As it moves toward its first court hearing tomorrow, a novel case testing just how far public records law extends into cyberspace appears destined to be a long, drawn-out battle, one of its attorneys said.
As reported previously, a weekly newspaper in Tennessee is suing a local municipality in an attempt to obtain files that are automatically stored on employees' computers when they surf the Internet. Plaintiff Geoffrey Davidian, editor of the Putnam Pit, said in court documents that officials in the town of Cookeville turned him down when he tried to obtain the files under Tennessee's public records act. In addition to seeking an order forcing the disclosure of the so-called cookie files, Davidian's suit also seeks unspecified punitive awards and attorneys' fees.
The case--which appears to be the first to test whether cookie files are considered public under a state's public record law--receives its first court hearing tomorrow. But Sam Harris, the attorney representing Davidian, said little is likely to come out of it.
"I've made the offer we will drop any claim to monetary damages if they will agree that any Internet file is public information," said Harris. Attorneys for the city have rebuffed the offer, he added, and are now stalling for time.
Last month, the U.S. district judge in Nashville hearing the case postponed a preliminary injunction hearing until after tomorrow's case management conference. At the informal meeting, the judge will set deadlines and iron out other procedural matters, but Harris said he may use the hearing to file an expedited motion for access to the files, called a temporary restraining order.
Cookeville officials appear to be digging in their heels. Michael O'Mara, city attorney for the 26,500-person city about 75 miles east of Nashville, said he has obtained a written opinion from Tennessee's attorney general that the computer files Davidian is seeking are not considered public under that state's laws. Specifically, O'Mara points to provisions in the law that make exceptions for temporary records and working papers.
A cookie "is about the equivalent of scratching notes on a yellow pad and at the end of the day throwing them away," said O'Mara. "We don't think that the documents the Putnam Pit are requesting are public documents." O'Mara declined to discuss the possibility of a settlement in the case, citing city policy.
In a press release posted on his Web site, Davidian said he is seeking the files in an attempt to hold public employees accountable. "The cookie files could show whether taxpayers are footing the bill for city employee access to Internet sites focusing on such issues as white supremacy, pornography, [or] white slavery," Davidian explained.
Karl Olson, a California attorney who practices media law, said that on the surface, Davidian's case appears solid. Tennessee's law defines a public record broadly as any media, "regardless of physical form or characteristics [that is] made or recorded...in connection with [the] transaction of official business by any governmental agency."
He said it was predictable that the city would contend that cookies are temporary records that are exempt from public record laws. Such arguments are common, but by no means foolproof, said Olson, an attorney at Levy, Ram & Olson in San Francisco, adding, "To me there's a pretty good argument in favor of disclosure."
Predictably, Harris, the plaintiff's lawyer, agreed and vowed to press on.
"I think the legislature wrote a statute that gives a lot of leeway as to how you interpret it [a public document]," said Harris, a solo attorney in Cookeville. "To me, this is really a First Amendment case. Can public officials subvert the press simply by storing information using modern technology?"