Publisher revives ‘cookie’ suit in wake of decision on public records

Wednesday, December 9, 1998

Bolstered by a Tennessee Supreme Court ruling declaring that information in government computer databases constitutes a public record, an alternative newspaper publisher has refiled a lawsuit seeking access to city computer files.

Geoffrey Davidian publishes and edits The Putnam Pit, an electronic newspaper focused on the government of Cookeville and Putnam County, Tenn. Davidian says he wants access to the files to determine if government employees use work computers to visit Web sites unrelated to their official duties.

Specifically, Davidian filed a request last year under the Tennessee Public Records Act to view the city's computer “cookie” files, which are stored on computer hard drives whenever a user visits a Web site. Such files can reveal the Web sites a user visits.

After local officials denied him access, Davidian filed a lawsuit in federal court in October 1997.

U.S. District Judge Thomas Higgins dismissed Davidian's original lawsuit last September, saying that because the city does not allow public access to electronic data, there was no basis for a legal challenge.

In his ruling Higgins said that “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,” and it wasn't compelled to make them available to anyone.

But in a major decision on public records last month, the Tennessee Supreme Court ruled that information contained in computer data, no matter the format, constitutes a public record. With that decision, the high court ordered Nashville Electric Service, a public utility, to provide The Tennessean with full access to its customer database.

Utility officials argued that the newspaper should bear the cost of writing a computer program to assemble the records as well as the cost of notifying its 292,000 customers that the information would be shared with the newspaper.

Newspaper officials didn't object to paying $4,500 toward the cost of the computer program. But they said the $86,000 price tag to notify utility customers was an unconstitutional burden for a public record.

The Supreme Court determined that the utility couldn't withhold the records nor force the newspaper to bear the public-notification costs.

Davidian, who filed his new lawsuit last month in Chancery Court in Cookeville, said that the federal judge had “looked at this very narrowly. He made no decision on legitimate First Amendment issues.”

But he says he's seen some results after the state Supreme Court's decision. After waging a long battle with officials over access to parking ticket records, Davidian said the city's attorney recently gave him the records with no argument.

Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press in Arlington, Va., said the state Supreme Court decision on the whole should help Davidian's case.

But Kirtley said the decision won't help in two key areas: Whether Cookeville maintains the records Davidian seeks and whether it can produce them.

She maintains that if a government record is kept, it generally should be made available.

“To me this is the equivalent of a telephone toll record in that it shows what kind of transactions government employees are making with government equipment on government time,” Kirtley said. “This is the kind of thing a public records law typically encompasses.”