MIRA doesn’t have to pay civil penalties for recent FOIA violations

The Freedom of Information Commission (FOIC) recently issued two rulings finding the Materials Innovation and Recycling Authority (MIRA) violated the Freedom of Information Act (FOIA) but declined to issue civil penalties.

The FOIC’s two latest findings, which found the agency overcharged for records and improperly held executive sessions, against MIRA are not the first times the organization has been cited by the FOIC for violating the state’s transparency law. Though commissioners agreed that the two cases before it were not the right ones to issue civil penalties, they “put MIRA on notice” for future cases that might come before them.

Both cases were brought by Matthew Hennessy. In the oldest case , which dates to October 29, 2020, Hennessy submitted a records request for email communications sent by MIRA members that referenced items discussed during executive sessions.

On November 1, 2020, Laurie Hunt, MIRA’s director of legal services at the time and also one of the individuals whose email communications Hennessy sought, responded to the request, noting that responsive records had been found, and that the organization charged 50 cents per page for copies of records.

Under FOIA, agencies are allowed to charge a fee for copies of up to 25 cents per page.

On December 5, 2020, Hunt notified Hennessy that there were three pages of records responsive to his request, which she provided without charge. She also noted that there were an additional 51 pages of material that referenced things that might be discussed in a future executive session. She further stated that the cost to provide these would be $25.50, or 50 cents per page. Hennessy did not request the additional records be turned over.

Hennessy filed a complaint on November 25, 2020, over the fee. He also requested the FOIC assess a civil penalty against Tom Kirk, then MIRA’s president, and against Hunt. At the first hearing in the case, Hennessy said he was under the impression there were 500 pages of responsive records.

Also at the first hearing, Hunt acknowledged the copy fees were improper and stated it was a mistake. According to hearing officer Valicia Dee Harmon’s report, she acknowledged she again made a mistake when she told Hennessy it would cost 50 cents a page to provide the additional pages.

Harmon found that Hunt, who has since retired, did violate FOIA by stating they would charge 50 cents per page to copy records. However, because Hunt admitted to this, she recommended the commission not impose civil penalties.

At a March 27 FOIC meeting, Hennessy and his legal counsel appeared and asked for the commission to impose civil penalties, especially given the number of times MIRA had previously been before them for violating FOIA.

Michael Harrington, Hennessy’s lawyer, also argued that there was no evidence Hunt’s actions were inadvertent and stated they believe evidence showed it was intentional. They also emphasized the three and a half years that had gone by between Hennessy’s complaint and the FOIC’s findings.

Alan Curto, MIRA’s lawyer, argue that while there might not be evidence Hunt’s mistake was inadvertent, there was also no evidence it was intentional. He also argued that the pages quoted at 50 cents were provided free of charge and that while Hunt offered additional pages, Hennessy never requested them.

Speaking at the meeting, Harmon noted that part of the delay was the result of the COVID-19 pandemic and Hennessy requesting an in-person hearing. She also noted that because Hunt had conceded she was wrong, and because Hunt had turned over records without charge and has since retired, issuing a civil penalty wasn’t necessary.

The commission ultimately voted to accept Harmon’s report, which made no recommendations for further actions.

Hennessy’s second complaint , filed on May 31, 2021, was brought against MIRA’s meeting agendas, which he alleged failed to adequately describe topics discussed in executive session and inappropriate discussion of employee severance packages for one of MIRA’s vendors in an executive session. The complaint again requested that the FOIC assess civil penalties against Kirk, Hunt, and MIRA’s chair, Don Stein.

An agenda for a regular meeting of MIRA on May 12, 2021, listed “pending [requests for proposal] RFPS,” “MIRA RFPs,” and “personal employment matters pursuant to Conn. Gen. Stat. Section 1-206, including the issues regarding the retention of critical skilled employees at the W-T-E facility.” Hennessy alleged the description of the RFPs was insufficient.

Hunt testified in a hearing that the agency believed it was going to discuss two RFPs in executive session, one concerning the hiring of new employees for a transfer station and the second to operate a transfer facility at another MIRA property, but that neither RFP had been officially issued.

Harmon’s report, as the case hearing officer, found that the respondents did not discuss RFPs at that meeting because they had not been issued, but that the executive session description in the meeting agenda made it impossible for the public to understand what was being discussed, violating FOIA as a result.

MIRA also argued that it considered certain non-MIRA employees as akin to MIRA employees because their roles were important to the organization’s functions and that, as a result, they believed it was appropriate to discuss severance packages and retention bonuses in executive session.

Harmon found that their reasoning “inappropriately undermines the basic policy of limiting the exceptions to the FOI Act’s open meeting requirements.” She again found that MIRA had violated FOIA, but declined to impose civil penalties.

At the March 27 FOIC meeting, Harmon was asked by commissioners whether she considered a civil penalty. Harmon said that she had considered doing so and asked MIRA to file an affidavit. When the affidavit came back, signed by Hunt, it listed a consultant as the drafter of the agenda, which was then circulated for review and comment.

Harmon said that she thought that Hunt, as the organization’s legal counsel, would be responsible. FOIA requires that civil penalties be filed against a person rather than an agency. However, Hunt, being retired, was no longer a part of MIRA.

The commission discussed the appropriateness of a civil penalty and ultimately voted to accept Harmon’s report, which did not issue a penalty but ordered MIRA to comply with FOIA in the future. However, they did “put MIRA on notice” that penalties would likely be assessed in a future case because they have “been a frequent visitor in front of us over the years.”

The rulings against MIRA come as state auditors recently found in an audit covering fiscal years 2021 and 2022 that the organization overpaid executives when it closed a Hartford facility in July 2022.

MIRA’s board approved lump sum severance and COBRA health insurance payments for four executives worth $1,044,980. Auditors found a condition providing severance pay at an employee’s annual salary rate for a year following their termination in the employment agreement of four executives. The agreements also included COBRA reimbursements for the employee and their dependents for a year. According to auditors, this exceeded the 16-week maximum in MIRA’s employee handbook.

In response, MIRA cited its statutory authority and language in its employee handbook permitting it to deviate from that policy but did not provide written justification for why it deviated in these instances.

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