on the basis discovery has not yet been completed; MCR 2.116(H); Document verification; MCR 1.109(D)(3)(b); Applicability of the frank communications FOIA exemption (MCL 15.243(1)(m)); Bukowski v Detroit; Oakland County Prosecutor’s Office (OCPO)

The court held that plaintiff’s action challenging defendant’s claimed FOIA exemptions and seeking unredacted video footage was ripe. But as to his claim related to a list, it found that the trial court did not err in concluding “there were no genuine issues of material fact as to whether or not a list existed.” It also upheld the trial court’s ruling that “the frank communications exemption applied to allow defendant to redact material from” certain e-mails. Plaintiff sought, among other things, copies of a video presentation, a list of presenters for a presentation, and all e-mails between members of the OCPO (including defendant) and a judge since 10/22. The court agreed with him “that the trial court erred in determining that his claim to compel production of the video of the diversity, equity, and inclusion presentations was not ripe.” The trial court found Arabo controlling as to this claim “because plaintiff did not tender a deposit. Arabo dictates that a public body is not required to make a final determination until the requester pays the required deposit; however, nothing in Arabo precludes a public body from making a final determination earlier. Unlike the public body in Arabo, defendant did not condition a final determination on payment of the deposit.” The court concluded she “effectively denied plaintiff’s request as it related to the unredacted footage” and this denial was her “final determination on [his] request for the unredacted footage, regardless of whether [he] had paid any processing-fee deposit.” Thus, the court held that the “trial court misapplied the FOIA when it determined defendant had not made a final determination and erred when it dismissed plaintiff’s claim with respect to the presentation footage as unripe. Because defendant made a final determination” as to the presentation footage, plaintiff “sustained the actual injury of having his request denied.” The court reversed the trial court as to its ripeness ruling and remanded “for it to address the merits of plaintiff’s exemption challenges.” But it rejected his other arguments on appeal, concluding among other things that, as to the e-mails, “the trial court correctly found that the need to foster open and honest communication between the circuit court and the OCPO outweighed the right of the public to be aware of the discussions that led to the creation of” a pilot program. Affirmed in part, reversed in part, and remanded.