Denial of a FOIA request on the basis the requested record does not exist; MCL 15.235(5)(b); The Single State Construction Code Act (SSCCA); MCL 125.1510(1); Supporting a summary disposition motion under MCR 2.116(C)(10); MCR 2.116(G)(4); The Construction Code Commission (CCC)

The court held that the trial court in this FOIA action did not err in granting defendant-LARA summary disposition on the basis the requested record did not exist. Plaintiff’s request related to applications “‘submitted by a government subdivision where the [CCC] prescribe[d] the government subdivision’s form for making an application for a’” building, mechanical, electrical, or plumbing permit. LARA denied the request under MCL 15.235(5)(b). In seeking summary disposition, it submitted an affidavit from the Deputy Director (L) for the Bureau of Construction Codes. Plaintiff countered with his own affidavit. The court held that L’s “affidavit satisfied defendant’s obligation to support its summary-disposition motion in accordance with MCR 2.116(G)(4), and the evidence attached to and referenced in plaintiff’s response, even when viewed in the light most favorable to” him, did not show a genuine issue of material fact as to “the existence of responsive records.” It noted that L “attested that defendant did not prescribe permit forms through approval of any governmental subdivision’s application to administer and enforce the SSCCA. And plaintiff’s affidavit was insufficient to rebut defendant’s evidence.” He attached e-mailed responses from the City of Galesburg’s contractor (GL) to his “requests. In that e-mail, [GL] did not state that the [CCC] specifically approved a permit form attached to the City [of] Galesburg’s application to administer and enforce, as plaintiff implies. Instead, plaintiff posed to [GL], ‘MCL 125.1510(1) requires that the form on which an application for a permit be prescribed by the [CCC]; please email me a copy of the City of Galesburg’s application for mechanical permit that was prescribed by the [CCC],’ to which [GL] responded, ‘See the attached copy as submitted and approved by the CCC.’ A copy of the mechanical permit application was then attached. While this” was evidence that “Galesburg submitted a mechanical permit form with its application to administer and enforce the SSCCA, and that application to administer and enforce was approved by the [CCC], it does not create a genuine issue of fact regarding the [CCC’s] alleged prescription of that permit application form.” The court concluded “defendant complied with the clear requirements of MCL 15.235(5)(b) by certifying that the record(s) requested by plaintiff did not exist, and adequately supported its” summary disposition motion, but plaintiff did not show a genuine issue of material fact as to its denial of his FOIA request. Affirmed.