Magazine article Editor & Publisher

No Crumbs for Newspaper: City's Cookies Are Confidential

Magazine article Editor & Publisher

No Crumbs for Newspaper: City's Cookies Are Confidential

Article excerpt

A federal court rules reporters don't have First Amendment rights to computer records showing how government employees surf the Web

An alternative Tennessee newspaper plans to appeal a judge's ruling that it was denied access to the electronic "cookie" records of the city of Cookeville, Tenn. These cookies are left on computers whenever a user visits a Web site, and can later be used to determine which sites a user has visited.

In a potentially precedent-setting case, the Putman Pit, a monthly newspaper, lost its court battle against the city when a federal judge ruled on Sept. 24 that the paper did not have standing to bring the access case on First Amendment grounds. The newspaper's lawsuit against the city was sparked after Geoff Davidian, the paper's publisher and editor, sought parking violation records in electronic form, but the city was only willing to provide the information on paper. It was then that Davidian decided to also seek access to the cookie files on municipal computers to determine whether employees were looking at sports, shopping or adult Web sites during the work day.

In a lengthy decision, U.S. District Court Judge Thomas Higgins said providing the documents in paper form was satisfactory. "The plaintiffs argue that the Tennessee Public Records Act grants the public access to the records at issue in this case," he wrote. "While this may be true and could consequently result in a violation of state law, that Act does not, in and of itself, mean that the City of Cookeville has, in actuality, traditionally allowed the public access to the records at issue. An that is the crucial issue in determining whether the plaintiffs have a First Amendment right to access the City's computer records, and there is an absence of a genuine issue of material fact regarding that issue, the defendants' motion for summary judgment must be granted as to the federal claim based on the First Amendment.

"It is clear that the plaintiffs have been given hard copies of parking ticket records on other occasions. Thus, the plaintiffs base their First Amendment claim on one incident when they were told they could not see the records on that day. Such an isolated incident does not rise to the level of a First Amendment claim."

Davidian said he plans to continue to fight for access to those computer files. "I feel obligated to my profession and colleagues to fight every battle in which government attempts to operate in secrecy," he said. A resident of Beverly Hills, Calif., Davidian founded the scrappy newspaper after visiting Cookeville some time ago.

He said that in addition to the federal appeal he will also pursue the case through the Tennessee state courts. "We're appealing this baby, and we're going at them at the same time in a new state court effort to free the information we have been seeking for more than a year," Davidian said.

City manager Jim Shipley said the next move is up to Davidian. "The judge was quite clear as to why he dismissed the case," he said. "As to what happens now, that is up to Davidian."

Samuel Harris, Davidian's attorney, said an appeal will be filed with the 6th Circuit Court of Appeals in Cincinnati. "I think [the judge] made some factual determinations that were wrong and certainly that's why we are going to appeal it," said Harris, who believes the novelty of the case may be one reason the judge dismissed it.

"He only ruled on the constitutional part," Harris said. "We always thought the novelty of asking for records in computer form may not rise to the level of a First Amendment violation at this point in time because a public official may not know whether he has to turn that over or not. …

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