UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEAST DIVISION AT COOKEVILLE
 

THE PUTNAM PIT, INC., and
GEOFFREY DAVIDIAN,
 

                                                                                                    No.: 2:97-l08
                                                                                                    WISEMAN
vs.

CITY OF COOKEVILLE, and
JIM SHIPLEY, in his official
capacity as City Manager of
the City of Cookeville,

ANSWER TO PLAINTIFFS' AMENDED COMPLAINT

  Come Defendants City of Cookeville and Jim Shipley, in,  his official capacity, and for Answer to Plaintiffs' Amended complaint would show as follows:

    1.     Regarding the allegations of Paragraph 1 of the Complaint,  it is admitted that The Putnam Pit,  Inc.  is a corporation.  Defendants are without knowledge or information sufficient  to   form  a  belief  regarding  whether  its publication, The Putnam Pit, would constitute a newspaper. For purposes of this Answer, that allegation is denied.

    2.     Regarding the allegations of Paragraph 2 of the Complaint, it is admitted that Plaintiff, Geoffrey Davidian, is a journalist, editor and president of The Putnam Pit and
at all material times was acting on behalf of The Putnam Pit. Defendants are without knowledge or information sufficient to form a belief regarding whether Davidian is coordinator of "Investigative Reporters and Editors."

    3.     The allegations of Paragraph 3 of the Complaint are admitted.

    4.    Regarding the allegations of Paragraph 4 of the Complaint,  it  is admitted that Jim Shipley is  the City Manager for the City of Cookeville and is one official who
makes decisions with respect to public records.  It is denied that he is a final policy maker for the City with respect to that subject matter.

     5.    The allegations of Paragraph 5 of the Complaint are admitted.  Defendant further avers that Plaintiff was given all the request of information.

    6.    Regarding the allegations of Paragraph 6 of the Complaint,  it  is  denied that  Plaintiff was  refused  the opportunity to inspect the electronic file but admitted he
was not provided a copy of the electronic file on disk.  It is admitted the City offered and,  in fact,  provided the Plaintiff the same information printed out in hard copy,
paper format.   It is admitted that some of the data was inadvertently incorrect   Defendants are without knowledge or information sufficient to form a belief regarding whether this information was useful to Plaintiff or not; but it was what he requested.

    7.    Regarding the allegations of Paragraph 7 of the Complaint, it denied that Plaintiff was refused inspection of the data in the form it was maintained to the City.  It is admitted that Plaintiff was not provided a copy on a disk of the data in electronic form   It is denied Plaintiff was not provided a written copy of the information in the manner in which the City keeps it.

    8. Regarding the allegations of Paragraph 8 of the Complaint, it is denied that the data provided Plaintiff was worthless, and averred that it is the same data that the City
maintains  in  its  normal  manner. It  is  admitted  that Plaintiff requested that the information be provided to him in electronic form which request was denied,  and in lieu thereof Plaintiff was allowed to inspect and copy whatever data the City had in hard copy,  paper  form,  as  it  is maintained in the ordinary course of the City's business.

    9.    The allegations of Paragraph 9 of the Complaint are admitted except that it is denied that Plaintiff was told that the City would not provide data in a form that precluded the City from filtering it first and denied that the City does this.  The precise information communicated to Plaintiff is set forth in the July 9, 1997, letter from City Attorney O'Mara to Plaintiff, attached as Exibit [sic] A to this Answer.

  10.    Regarding the allegations of Paragraph 10 of the Complaint,  it  is  admitted  that  on or  about August  12, Plaintiff asked Jim Shipley for "cookie" files.  It is denied
that "cookie" files would reflect the information alleged in Paragraph 11 of the Complaint 11. It is denied that Plaintiff requested to inspect records  regarding  what  City  computers  had  access  to Plaintiff's web site, and averred that Plaintiff alleged he
knew that this had been done.  It  is  agreed that  the Defendant refused to pay Plaintiff for accessing The Putnam Pit web site, since there was no password and the web site is
open to the public domain.

  12.    Regarding the allegations of Paragraph 12 of the Complaint,  it  denied  that  Defendant  Shipley  demanded  a $326.00 "deposit."   It is admitted that Defendant Shipley advised Plaintiff that the cost to the City to obtain the information City officials believed Plaintiff had requested would be $328.00 for the time the computer managemer [sic] would have  to  spend  (twenty  to  thirty hours)  to  obtain  this
information, which was not information otherwise maintained in an accessible format by the City.   It is averred that Plaintiff was advised that this would be the cost that would have to be paid up front and Plaintiff was asked whether he wanted the  City to proceed with the  research Plaintiff requested. Mr. Shipley's verbatim e-mail response referred to in Paragraph 12 of the Complaint is attached as Exhibit B. Plaintiff did not respond regarding whether he wished to proceed with the information request.  It is denied that the request for payment was a pretext to prevent Plaintiff from investigating or accessing public records.  It is denied that the information sought constitutes public records. It is admitted that, the next week Plaintiff was advised that the City had learned what "cookie" files actually were, and that the City's  research  revealed that  they were  not public records

    13.    The allegations of Paragraph 13 of the Complaint are admitted except that it is denied that "cookie" files are public records. Defendants further aver that Plaintiff had
already been provided the information regarding the parking ticket.

    14.    Regarding the allegations of Paragraph 14 of the Complaint, it is admitted that Plaintiff sent on or about October 2, 1997, an e-mail to Jim Shipley requesting access
on Friday, October 3 at noon to data in computerized format. It is admitted that Plaintiff was advised that the data in computer format would not be available for inspection that day because the computer manager for the police department would  not  be  there  but  Plaintiff  could  see  whatever information he wished in the hard copy, paper files. It is admitted that Plaintiff was denied access to "cookie" files,
since they are not public record.

    15.     Regarding the allegations of Paragraph 15 of the Complaint, it is admitted the records are not confidential or privileged by statute,  but  denied that  they are public
records to which citizens have a right of access under the Open Records Act.

    16. The allegations of Paragraph 16 of the Complaint are denied to  the  extent  the word  "records"  refers  to "cookie" files or similar computerized working papers and
similar data not provided Plaintiff. Defendants aver that Plaintiff has always been allowed access to public records in paper format.

    17.    The allegations of Paragraph 17 of the Complaint are admitted.

    18.    Regarding the allegations of Paragraph 18 of the Complaint, it is admitted that Plaintiff was advised that the computer system's browser history and cache files were not public records and that the system is set up so that it does not save such files.   It is denied that these files are public records.  It is denied the files are "destroyed."

    19.    Regarding the allegations of Paragraph 19 of the Complaint, it is admitted that on or about November 3, 1997, Plaintiff Geoffrey Davidian requested of Gail Fowler to see a personal copy of correspondence between the City and Mr. Davidian,  which file was  compiled by Ms.  Fowler at  the request of counsel for the City.   It is denied that the packet of materials specifically relates only to browser and cache files.  It is admitted that Plaintiff was told that browser and cache files did not have to be shown to Plaintiff because they were not public records. It is denied that Plaintiff was told that he could not view browser and cash [sic] files because they were the subject of litigation and averred that they simply are not public records. The remaining allegations of Paragraph 19 of the Complaint.

    20.    The allegations of Paragraph 20 of the Complaint are denied.
 

    21.    The allegations of Paragraph 21 are denied with respect Plaintiff has been denied

     22.   The allegations of Paragraph 22 of the Complaint are admitted.

    23.     The allegations of Paragraph 23 of the Complaint are admitted.

    24.    The allegations of Paragraph 24 of the Complaint are denied.

    25.    The allegations of Paragraph 25 of the Complaint are admitted.

    26.    The allegations of Paragraph 26 of the Complaint are admitted.

    27.    Regarding the allegations of Paragraph 27 of the Complaint, it is admitted that the City of Cookeville Charter provides for access to public records to members of the press and averred that Plaintiff has such access.

    26.    The allegations of Paragraph 28 of the Complaint are denied.  It is admitted Plaintiff was denied access to "cookie files" and electronic data in working paper format. It is denied that such electronic files are public records.

    29.    Regarding the allegations of Paragraph 29 of the Complaint, it is admitted that, as a matter of courtesy and based upon Plaintiff's persistent demands Plaintiff was
allowed to view a computer screen reflecting that no "browser file" information was contained thereon.  It is denied that Plaintiff was allowed "access" to the City's computers.  The remaining factual information alleged in Paragraph 29 of the
Complaint is admitted,  but it is denied that the City's refusal  to  accede  to  Plaintiff's  continuing  demands  to interrupt employees' work to view computer screens is without justification since Plaintiff has no right to the information
in question.

    30.    The allegations of Paragraph 30 of the Complaint are denied.

    31.     The allegations of Paragraph 31 of the Complaint are denied.

    32.    The allegations of Paragraph 32 of the Complaint are denied.

    33.    It is denied that Plaintiff is entitled to access under any hearing procedure to the electronic data to which he has been denied access.

    34.    It is denied that Plaintiff has been refused access to public records maintained by the City. It is denied Plaintiffs are entitled to the injunctive relief sought in
Paragraph 34 of the Complaint.

    35.    It is admitted that at all material times the City's actions were taken under color of law.

    36.    The allegations of Paragraph 36 of the are denied.

    37.    It  is  denied  that  Plaintiff  is  entitled  to declaratory or injunctive relief,  damages,  attorney fees, costs or any other relief in this cause.

    38.    Defendants aver that Plaintiffs' Complaint fails to state a claim upon which relief can be granted,

    39.    It is affirmatively denied that any electronic data to which Plaintiff seeks is a public record and denied that any other citizens or members of the press have either
requested or been allowed access to such information.

    40.    Anything not expressly admitted or denied herein is hereby denied.

    41.    Defendants reserve the right to plead more fully upon motion as  facts become  known during  the  discovery process.

     42.    Defendants aver that they are entitled to costs and attorney fees pursuant to 42 U.S.C. §1968.

  WHEREFORE, having answered fully, Defendants pray that this cause be dismissed with costs and attorney fees taxed to Plaintiff.

Respectfully Submitted,

ROBERT H. WATSON, JR.
JOHN C. DUFFY
Attorneys for Defendants