Judge keeps government’s ‘cookie’ files confidential

Wednesday, September 30, 1998

Do public employees in Putnam County, Tenn., browse the Internet looking for pornography, racist literature or Satanic Web sites during business hours? Perhaps Geoffrey Davidian, a Beverly Hills, Calif.-based investigative journalist, will never know.

Davidian filed suit in October 1997 against the city of Cookeville, Tenn., a town of 22,000 people about 80 miles east of Nashville. City officials had denied his request filed under Tennessee's Public Records Act for access to the city's computer “cookie” files, electronic files that reveal which Web sites computer users visit.

Davidian publishes The Putnam Pit, a grass-roots electronic newspaper that focuses its commentary on Cookeville's local government. He said he was interested in finding out whether city computers had been used to browse Internet sites that were unrelated to employees' official duties.

He argued that such files, like other government documents, should be available to the public and press under the First Amendment and the state's open records law. Davidian also claimed that by not linking to his Web site from Cookeville's official site, the city was violating his First Amendment rights.

But U.S. District Judge Thomas Higgins dismissed the lawsuit last week, saying that because the city does not allow the public access to electronic data, there was no basis for the challenge.

“In the Defendants' statement of undisputed facts, they state that except for one occasion where Geoffrey Davidian was allowed to see on one of the City computer screens that Internet 'cookie' files are not retained on the City's computers, the City of Cookeville has not now and never
has allowed the general public nor members of the press to inspect records of Internet usage on City computers,” Higgins wrote.

In granting the city's motion for summary judgment, Higgins agreed with the city that the state's public records act does not allow public access to the records sought by Davidian.

S. Russell Headrick, a First Amendment attorney and an expert on public records law, said that while he is not surprised by the ruling, he disagrees with it.

“The concept is that when you have information created by a government employee on a government computer bought with government dollars, the government is hard-pressed to say that it's not public information,” he said. “It doesn't make a difference whether that something is temporary or not, it's considered public when it's created and the public is entitled as long as it's in existence to view it.”

Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, said that this sort of government information does not fall into the category of records traditionally open to the public.

“The constitutional claim as far as the right of access was quite a stretch,” Kirtley said. “I'm not surprised the federal court ruled the way it did. I can't really say that the ruling was unreasonable. In fact, it was quite predictable.”

In court briefs, T. Michael O'Mara, Cookeville's city attorney, argued that the city's Internet files are temporary documents or “working papers” that do not meet the definition of a public record.

O'Mara said: “We didn't make the argument that looking at personal records of employees is a violation of their privacy. We simply told him: 'Those [cookies] aren't available to people and we're not going to give them to you.' It's not considered a public record, and I don't know if it will ever be.”

O'Mara said the judge's ruling “was what we had always anticipated — that the city did not engage in any violation of the First Amendment rights of the Putnam Pit or Mr. Davidian” because the city has never made those records public.

“First Amendment entities have the right to gather news, but not a 'super' right to gather news [in terms of accessing what] the city doesn't give out anyway. The judge recognized that so long as he was treated like everyone else, there was no” violation of Davidian's First Amendment rights.

Samuel J. Harris, Davidian's lawyer, was unavailable for comment, but told the Times: “If a government employee, on government time, is using a government computer and government-paid Internet access to visit a baseball card site or the Timothy McVeigh Home Chemistry Lab” then the Internet file created by his browsing is a public record.

“Computers are an asset of the city,” Harris said. “Where do city officials go on the Net? We don't know. But we think the public should know.” Harris said he believes that computer files logging Internet use by city employees are similar to a public official's telephone toll records and cell phone records, which have been held by Tennessee courts to be public records.

In The Putnam Pit, Inc., v. City of Cookeville, Higgins also found that Davidian had no right to a hyperlink to his Web site from the site maintained by the city of Cookeville. The city's official Web site was not a public forum, Higgins said, because it did not allow for two-way communication.

In briefs filed with the court, Jim Shipley, Cookeville city manager, had argued: “The City has a web page … to give information on the Internet about the city. It is not a public forum for people to express their opinions. It is not a public bulletin board for people to advertise their businesses.”

Davidian, who was traveling to Las Vegas and unavailable for comment, says on his Web site that he will appeal the ruling.

Citing the judge's opinion that no First Amendment violation existed, O'Mara said he feels certain that an appeals court would uphold Higgins' ruling.