In a case that could break new legal ground, a weekly newspaper in Tennessee is suing to obtain the cookie files on local municipality workers' personal computers.
The Putnam Pit filed under the state's open-record statutes to obtain the cookie files of city employees in Cookeville, Putnam County. The paper's publisher and editor Geoffrey Davidian was first told to pay $328 for them. But after finding out what cookies were, the city reconsidered and decided the files were not a matter of public record after all, said city attorney Michael O'Mara.
"It's a simple lawsuit over public records and whether cookie files are public record," O'Mara said. "We don't think this meets the definition."
Davidian's attorney, Sam Harris, said the files are covered under the Tennessee state code, which broadly defines an accessible public record as "all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files, and output, films, sound recordings, or other material regardless of physical form or characteristics made or recorded pursuant to law or ordinance or in connection with transaction of official business by any governmental agency."
The statute makes exceptions, such as medical records, but browser cookies are not among them, Davidian contends.
"For them not to give those cookie files is a violation of the First Amendment," said Davidian, who likens the cookie files to the phone logs of a public official. "We want to know what a government official does on the time they're being paid a salary."
O'Mara disagreed with Davidian's phone-log analogy.
"I view cookies like junk mail, like something someone threw on the steps of City Hall," he said.
O'Mara will argue before the court that cookies shouldn't receive the same status as public records.
"They're more like working papers, like notes on a yellow legal pad. City workers don't have to keep every scrap of paper they produce," he said.
Even though Davidian and Harris are using the Tennessee open-record statutes to argue their case, the case is now before a federal court in Nashville because Davidian is accusing the city of violating his civil rights.
The Putnam Pit began in 1996 as a print publication. Davidian launched a Web site in December because people opposed to his coverage were stealing and destroying print editions, he said.
"We're pretty aggressive," Davidian said. "We have a flamboyant style, but we go through the records meticulously. That's why they're afraid to give us those records."