What do a guy from Beverly Hills, Cookeville’s city hall, and the Internet have in common? A most unusual case in freedom of information law.
by Joe Tarr
Ever walk through a government office and see all those employees tapping away at their computers? Just what in the heck are they doing, anyway?
Could they be using your tax dollars to browse porno sites, campaign for the next election, or shop for Christmas presents?
Whether citizens will be able to answer that question could hinge on a civil rights lawsuit by an obscure Tennessee on-line paper called the Putnam Pit. The paper covers the community of Cookeville, a city of 26,000 about 100 miles west of Knoxville.
Its publisher, Geoff Davidian, wants to see the city's Internet history files (sometimes referred to as "cookie" files) to find out how employees are using the Web. The case would set a precedent in federal court defining what are public and private records, affecting citizens everywhere.
"The underlying threat if this goes against us is every government, if it wants to keep something from us, just has to put it on its computer," he says. "It's the information that is public, not the way it is maintained."
Davidian is not some homegrown gadfly with a grudge against his city leaders. Oddly, he lives thousands of miles away in Beverly Hills and has never lived in or near Cookeville. Still, he devotes his time taking to task its city leaders, whom he calls "sleazy and corrupt."
Davidian was probably the first to demand to see a municipality's cookie files, invoking freedom of information laws as support. The gesture drew attention from national publications like The New York Times and Business Week, along with specialized computer and media journals. Taking Davidian's lead, newspapers in Arizona and Florida have successfully gotten Internet history files of their cities and schools (and discovered the computers were used for gazing at porn).
Last fall, Davidian asked for several different types of files, which together record where computer users went on the Web, when they went there, and what parts of a Web page they visited. He speculated some employees might be visiting pornographic or white supremacy Web sites and heard a rumor that one worker was using city computers to sell baseball cards.
The city refused to hand over the files, claiming they are nothing more than temporary notes scribbled on a pad and thrown away at the end of the day.
"They're much more like the definition of working papers," says city attorney Michael O'Mara. "They're like the notes you make on a pad. They're the things you do along the way before you reach the final product...All this scratching and crawling around you do during the day is more or less thrown away."
Sam Harris, Davidian's lawyer, says the city's argument is bogus. Public records laws must apply to the new ways of recording and communicating information. Some people have compared cookie files to long distance and cell phone records, which are considered public in most states.
"What are we supposed to do if the world changes?" Harris says. "A lot of times in my office, we don't run a hard copy. If you wanted to see my filing documents, you'd have to get on my computer."
Officials from the American Civil Liberties Union say the issue is not so cut and dry. Just because computers are owned by the public doesn't mean they don't have private uses, they say.
"I think it inevitable that there are people who are going to try to get any information that exists. Most of the time, that's a helpful thing. This may be an instance when there are privacy issues on the other side. I don't think the courts have begun to deal with the problem. I don't know where this is going to go," says Chris Hansen, senior staff counsel for the ACLU, based in New York City.
"If people are being allowed to use computers on their desk for personal use, then you need to be careful about the government or anyone else violating their privacy," Hansen says. "If your employer or school or library affords you Internet access, to what extent can they invade your privacy?"
But at least in Cookeville's case, that argument fails, says Harris. "The city's policy, we just found out, is the computers are to only be used for official business. Therefore, [Davidian] just wants to see what the city's official business is." (O'Mara says he doesn't know if the city has such a policy).
The Putnam Pit isn't out to squash privacy rights, Harris says. But taxpayers have a right to know how computers bought with public money are being used. Harris referred to the rumor that one employee is selling baseball cards.
"That's something interesting people should know. If you can get the history file, you can get where they go and what time they went there," Harris says.
David Sobel, legal counsel for the Electronic Privacy Information Center in Washington, D.C., says he doesn't have an answer to the dilemma. But if the courts rule on the side of access, he says, public employees need to be made aware of what they do that is creating a record.
"All computer users in any work environment need to have the technology explained to them. When they think they are doing something anonymously, a record is in fact maintained," Sobel says. "It's being retained within the system and remains accessible to the employer, whether it's a public or private employer."
How the 53-year-old Davidian came to battle Cookeville's city trustees is as fascinating as the battle itself.
A former reporter for the Milwaukee Journal and the Arizona Republic, he first heard of Cookeville while he was riding a hotel shuttle in New England a few years ago. On the bus, he met a woman whose daughter died in an arson fire in Cookeville in 1992. No one was ever charged. The woman asked Davidian to look into it.
Davidian's two children live in Knoxville, so during a 1995 visit he made a road trip to Cookeville. He started investigating the fire but was denied access to public records because he wasn't a Tennessee resident and wasn't affiliated with a newspaper.
The response infuriated Davidian. So he started the Putnam Pit and began his crusade.
Since then, he has blamed Cookeville officials for all sorts of horrible things. He's accused the police of covering up or failing to investigate two murders and one attempted murder; the clerk of courts of stealing from prisoners; and other city officials of fixing parking tickets. He's ridiculed judges and the county's district attorney general as incompetent and called all of them corrupt good ol' boys.
On-line, there are caricatures of public officials (including O'Mara, whom he shows with a peeled skull exposing his brain and with money in his vest pocket). There are appeals to city employees to narc on their bosses, with promises of anonymity. Davidian even goads Court Clerk Lewis Coomer to sue the paper for its claims: "Come on Loo Us, sue us. It's me, Geoff Davidian, come and get me. Let's get some discovery going before the next election."
"In Cookeville, every time you pick up a rock, a slug comes out," Davidian says. "You have to wear a hard-hat because stories are always falling on you."
"The law does not apply to public officials in Putnam County. They think they're in Oz. I'm going to be a dose of reality, and they're going to be dragged screaming into the 20th century and the United States. Sorry, boys. Party's over," Davidian says.
Davidian has also irked people outside homey Cookeville. He has been threatened with a lawsuit by a court reporting firm for putting transcripts of the Minnesota tobacco trials on-line. (Undeterred, he's still doing it.)
The Pit started as a low budget photocopied publication. It eventually became an on-line paper, which can be updated more frequently and cannot be stolen. Every month or so (when he can scrape together about $1,000), Davidian prints a paper version. The Pit has contributors, who write about politics and the environment. Plus, there's a link to Cookeville's weather, updated daily. He ran advertisements for a time, but stopped because he feared it would hurt his credibility.
Cookeville is surrounded by a gorgeous landscape of hills and trees, Davidian says. "But the political climate is so ugly, you begin to lose sight of how beautiful it is," he says. "The people who live there are really the victims."
O'Mara says Davidian's suit is not that big a deal, and it won't matter much if he wins: The city doesn't save its cookie files. "Our Internet history files are set for zero-day retention. You'd have to be there at 4 in the afternoon to ask what everyone looked at during the day, and the next day they wouldn't be there."
The Putnam Pit crew is skeptical of that explanation. When Davidian first asked for the cookies, he was told they would cost $328. How exactly was that price tag calculated and what was for sale, Harris asks.
Harris has asked Judge Thomas Higgins to first rule on whether cookies are public records before going ahead with the trial over whether the city violated Davidian's civil rights. The first ruling should be in by June, he says.
For Davidian, getting access to the cookie files is by now a matter of principle, not a story. Anything eye-opening he might have found in the records has probably been deleted, he says.
But Davidian is eyeing grander rewards.
The Putnam Pit is not some pet project for him. He envisions it becoming what newspapers should bewatchdogs keeping government in check, without being controlled by advertisers or business.
"I expect the Putnam Pit to be the dominant newspaper between Nashville and Knoxville in the next 5 years," Davidian says. "And we are not going to be dominated by anybody. We're going to do some ass kicking. And there is going to be a lot of public officials going to prison, so help me God.
"When I win this lawsuit, you're going to see a new paper born."