The Galleria Office Park rises above the businesses at Akers Mill Square seen looking north on Cobb Parkway on Thursday, Nov. 14, 2013. CURTIS COMPTON /staff CCOMPTON@AJC.COM
Photo: CURTIS COMPTON / AJC/Atlanta Journal Constitution
Photo: CURTIS COMPTON / AJC/Atlanta Journal Constitution

Do CIDs have to comply with the Open Records Act? Cumberland says ‘No’

Just because it collects millions of dollars in taxes, doesn’t mean it has to pull back the curtain on its inner workings, says the Cumberland Community Improvement District.

Legal experts disagree.

A dispute between a Cobb County resident and the Cumberland CID over documents has raised the thorny question of just how public this private-public entity is.

Craig Kootsillas submitted a request last year for documents related to construction of the  Akers Mill ramp onto the Northwest Corridor managed lanes, a project that was spearheaded by the CID. Cobb County has committed $15 million toward construction, according to Transportation Director Jim Wilgus.

The CID provided the documents, along with a disclaimer that it was doing so voluntarily and was not obligated to respond to requests made under the Georgia Open Records Act. Kootsillas was asked to reimburse the CID for the cost of retrieval to the tune of $562.50.

Kootsillas did not pay, and the CID chose not to pursue collection efforts, according to an email exchange provided to The Atlanta Journal-Constitution by Kootsillas. 

Kootsillas then reached out to the state Attorney General’s office, which runs an informal mediation program designed to help citizens with open records requests.

On June 19, Assistant Attorney General Jennifer Colangelo wrote a letter to Lynn Rainey, the CID’s attorney.

“I disagree with your conclusion that the CID is not subject to the Open Records Act,” Colangelo wrote. “I would be happy to provide assistance to the CID with the Open Records Act as part of our mediation program.”

Rainey didn’t budge in his response. 

Rainey wrote that a CID is neither an “agency” nor an “authority” subject to the Open Records Act, citing opinions from the State Ethics Commission and the Georgia Department of Revenue.

“You have opined that CIDs are akin to other governmental entities,” Rainey wrote. “They are not in many respects ... CIDs are voluntarily formed by businesses and commercial property owners within a limited geographical area and self-impose additional fees and taxes upon themselves.”

Attorney David E. Hudson, a member of the Georgia First Amendment Foundation board, reviewed both letters along with supporting documents and said in his view CIDs are, in fact, subject to open government laws, including the Open Records Act.

Under Georgia law, an otherwise private entity becomes subject to these laws when it receives 33 1/3 percent of its funding from tax funds allocated by an agency, Hudson wrote in an email. 

Also under Georgia law, a CID is a body “ similar” to an agency, board, commission, or authority of a municipal corporation, he continued. 

“That is reasoning of the Law Department [AG’s office] with which I agree,” he wrote.

At the very least, a CID is a “committee” created by a government agency and is therefore subject to the Open Meetings Act, he added.

David L. Hudson Jr. of The Newseum Institute’s First Amendment Center (no relation to David E. Hudson) pointed out that the CID defines itself as a “public-private assessment district.” 

“I would think—given the broad spirit of open government laws—this should be covered,” he wrote.

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