KEVIN JACKSON VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (GOVERNMENT RECORDS COUNCIL)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1579-18T2
KEVIN JACKSON,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________
Submitted May 27, 2020 – Decided June 16, 2020
Before Judges Currier and Firko.
On appeal from the New Jersey Government Records
Council.
Kevin Jackson, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Department of Corrections
(Raymond R. Chance, III, Assistant Attorney General,
of counsel; Tasha M. Bradt, Deputy Attorney General,
on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Government Records Council (Debra A.
Allen, Deputy Attorney General, on the statement in
lieu of brief).
PER CURIAM
Appellant Kevin Jackson, an inmate at South Woods State Prison, appeals
from an October 23, 2018 Government Records Council (GRC) decision
denying his request to the New Jersey Department of Corrections (DOC) under
the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. We affirm.
In 1985, appellant was charged with murder. He was convicted and
sentenced to death on February 6, 1987. At that time, he was incarcerated at
what was formerly known as Trenton State Prison. 1 In April 1990, appellant's
death sentence was reversed. He was retried and resentenced to life
imprisonment.
In his OPRA request, appellant sought his DOC classification file, also
referred to as progress notes, from his time on death row from 1987 through
1990. On October 25, 2016, the records custodian from the DOC responded and
explained that its record retention schedule for inmate records is ten years after
service of the sentence is completed. The requested records from 1987 through
1990 were destroyed and no longer on file.
1
It is now known as New Jersey State Prison.
A-1579-18T2
2
On October 31, 2016, appellant renewed his request and advised the
records custodian that he was not released from the custody and care of the DOC
between 1987 and 1990 and was instead resentenced in 1992. On November 23,
2016, the records custodian advised appellant that staff members at South
Woods State Prison searched his inmate classification folder, but did not find
the requested records.
On November 29, 2016, appellant filed a Denial of Access Complaint.
The custodian filed a Statement of Information with the GRC on January 6,
2017. The custodian certified that "no specific records responsive to
[appellant's] request were located."
On October 23, 2018, the GRC issued its final administrative
determination. The agency concluded that appellant's request was properly
denied by the custodian because "no responsive records" existed.
On appeal, appellant argues: (1) respondents are the custodian of the
records despite the number of years that have transpired; (2) appellant has been
in the custody of the DOC since February 6, 1987, and his records had to be
registered and stored by the State of New Jersey, not the DOC; and (3) his OPRA
complaint was properly filed and is subject to review by this court.
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"[U]nder our deferential standard of review, we give weight to the GRC's
interpretation of OPRA." McGee v. Twp. of E. Amwell, 416 N.J. Super. 602,
616 (App. Div. 2010). This deference is appropriate in light of the specialized
and technical expertise of the agency charged with administration of the
regulatory system. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478,
489 (2004). As such, the determinations and findings of the administrative
agency will not be set aside absent "a clear showing that (1) the agency did not
follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or
(3) the decision was not supported by substantial evidence." In re Virtua-West
Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008)
(citing In re Herrmann, 192 N.J. 19, 28 (2007)).
The GRC, an administrative agency, is statutorily authorized to adjudicate
disputes pertaining to the access of government records. N.J.S.A. 47:1A-7(b).
However, this court is "in no way bound by the agency's interpretation of a
statute or its determination of a strictly legal issue." Utley v. Bd. of Review,
Dep't of Labor, 194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co. v. Bureau
of Sec., 64 N.J. 85, 93 (1973)).
As a matter of law, the GRC correctly determined that the DOC does not
have an obligation under OPRA to provide a requestor with a copy of a record
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that does not exist, or an obligation to create a new record from information in
its possession. See N.J.S.A. 47:1A-6. See also Sussex Commons Assocs., LLC
v. Rutgers, 210 N.J. 531, 544 (2012); MAG Entm't, LLC v. Div. of Alcoholic
Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005). Given the DOC's
representation that no responsive records exist and appellant's progress notes
from 1987 through 1990 were likely destroyed ten years after his original
sentence was deemed administratively completed in accordance with its record
retention schedule, its decision was not arbitrary or capricious.
Affirmed.
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