The Putnam Pit: Amended federal complaint for cookies

THE PUTNAM PIT, INC., and GEOFFREY DAVIDIAN, Plaintiffs v.	Case No. 2-97-108
CITY OF COOKEVILLE, and JIM SHIPLEY, in his official capacity as City Manager of the City of Cookeville, Tenn. Defendants	WISEMAN JURY TRIAL DEMAND

AMENDED COMPLAINT AND PETITION TO ENJOIN CITY OF COOKEVILLE
FROM DENYING INSPECTION OF PUBLIC RECORDS
AND TO FORCE COMPLIANCE WITH TENNESSEE PUBLIC RECORDS LAW

1. The Plaintiff, Putnam Pit, Inc., is a Tennessee Corporation publishing a newspaper titled The Putnam Pit.

2. The Plaintiff, Geoffrey Davidian, is a journalist, Tennessee coordinator of Investigative Reporters and Editors, publisher and editor of The Putnam Pit and president of Plaintiff, Putnam Pit, Inc. As to the events alleged, Geoffrey Davidian was at all times acting on behalf of his employer, Putnam Pit, Inc.

3. The Defendant, City of Cookeville, Tennessee, is a Tennessee municipality with offices at 45 East Broad St., Cookeville.

4. The Defendant, Jim Shipley, is being sued in his official capacity as City Manager for the City of Cookeville, Tennessee and as the official with authority over the public records sought as set forth below.

5. Acting pursuant to Tennessee Code Annotated 10-7-503 and as a citizen of the State of California, a member of the press and as the employee of a Tennessee corporation, the Putnam Pit, Inc., Plaintiff Geoffrey Davidian in July of 1997 sought a copy of the electronic computer file containing the names, license numbers and dates of violation for outstanding municipal parking tickets

6. Defendant, City of Cookeville, refused to allow inspection or provide a copy of the
electronic file but instead offered to print out dozens of pages of assorted information, some of which would be useful to Plaintiffs and some of which would not. Further, some of the information on the 41 page printout was erroneous. Plaintiff sought to inspect public records on parking tickets in electronic form if available, but nonetheless sought inspection of the records in their most useful, accurate, and up-to-date form maintained by the City of Cookeville and its police department.

7. Defendant City of Cookeville, through its city manager and chief of police, refused to provide inspection of the data in the form it is maintained or provide a copy of the data in the form in which it is maintained.

8. When Plaintiffs determined that the data provided was worthless, Plaintiff Davidian told Police Lt. Nathan Honeycutt that he intended the information to be current, and again asked for the data in electronic form, either on diskette, nine-track tape or whatever medium the data are maintained

9. City Attorney T. Michael O'Mara, in a July 9, 1997 letter to Plaintiff Geoffrey Davidian, stated that the city would allow Plaintiff to inspect files maintained electronically by using city computers, and other data in the way it was maintained, but in no case would the city provide electronic data in a way that precluded the city from filtering it first.

10. Subsequently and in an unrelated request for inspection of public records, Plaintiff Davidian on August 12 asked Defendant, Jim Shipley, for so-called "cookie" files that would show whether city computers had been browsing to Internet sites not consistent with government employment, such as adult-oriented pornography sites or ones advocating white supremacy or Satanism or worse, The Putnam Pit on-line.

11. The Plaintiff also wanted to inspect the records recorded on each of the city computers to see which city computers accessed Plaintiff's Internet site when a clear intent to charge the city for each access to the Putnam Pit web page was announced but the city refused to pay.

12. Defendant, Jim Shipley, at first demanded a $328 deposit to pay someone to inspect the computers, then announced as a pretext to prevent further investigation and access into public records that even with payment access would be denied pending a determination of whether the files were public. Although state law does not remove "cookie" files from the public realm, Defendants willfully refused to provide inspection of the files.

13. On October 1, 1997, the Plaintiffs wrote to Defendant Jim Shipley, seeking access to public records concerning "cookie file?' and police department parking tickets.

14. On October 2, 1997, via mail, Defendant Jim Shipley, stated in contravention of T.C.A. Section 10-7-503 requiring that public records be available during business hours, that nobody would be available to provide access to police data and that the Plaintiff would have to reschedule. Further. he stated that Plaintiff would not be allowed to inspect the "cookie" files maintained on city computers.

15. These records are not confidential or privileged but are public records to which any Tennessee citizen has the right to access according to Title 10. Part 7 of the Tennessee Code Annotated.

16. The Defendants knew or should have known the records are public, and be willfully refused to disclose the records to the Plaintiffs.

17. On Oct. 31, 1997, Plaintiffs sent by fax and electronic mail a request to inspect the city computer system's browser history and cache files.

18. On October 31, 1997, via e-mail, Defendants stated, in contravention of T.C.A. Section 10-7-503 requiring that public records be available during business hours, that such files were not public records and that the files were destroyed each day.

19. On Nov. 3, 1997, Plaintiffs requested access to a packet of materials containing
correspondence between themselves and the city, specifically relating to browser and cache files. Gail Fowler, assistant to Jim Shipley, stated that browser and cache files did not have to be shown to Mr. Davidian because they may be the subject of litigation in this lawsuit. Ironically, by the Defendants' refusal to allow inspection of these files, Plaintiffs now amend the complaint seeking inspection of these records. This is a willful refusal to allow access to the public records as there is no exception to the accessibility of public records based on a "litigation" basis.

20. On Nov. 3, the Defendants refused to provide access to materials that were kept as a
public record and not related to litigation.

21. These records are not confidential or privileged but are public records to which any Tennessee citizen has the right to access according to Title 10, Part 7 of the Tennessee Code Annotated.

22. On three occasions, plaintiff asked that the Putnam Pit web site be included on a list of local Internet sites linked to the city's Internet site.

23. On Oct. 31, Defendant Shipley stated by electronic mail that he would not include the Putnam Pit as a link, and that he had decided to exclude all but not for profit entities.

24. Nevertheless, for-profit entities were retained on the list. On information and belief, the Plaintiff would state that Defendant Shipley offers whatever reason as a pretext for denying the dissemination of the journalism set forth on the Putnam Pit's web page. Such denial is based upon the content of the Putnam Pit.

25. The commercial links remained for several days until Nov. 3, when Plaintiffs again asked to be included on the list of links. Defendant Shipley checked and stated that all commercial links had been removed from the list. Plaintiffs asked if the Putnam Pit would become not-for-profit whether the Putnam Pit's Internet site would be included.

26. Defendants stated no inclusion in the city's web links would occur even if the Putnam Pit were to become not-for-profit like the other entities included as links.

27. The City of Cookeville provides access to public records to members of the press; the Defendants were highly aware that the Plaintiffs were acting as the press in their request.

28. The Defendants denied these records to Plaintiffs willfully and continually over the months of July through October 1997.

29. Plaintiffs requested and were allowed access to the browser files maintained on the City of Cookeville's computers on November 3, 1997 in the morning. Plaintiffs' inspection revealed no information was available and that the browser file had recently been expunged from the hard drive. Later in the afternoon, the Plaintiff, having been told by Defendants and city employees that the browser file was expunged daily, sought a subsequent inspection to see if any new information would be available on the browser file. Without justification for its denial, the City of Cookeville refused Plaintiffs further inspection of the very files they had allowed Mr. Davidian to
inspect that morning.

30. The Defendants are maintaining a policy and custom of denying and obstructing the Plaintiff as the press, both in news gathering and in its efforts to disseminate information to public, and are knowingly violating the Plaintiffs' rights to free speech and freedom of the press in violation of the First Amendment of the United States Constitution.

31. The Defendants are maintaining a policy and custom of denying arid obstructing the Plaintiff as the press, and are knowingly violating the Plaintiffs' rights to due process and equal protection of the law by arbitrarily and capriciously creating bureaucratic loopholes, not applied to other individuals or members of any other media, in denying Plaintiffs public records in violation of the Fourteenth Amendment of the United States Constitution.

32. The Plaintiff, Geoffrey Davidian, has had his agents previously denied public records by the City of Cookeville.

33. The Plaintiffs seek immediate access through an expedited hearing under the procedures set forth by the Tennessee Open Records Act.

34. The Plaintiffs seek injunctive relief that they will be allowed unobstructed access without delay in obtaining public records maintained by the City of Cookeville, Tennessee. Plaintiff, The Putnam Pit, Inc., also seeks injunctive relief so as to allow its web page, a page concerning the Cookeville, Tennessee and published by a Tennessee corporation based in Cookeville, Tennessee, to be linked to the City of Cookeville's web link.

35. During all times mentioned within this Complaint, the Defendants were acting under color of law.

36. As the result of the foregoing denial of civil rights and 42 U.S.C. Section 1983, the
Plaintiffs have suffered damages in loss of timely access to data needed for the press, monetary damages as the result of the Plaintiff being inconvenienced and obstructed by pretextual delays in the denial of access to the public records, humiliation and mental anguish as to the Plaintiff, Geoff Davidian, and the increased cost of investigating public matters in Plaintiff's role as a disseminator of information, i.e. the press.

1. This Court assume jurisdiction and grant the Plaintiffs a trial by jury of twelve persons;

2. This Court grant an expedited hearing pursuant to the Tennessee Public Records Act;

3. This Court issue an injunction to prevent further prior restraint on the press by the Defendants by ordering that the Plaintiffs be given access to inspect public records during business hours and that the Plaintiffs' web page be linked to the City of Cookeville's web page;

5. This Court award the Plaintiffs attorney fees and other litigation costs, and