vs.                                                                     Case No. 2:97-108


JIM SHIPLEY, in his official

capacity as City Manager of

the City of Cookeville,


THE DEPOSITION OF JIM SHIPLEY, a witness, was taken before Phyllis J. Stinson, a Notary Public and Court Reporter within and for the State of Tennessee, at the Law Offices of O'Mara & Johnson, 317 West Spring Street, Cookeville, Tennessee, on Friday, June 25th, 1998, pursuant to Agreement and the Tennessee Rules of Civil Procedure, on behalf of the Plaintiffs in this cause.


P.O. Box 1417, Cookeville, Tennessee 38501

(931) 526-6976



For the Plaintiffs: SAMUEL J. HARRIS, ESQ.


P. O. Box 873

Cookeville, Tennessee 38503

For the Defendants: JOHN C. DUFFY, ESQ.

Watson, Hollow & Reeves, P.L.C.

1700 First Tennessee Plaza

800 South Gay Street

Knoxville, Tennessee 37901


O'Mara & Johnson

317 West Spring Street

Cookeville, Tennessee 38501


It is stipulated and agreed that the deposition of

JIM SHIPLEY, may be taken by agreement at the Law Offices of

O'Mara & Johnson, 317 West Spring Street, Cookeville,

Tennessee, June 26th, 1998, on behalf of the Plaintiffs,

pursuant to the provisions of the Tennessee Rules of Civil


It is further stipulated and agreed that all object-

tions, except as to the form of the question, are reserved to

the time of trial; that formalities as to signature of the

witness, notice and filing are expressly waived by counsel;

that the reporter, being a Notary Public, may swear the



1 I___N___D___E___X__

2 W__I__T__N__E__S__S__:                                                     P__A__G__E__


4 Direct Examination by Mr. Harris:  .............................................. 3

5 E__X__H__I__B__I__T__S__:

6 No. 1 (Faxes Re Public Records Requests)...................................16

7 No. 2 (Letter Dated 8-27-97 to Mr. Davidian from Mr.

8 Shipley).............................................................................................28

9 No. 3 (Late-Filed: Report of City Employee Internet Usage)........32

10 No. 4 (Letter Dated 7-9-97 to Mr. Davidian from Mr. O'Mara)..34

11 No. 5 (City of Cookeville Activity Report)....................................37

12 __________

13 J__I__M__M__Y___D__A__L__E___S__H__I__P__L__E__Y__,

14 the witness herein, having been first duly sworn to state the

15 whole truth, testified as follows, to wit:

16 D__I__R__E__C__T___E__X__A__M__I__N__A__T__I__O__N__

17 B__Y___M__R__.___H__A__R__R__I__S__:

18 Q. Mr. Shipley, would you state your name for the

19 record?

20 A. My full name is Jimmy Dale Shipley.

21 Q. You remember you were sworn under oath this

22 morning.

23 A. Yes.

24 Q. And you have been deposed before. That's correct,

25 isn't it?


1 A. Yes.

2 Q. So I assume, if nothing else, you have watched this

3 morning so you are somewhat familiar with basically what a

4 deposition is.

5 A. Yes.

6 Q. Your current position is City Manager for the City

7 of Cookeville?

8 A. Yes.

9 Q. What are the duties and responsibilities of the

10 City Manager of the City of Cookeville?

11 A. The City Manager is the Chief Executive Officer of

12 the city appointed by the City Council to administrate the

13 day-to-day operations of the city.

14 Q. How long have you been City Manager?

15 A. Since November of '95.

16 Q. Who was the City Manager before you?

17 A. John Gentry.

18 Q. Okay. What did you do before November of '95?

19 A. I was City Clerk/Finance Director for the City of

20 Cookeville.

21 Q. How long had you been City Clerk/Finance Manager?

22 How long did you hold that position?

23 A. Twelve years.

24 Q. Have you had any experience with computers either

25 in your current position or in your past jobs?


1 A. Yes.

2 Q. What experience did you have?

3 A. As a user in the early days on P.C.'s. It was

4 WordPerfect and Lotus. I had some experience on the City's

5 main frame computer for accounting records, payroll, and

6 stuff.

7 Q. Have you ever been on the Internet?

8 A. Yes.

9 Q. How long have you been accessing the Internet?

10 A. About a year.

11 Q. Now, you have worked for the city government, I

12 guess, for over 12 years, basically, from what you have said.

13 Have you ever had any training, education about the First

14 Amendment, or any other constitutional rights?

15 A. No specific training, no.

16 Q. Did you ever go to any kind of training at all for

17 your positions you have held with the City of Cookeville?

18 A. I received that position with the City of

19 Cookeville based on my -I had a B.S. Degree in accounting

20 from Tennessee Tech.

21 Q. But as far as training, you know, on-the-job

22 seminars, continuing education, government employee training

23 seminars, or anything like that, do they do anything like

24 that?

25 A. I have attended a lot of seminars. I do not recall


1 having training on the First Amendment.

2 Q. How do you distinguish who is a member of the

3 press?

4 A. Well, members of the press, until Mr. Davidian came

5 along, were never hard to -I mean they were members of the

6 local press. We knew who they were, or they would identify

7 themselves as being from the National Banner, National

8 Tennessean, et cetera.

9 Q. So if somebody came to Cookeville and said they

10 were writing a book, would you consider them a member of the

11 press?

12 A. If they were writing a book? No.

13 Q. Are you saying that someone who is writing a book

14 does not have First Amendment Freedom of Press rights?

15 A. No, I did not say that.

16 MR. DUFFY: Objection to the extent it calls

17 for a legal conclusion.

18 Q. (By Mr. Harris) In your perception in the role as a

19 government official that may have to make a determination of

20 who is a member of the press, would you officially consider

21 somebody a member of the press if they were writing a book?

22 A. It would never occur to me that they were a member

23 of the press.

24 Q. What if somebody was from the National Broadcast

25 media? Would you, in your capacity as City Manager of the


1 City of Cookeville, consider that person as being a member of

2 the press?

3 A. Yes.

4 Q. Has anybody from the National Broadcast or print

5 media ever visited Cookeville and asked for or done investi-

6 gation of stories during your tenure?

7 A. I am aware -

8 Q. During your tenure.

9 A. My tenure as City Manager or my tenure with the

10 City of Cookeville?

11 Q. Well, let's expand it. Your tenure with the City

12 of Cookeville.

13 A. I remember one occasion CNN visited Cookeville with

14 their mobile trailer. I had no contact with them.

15 Q. Let me ask you this. If, say, Dan Rather from CBS

16 News visited, would he be allowed access to Cookeville's

17 public records?

18 A. Mr. Rather would be granted the same access to

19 public records as any individual or any other member of the

20 press would be.

21 Q. Well now, what if Dan Rather is not a citizen of

22 Tennessee? Would that be some impediment to him accessing

23 public records?

24 A. Under state law, it could be an impediment to Dan

25 Rather, in my opinion.


1 Q. So the City of Cookeville, would they basically

2 card him or ask him to show some identification to show what

3 state he is a resident of or citizen of?

4 A. I wouldn't think Dan Rather would require any

5 identification.

6 Q. Well, don't you need to ask people to show their

7 state citizenship when they ask for public records?

8 A. No.

9 Q. You have certainly asked Geoff Davidian. Didn't

10 you ask Geoff Davidian to show some proof of state citizen-

11 ship?

12 A. Yes, I did.

13 Q. Why did you choose Geoff Davidian to make that

14 request and nobody else?

15 A. Because nobody else other than Geoff Davidian has

16 ever hassled city employees and demanded so much city time.

17 Q. Okay. You are saying Geoff hassled. Has he been

18 rude?

19 A. He has. Until the last several months, he had not

20 really been rude with me. He has -I wouldn't define him as

21 rude. I would define him as being a smart aleck, smart-

22 mouth. He always seemed to assume that we were trying to

23 hide something and always demanding we drop what we do and

24 take care of his demands.

25 Q. When has he ever asked you or anyone you know of to


1 drop something to take care of his demands?

2 A. There were several occasions when I was City Clerk,

3 and when he got his speeding ticket, that he would come into

4 my office and he would want me -he would not say, "Drop what

5 you are doing," but he would start asking questions about, "I

6 need to see this," "I need to see that," and was standing

7 there waiting on the information, waiting to see something.

8 Q. Did you ask him to leave?

9 A. No, I did not.

10 Q. So he just had to know to leave before he would?

11 You wanted him to leave, I assume, so you could get other

12 work done on that particular instance.

13 A.

18 Q. Couldn't you have referred him to somebody else

19 from the City?

20 A. I did refer him.

21 Q. Did he go to that person or did he stay in your

22 office?

23 A. No, on occasion he went to other people.

24 Q. Did he ever, after you told him to go talk to

25 someone else of ask him to leave, did he ever not follow your


1 instructions regarding anything?

2 A. I don't recall him not following my instructions,

3 no.

16 Q. Now, previously you took a deposition on June 5th,

17 1997, and you were asked by Geoff Davidian -

18 MR. DUFFY: What page is this?

19 MR. HARRIS: I guess it's around Page 8.

20 MR. DUFFY: Thank you.

21 Q. (By Mr. Harris) You were asked previously under

22 oath, "Has he ever been rude to you?" You said no. Are you

23 changing that testimony?

24 A. No, I think I said that -I think I just answered

25 that. Lately, in the last year or so, or several months, he


1 has been rude on occasion.

2 Q. How has he been rude in the last several months?

3 A. I mean--how has he been rude? When you encounter

4 people, you think, "Man, that person is being rude."

5 Q. Can you describe what he has done to be rude, in

6 your mind, when he has been rude?

7 A. No, I cannot.

8 Q. So this is just some conclusory (ph) allegation you

9 are throwing out here. You have nothing to support it.

10 A. I wouldn't say it's an allegation. I would just

11 say it is a conclusion and impression of mine.

12 Q. That was your impression, but can you tell me what

13 specifically Geoff Davidian did or said to you that you

14 construed to be rude?

15 A. There was one instance in, I believe, January of

16 '96.

17 Q. Okay. Now, I'm talking about in the last few

18 months. Let's talk about what happened in January of '96.

195 Q. When you said January of '96, did you mean January

6 of '97? Based upon what you have said, would it have been

7 January of '97?

8 A. Yes, it would be '96 or '97. I would have to go

9 back and look.

10 Q. All right. If I represented to you that the

11 original Chancery Court case was in October, November,

12 roughly of '96 -

13 A. Of '96.

14 Q. -then it would be January of '97?

15 A. Then it would be January of '97.

16 Q. You subsequently took this deposition, and at that

17 time you didn't remember that incident that you now consider

18 him being rude. Is that what you're saying?

19 A. Well, he asked me point blank if I had ever thought

20 him to be rude, and I took that as a personal encounter, and

21 at that time I didn't remember any time he had been rude.

22 Q. But you're saying in the last few months he had

23 been rude. What incident are you talking about in the last

24 few months?

25 A. He has -his whole general demeanor every time he


1 comes to City Hall, and I don't really have a lot of personal

2 encounters with him, but I can hear him in the outer office,

3 and, to me, he is rude.

4 Q. How is he rude?

5 A. Once again, it is just an impression. I also have

6 a lot of employees that tell me he is rude.

7 Q. Does he use foul language?

8 A. I have not heard him use foul language, no.

9 Q. Does he yell at people?

10 A. No, he does not yell at people.

11 Q. Previously you described him as being persistent

12 and bothersome to employees. Is that basically what you mean

13 by him being rude?

14 A. No, I think persistent and bothersome does not

15 necessarily mean that he is rude.

16 Q. With what employees have you overheard these

17 conversations, without seeing, that you thought he was being

18 rude?

19 A. Well, with Gail Fowler, my Administrative

20 Assistant, is the main one.

21 Q. What has he said to Gail?

22 A. I don't remember the words.

23 Q. Has he insulted her?

24 A. All I know is Gail has worked for me now for three

25 years, almost three years. I knew her for a couple of years



4 Q. How does he upset her?

5 A. Just with his demeanor, his accusations that she is

6 hiding something. He would ask for a record. We would say,

7 "It doesn't exist." He would say, "Well, I have been denied

8 that record."

9 Q. Would you say that it's just that Geoff Davidian

10 makes Gail Fowler uncomfortable?

11 A. Yes, I think he makes her uncomfortable.

12 Q. He has not threatened her with violence, has he?

13 A. No, he has not.

14 Q. Geoff Davidian has asked in the past. Last summer,

15 for example, he was asking for parking ticket records. Are

16 you aware of anything involving that?

17 A. Yes.

18 Q. Did he ever come to you last July and ask to see

19 the parking ticket records, or did he go to some other

20 employee of the City?

21 A. As best I remember, he went directly to the Police

22 Department.

23 Q. How did you learn of his request?


1 I just know that I did find out about it.

2 Q. Who normally handles -are you familiar with the

3 parking ticket computers and your basic procedures over at, I

4 guess, Cookeville Police Department?

5 A. I wouldn't say I'm familiar with it, no.

6 Q. Do you know, is it not true, that Lieutenant

7 Honeycutt is the individual who seems to be in charge of

8 maintaining the computer?

9 A. Yes.

10 Q. Did you ever have any discussions with Lieutenant

11 Honeycutt regarding Geoff Davidian in any way about any

12 matter whatsoever?

13 A. I remember having a discussion about the 41-page

14 print-out of parking ticket violations that Mr. Davidian

15 received claiming that there was false information. I do

16 remember that.

17 Q. Now, if there is no objection to the way I have

18 done this, I have stapled together a whole bunch of faxes. I

19 don't know how many are here just yet, but this is -

20 MR. O'MARA: Are they faxes or e-mail?

21 MR. HARRIS: Thank you, Mike, or Mr. O'Mara.

22 That is correct. These are for the most part e-mails. I'm

23 not into the whole Internet world yet. Yes, these are, all

24 eight pages. I just stapled them together collectively.

25 This is a copy you all can look at (indicating). I would


1 like to make this Exhibit 1, if there is no problem with me

2 doing it this way.

3 MR. O'MARA: First off, let's clear up

4 something before you start trying to make it a record. Let's

5 make sure that we understand that whatever is written on the

6 bottom was not on the original document. That's something

7 you put on there -

8 MR. HARRIS: This is something -

9 MR. O'MARA: - when you made an exhibit.

10 MR. HARRIS: That is correct.

11 MR. O'MARA: I'm sorry, this is Mr. Duffy's

12 deposition.

13 MR. HARRIS: Mr. Duffy, I apologize. I can

14 see Mr. O'Mara direct in my line of vision, and therefore, I

15 looked over at him.

16 MR. DUFFY: That's absolutely fine.

17 (Whereupon, Deposition Exhibit No. 1 was

18 marked for identification by the reporter, attached at the

19 end of the original transcript.)

20 MR. HARRIS: It does have Exhibit 8 marked

21 that was not on these copies, but I had grouped all of these

22 e-mails together. As we talk about each one, for the most

23 part they are correspondences back and forth between Jim

24 Shipley and Geoff Davidian. I thought as we would go over

25 these, it would be easier to make it just one exhibit.


1 MR. O'MARA: May I make a suggestion that the

2 pages be numbered somehow?

3 MR. HARRIS: Off the record.

4 (Discussion off the record.)

5 MR. HARRIS: We can go back on the record.

6 Q. (By Mr. Harris) Sometime around October 1st, 1997,

7 Geoff Davidian indicated to you that he would be coming, if

8 you want to look on Page 2 of Exhibit 1. Did you receive

9 that, Page 2 of Exhibit 1? Do you recall that e-mail

10 received from Geoff Davidian and sent to you?

11 A. On Page 2?

12 Q. Yes.

13 A. It looks like the e-mail that I -it looks like an

14 e-mail that I have received from him, yes.

15 Q. Do you recall Geoff saying that he would be in town

16 on Friday, October 3rd, 1997?

17 A. Well, it's right here in the e-mail, yes.

18 Q. I know. Do you remember that event?

19 A. Yes.

20 Q. Is it not true that Mr. Davidian told you he wanted

21 to look at parking ticket data?

22 A. Yes.

23 Q. Now, on Page 1, at the very top of Page 1 of

24 Exhibit No. 1, there is a response in Paragraph 1, an e-mail

25 dated Thursday, 2 October, 1997. Is that the e-mail that you


1 wrote?

2 A. It looks like it, yes.

3 Q. Is there any reason or anything on here that

4 indicates maybe it's not yours?

5 A. No.

6 Q. In Paragraph 1, did you not indicate that

7 Lieutenant Honeycutt was scheduled to be out of town on

8 October 23rd?

9 A. Yes, I did.

10 Q. Why did you think Lieutenant Honeycutt and Chief

11 Benson were going to be out of town that day?

12 A. Because we had asked him if he was going to be

13 available for Mr. Davidian on that day and he said he had

14 already scheduled to be off, out of town that day.

15 Q. Did he, in fact, go out of town that day?

16 A. He did not go out of town.

17 Q. Lieutenant Honeycutt wasn't scheduled to be at any

18 kind of training for his position?

19 A. No, he was taking the day off.

20 Q. But, in fact, he changed his mind, apparently, and

21 did not take the day off.

22 A. Evidently. I do know that he did work that day.

23 Q. But at this time you told Geoff Davidian in this

24 letter, in this e-mail dated October 2nd at the top of Page 1

25 of Exhibit 1, you told Geoff Davidian that there would not be


1 anybody available for computer access to the public records;

2 is that correct?

3 A. That's what I told him, yes, based on the

4 information I had at that time.

5 Q. Now, on October 1st, on Page 2, the e-mail from

6 Geoff Davidian to you, he also asked for access to cookie

7 files; is that correct?

8 A. On Page 2 he does ask for access to computer files,

9 yes.

10 Q. Is that the first time you have ever received a

11 request to see the cookie files, or do you remember?

12 A. I don't remember.

13 MR. DUFFY: A request from Davidian, or

14 anyone?

15 MR. HARRIS: Well, let's clarify that.

16 Q. (By Mr. Harris) Is that the first time you

17 received it from anyone, that you recall?

18 A. I do know that I have never had the request from

19 anyone else about cookie files, but I don't know that this

20 was the first time from Mr. Davidian or not.

21 Q. When you say anyone else, are you not aware that

22 Mike Hodges and Eli Davidian did, although probably I would

23 assume for this question, you do associate Mike Hodges and

24 Eli Davidian with the Putnam Pit; is that correct?

25 A. Correct.


1 Q. Are you aware that they also asked for the same

2 things, or do you just not know?

3 A. I'm aware that they asked for them, but I'm

4 thinking they did it after Mr. Davidian's first request,

5 whenever that was.

6 Q. I was just asking for your recollection. Okay. On

7 Page 8 of Exhibit No. 1 there is an e-mail, and it's the only

8 e-mail on that page. It says it's from Jim Shipley to the

9 Putnam Pit link on-line dot net. Do you recall writing this

10 e-mail?

11 A. Yes, I do.

12 Q. Now, Paragraph 1 says, "O'Mara's records are not

13 available in City Hall." If Mike O'Mara has city records,

14 would they still be available to a person, that you know of?

15 Would you direct them to another department or to another

16 city employee or agent who would be a custodian of those

17 records?

18 A. Yes, I would.

19 Q. Likewise, in Paragraph 4 that would be the same

20 thing for Housing Authority records.

21 A. The Housing Authority operates under a separate

22 board. The City Administration of the City of Cookeville has

23 no authority over the Housing Authority.

24 Q. And that would include no authority over their

25 records.


1 A. Correct.

2 Q. Now, Paragraph 6. Now, this e-mail on Page 8 is

3 dated 13 August, 1997. It deals with access to cookie files.

4 Were you responding to some written request of Geoff

5 Davidian?

6 A. Yes.

7 Q. Would that be the request on Page 7 of Exhibit 1?

8 A. I think so, yes.

9 Q. Okay. On Page 8, Paragraph 6, and it is entitled

10 Access to Cookie Files, the first sentence after the colon

11 says, "The city's computer is scheduled to be down most of

12 tomorrow, August 14th," or 8-14, which I assume means August

13 14th, correct?

14 A. Correct.

15 Q. Why did you put that remark in in response to Geoff

16 Davidian's request for records? Is it because he was going

17 to be in town that day?

18 A. It was in response to Page 7, the e-mail from

19 Geoffrey Davidian that says in the first paragraph, "I will

20 be in Cookeville on Thursday or Friday and I will alert you

21 to my intention to review the following city records at that

22 time."

23 Q. So you told him that on Thursday, which would be -

24 A. Which would be the 14th.


1 Q. - that the city's computer was scheduled to be

2 down, correct?

3 A. That was what I was told.

4 Q. Do you know why the city's computer was scheduled

5 to be down?

6 A. I do not remember.

7 Q. And then you state in the next sentence on Page 8

8 of Exhibit 1, Paragraph 6, "Our computer manager is scheduled

9 to be on vacation Friday, therefore, we will be unable to

10 accommodate this request on this visit."

11 A. That's a fact. I thought giving Mr. Davidian this

12 information might save him the trip and he might want to

13 reschedule.

14 Q. This is very similar in the sense that -the

15 Computer Manager, is that Steve Corder?

16 A. Yes.

17 Q. So when Mr. Davidian asked to come in on a Friday

18 in August, the Computer Manager is on vacation, and likewise,

19 in October on another Friday the computer personnel for the

20 parking ticket records, Lieutenant Honeycutt, was not going

21 to be there. Is that just coincidence? That is not part of

22 any planned evasion, some tactic to delay and make it diffi-

23 cult for Geoff Davidian to get those?

24 A. No, it is not. No, it is not.

25 Q. You then write, "You should also be advised that we


1 will be charging you for any employee's time spent on your

2 record requests that exceed one hour research time." By what

3 authority do you indicate you would be charging him that

4 money?

5 A. On the authority of the City Manager.

6 Q. No ordinance had been passed at that time?

7 A. Not at that time.

8 Q. Had you ever charged anybody else for any records

9 requests that exceeded one hour research time on that day,

10 August 13th, 1997, the date that you wrote this e-mail? Had

11 you ever charged anyone prior to that?

12 A. There were plenty of occasions when I was City

13 Clerk/Finance Director that I would make one copy of a tax

14 receipt for a taxpayer and not charge them anything. There

15 were several occasions when I was in that office that someone

16 would want several copies made, and we would charge them 25

17 cents per copy. It was -I think it's just common sense. If

18 you make one copy for somebody, you just do it, but if it

19 starts to be extensive, then you start trying to recover the

20 cost.

21 Q. Now, in answer to my question, prior to August

22 13th, 1997, had you ever charged anyone for research time

23 regarding a public records request?

24 A. No, I never had, because I had never had any

25 requests that required that kind of research time.


1 Q. Okay. Now, in response to access to cookie files,

2 you go on to say on Page 8 of Exhibit 1, Paragraph 6, "We

3 estimate the process for this request will take 20 to 30

4 hours of our Computer Manager's time." When you say "we",

5 who are you referring to?

6 A. Well, I'll just let that "we" refer to me and the

7 Computer Manager.

8 Q. Had you talked to Steve Corder?

9 A. I said, "Mr. Corder, how long will it take you to

10 do this?" I had no idea how long it would take. He said to

11 do all of the city's computers, 20 to 30 hours.

12 Q. Just to look at their cookie files?

13 A. That's what he told me.

14 Q. So you relied -you were writing this in reliance

15 upon what Steve Corder estimated.

16 A. Yes, sir, that's what I was doing.

17 Q. Now, the next sentence follows, "Our Computer

18 Manager makes $13.66 per hour; therefore, you will be

19 expected to pay to the City of Cookeville in advance..." By

20 what authority under the Tennessee Open Records law do you

21 have to ask for an advance deposit?

22 MR. DUFFY: Objection. It calls for a legal

23 conclusion.

24 THE WITNESS: I don't know that I have any

25 authority under that Tennessee Open Records law. I think I


1 do have the authority as City Manager to require payment for

2 extensive research and I think the way -and I was told it

3 takes 20 to 30 hours. I took exactly what that employee made

4 per hour, applied a 130 percent fringe benefit to that

5 payment, and asked Mr. Davidian to pay it in advance, and if

6 it had taken only ten hours to do it, then Mr. Davidian would

7 have been refunded.

8 Q. But you required a $327.60 deposit to do research.

9 Well, do you have any idea how Mr. Corder came to the idea

10 that it would take 20 to 30 hours?

11 A. No, I do not.

12 Q. When you wrote this, you just relied on Mr. Corder.

13 A. Yes, I did.

14 Q. What did you tell Mr. Corder specifically that Mr.

15 Davidian wanted?

16 A. I don't remember what I told him. I asked him

17 specifically. I had to know, from our Computer Manager, what

18 his estimate was of the time required to look up the cookie

19 files per the request.

20 Q. Now, have you ever gone into Windows 95, yourself,

21 and looked to see, even since this lawsuit, looked to see

22 where cookies are stored?

23 A. Yes, I have.

24 Q. How long would it take you to access Windows,

25 access your C Drive, call up Windows, and then call up your


1 cookie file?

2 A. No more than a minute, two minutes.

3 Q. So this 20 hours, if it took a minute -I mean--how

4 many computers does the city have that access the Internet?

5 A. Oh, we have about 35.

6 Q. So it could conceivably have been done in an hour.

7 A. Well, I didn't know that at that time. I might

8 add, too, you know, it doesn't take long to look them up, but

9 I don't know how long he wanted to spend looking at those

10 files that were in the cookies, looking at the information

11 that was in there.

12 Q. No, you just asked for research time at that point.

13 A. Well, research time is the time for that employee

14 to go with Mr. Davidian to each employee -I mean each

15 employee's computer -pull up the cookie files, let Mr.

16 Davidian get his information, and go to the next one. I had

17 no idea.

18 Q. Why throw out 20 hours?

19 A. I threw out 20 hours because that's what my

20 Computer Manager told me it would take.

21 Q. Are you telling me Steve Corder didn't realize that

22 it only takes a minute to look at one computer?

23 A. I wouldn't attempt to tell you what Mr. Corder

24 realized or didn't realize.

25 Q. Well, I'm trying to figure out what you would have


1 told him. He is pretty knowledgeable about computers, isn't

2 he?

3 A. Fairly. Yes, he is knowledge.

4 Q. So a lot of his decision was dependent upon what

5 you told him exactly that some customer request for public

6 records of the city wanted.

7 A. I've already stated that I don't remember exactly

8 what my words were to him.

9 Q. Had you ever charged anybody else prior to this?

10 Had you ever charged anybody else 130 percent to cover

11 benefits?

12 A. I don't ever recall having to charge anybody for

13 the employee's time, because there was never that much demand

14 on an employee's time to look something up or do something.

15 Q. Is there any reason that you believed you had to

16 charge the deposit in advance to Geoff Davidian?

17 A. Well, these were not the first encounters that we

18 had with Mr. Davidian and I felt it prudent to go ahead and

19 get the money up front, and then if it didn't take 20 to 30

20 hours, he would be refunded the difference.

21 Q. Well, why was it prudent to the get the money in

22 advance? I mean, had Geoff Davidian ever not paid you?

23 A. I don't know that Mr. Davidian had not ever paid

24 us. I do know that Mr. Davidian made numerous requests for

25 records and would not come back and pick them up.


1 Q. Approximately two weeks after the request for the

2 $327.60 deposit, you wrote this letter.

3 MR. O'MARA: First off, let's clear this up.

4 First off, let's clear this up. Mr. Shipley responded on

5 August 13th, 1997, to Mr. Davidian's transmittal, and this

6 letter is dated August 27th. By my calculations, that is

7 precisely two weeks later.

8 MR. HARRIS: I thought that's what I said.

9 MR. O'MARA: I thought you said three.

10 MR. HARRIS: Off the record.

11 (Discussion off the record.)

12 (Whereupon, Deposition Exhibit No. 2 was

13 marked for identification by the reporter, attached at the

14 end of the original transcript.)

15 Q. (By Mr. Harris) Mr. Shipley, you have what has now

16 been marked as Exhibit No. 2.

17 A. Uh-huh.

18 Q. Did you write this letter?

19 A. Yes, I did.

20 Q. And that is your signature at the bottom.

21 A. Yes.

22 Q. Or a facsimile to this copy. Did Geoff Davidian

23 ever pay you the deposit?

24 A. No, he did not.

25 Q. Did you go ahead and do the research on what cookie


1 files were?

2 A. Yes, we did.

3 Q. Without the deposit?

4 A. Well, we researched what cookie files were, not our

5 separate cookie files in all of our computers. That's two

6 different things.

7 Q. Who did the research on what the cookie files were?

8 A. My Administrative Assistant.

9 Q. Gail Fowler?

10 A. Gail Fowler did some research. That's the only

11 person I know of for sure that did.

12 Q. Steve Corder did not?

13 A. He probably did, but I don't know that for a fact.

14 Q. Do you remember or know whether either you or Gail

15 Fowler ever asked Steve Corder, "What's a cookie?"

16 A. I don't know that I did, and I certainly don't know

17 what Gail Fowler asked him.

18 Q. So in Paragraph 2 of Exhibit No. 2 your research

19 revealed that cookies files are not really the property of

20 the City of Cookeville. How did you come to that conclusion?


1 is placed on the receiving computer by the web server."

2 Q. Certain web sites when visited by somebody leave

3 cookies on a person's computer. Are you familiar with that

4 concept?

5 A. I know that now. I didn't at the time.

6 Q. Well, I think that goes for most of us, and I will

7 even put this on the record. We all probably didn't want to

8 hear the word, but if somebody used the Internet to visit a

9 web site and that particular web site left cookies such as,

10 say, the New York Times, then the New York Times would leave

11 a cookie on that computer; is that correct? Have you ever

12 experimented with that, to your knowledge?

13 A. I have never experimented with it. To the best of

14 my knowledge, it might or might not.

15 Q. Well, do you know whether cookies can get on

16 somebody's computer without them visiting a particular web

17 site?

18 Q. Do city employees ever use the Internet access that

19 the City of Cookeville has for personal use?

20 A. I'm sure they do.

21 Q. But that would be against, not public policy, but

22 the City of Cookeville's stated policy, correct?

23 A. I don't think our personnel manual specifically

24 states that an employee shall not do any personal visit on

25 the Internet, or make personal visits on the Internet.


1 Q. I have got what appears to be a document in front

2 of me and I wasn't necessarily going to make it an exhibit,

3 but do you recall or know whether there is not a Section

4 19.02 of the City Ordinance that says, "City-owned personal

5 computers or laptops made available for work away from the

6 office are to be used exclusively for business purposes

7 during the work day. Permission must be obtained from your

8 supervisor to use personal computers during non-business

9 hours. Any and all records stored in personal computers are

10 the property of the City and as such, are subject to

11 inspection at any time." Is that not the City of

12 Cookeville's computer policy, computer and software policy?

13 A. That sounds like a section from our Personnel

14 Policy and Procedures Manual, yes.

15 Q. So when an employee uses a computer for the City of

16 Cookeville, it is subject to inspection by the supervisor of

17 the chain of command.

18 A. Yes, sure.

19 Q. Have you ever conducted inspections of anybody's

20 computers?

21 A. No, I have not.

22 Q. Has anybody at the City of Cookeville ever con-

23 ducted inspections of use of the Internet by any city

24 employee?

25 A. Yes.


1 Q. Who did the investigation of that, of the inspec-

2 tion?

3 A. The inspection was done by Steve Corder, Computer

4 Operations Manager.

5 Q. Who are the individuals that were -

6 A. I don't know who all the individuals were that he

7 looked at, the computers that he looked at. I don't know all

8 of them.

9 Q. Did he prepare a report of what he found?

10 A. No, he did not.

11 Q. Did he prepare any documentation of his

12 investigation and inspection?

13 A. He printed a report of that inspection.

14 Q. Would it be possible for you to provide that to me

15 as a late-filed exhibit? I think we are on No. 3.

16 A. If that exists. I don't know that it still exists.

17 I mean I don't know what he did with it.

18 Q. Did he find and let you know of any improper access

19 on the Internet?

20 A. Yes, he did.

21 Q. What type of improper access?

22 A. He found one employee that was spending an

23 extensive amount of time on the Internet.

24 Q. Did he tell you where they were -when I say

25 "where", I know it's not a physical location, but did he tell


1 you what web site this employee was visiting?

2 A. He didn't tell me. He showed me the report and

3 explained that those numbers and letters that were on that

4 report -that they were specific sites on the Internet.

5 Q. But he never said anything about somebody might be

6 accessing pornography?

7 A. He did indicate that this person had spent a lot of

8 time on pornographic sites, yes.

9 Q. Well, I'm going to skip a whole bunch of questions

10 that I don't want to ask on that. What about Brad Chambers?

11 Have you ever accessed the Putnam Pit and seen where Mr.

12 Davidian and the Putnam Pit put up an article about Brad

13 Chambers visiting some site about baseball cards?

14 A. I don't recall seeing it on the Putnam Pit. I

15 believe Brad Pit did advertise on the Internet. He did have

16 baseball cards for sale, yes.

17 Q. Do you know if he was using the City of

18 Cookeville's Internet access to access the Internet for

19 personal purposes?

20 A. I think that there is no doubt that was for

21 personal purposes. As City Manager, I had no problem with

22 it. It doesn't cost us any more for him to advertise the

23 availability of baseball cards. It might not be entirely the

24 right thing to do in some people's minds, but personally, I

25 didn't have a problem with it.


1 Q. Regardless of whether there is a problem, it does

2 seem to contradict computer and software policy, which says -

3 MR. O'MARA: Why don't you let him look at it?

4 MR. HARRIS: I thought he knew the computer

5 and software policy by heart.

6 MR. O'MARA: Let me show you the book.

7 MR. HARRIS: That's okay, Mike, I said that in

8 humor.

14 MR. HARRIS: Okay.

15 (Whereupon, Deposition Exhibit No. 4 was

16 marked for identification by the reporter, attached at the

17 end of the original transcript.)

18 Q. (By Mr. Harris) Now, you have in front of you

19 Exhibit No. 4. This is a letter to Geoffrey Davidian and

20 it's cc'd on Page 2 of Exhibit 4 Jim Shipley. Did you

21 actually receive this copy?

22 A. You know, I think I did. I don't know for a fact

23 that this is the exact copy of that letter, but yes, it looks

24 familiar. To the best of my knowledge, it is.

25 Q. In Paragraph 1 it states -and this letter is


1 written by T. Michael O'Mara. "If the records are kept

2 electronically, you will have a chance to look at the

3 information, as it is kept, on a computer screen." When

4 Geoff Davidian went to see Lieutenant Honeycutt about the

5 parking tickets, wouldn't it have been easier to allow him to

6 download that electronically, rather than sitting there going

7 through the screen one by one?

8 A. I don't know whether it would have easier or not.

9 Q. But as far as you know, this was your impression as

10 to what Mike O'Mara had written Geoff Davidian about access-

11 ing the City's various computer records.

12 A. Well, this letter says, "If the records are kept

13 electronically, you will have a chance to look at the

14 information, as it is kept, on a computer screen." That

15 means he will be able to look at the computer screen. At

16 least, that's the way I interpret it.

17 "If you desire a copy of printed material, a

18 photocopy will be made. If you desire a copy of information

19 stored electronically, a printout of the stored information

20 will be made for you." I don't think that says that he will

21 be allowed to sit down at our computers.

22 Q. Well, I never asked you if it says he will be

23 allowed to sit down. Basically, this whole letter is your

24 understanding as of July 9th, 1997, that this is what the

25 City Attorney, T. Michael O'Mara, told Geoff Davidian was the


1 City's policy regarding the very subject matter of this

2 letter, which is access to public records, in particular,

3 computer records. In other words, I guess what I'm simply

4 asking -you have got a copy of this, correct?

5 A. Correct.

6 Q. And as far as you know, this was sent to Geoff

7 Davidian, correct?

8 A. As far as I know.

9 Q. On Exhibit No. 1, Page 1, the first e-mail that is

10 from you to Geoff Davidian, in Paragraph 1 it is referring to

11 parking tickets, correct, the parking ticket data, records,

12 and such; is that correct?

13 A. By Paragraph 1 you mean it starts, "Lt. Honeycutt

14 and Chief Benson are scheduled to be out of town..."

15 Q. Right.

16 A. That is referring to the Police Department's

17 computerized parking violation data.

18 Q. Because the last sentence of that Paragraph 1 of

19 October 2nd e-mail from you to Geoff Davidian says, "Ms.

20 Fowler has a copy of the data you reviewed in July, if you

21 wish to see it again."

22 A. Correct.

23 Q. Why does Ms. Fowler have a copy of the data?

24 A. Because Ms. Fowler tries to keep a copy of

25 everything he reviews.


1 Q. Just Geoff Davidian, or everybody else? She keeps

2 a copy of everything?

3 A. I know she keeps a copy of some other times that we

4 have charged attorneys for copies, or whatever, for records,

5 but we like to keep a copy of everything we provide Mr.

6 Davidian, because he has a habit of coming back and asking

7 for it again.

8 Q. Well, do you keep a copy of what Dyana Bagby or

9 Mary Jo Denton, or any other reporter in Cookeville, makes a

10 public records request for?

11 A. I don't know that they have ever made a public

12 records request.

13 Q. Have you ever sent information to Becky Hammond?

14 A. I'm sure I have. I have faxed press releases.

15 Q. You have faxed press releases. Have you ever faxed

16 press releases to Geoff Davidian?

17 A. Not that I know of.

18 (Whereupon, Deposition Exhibit No. 5 was

19 marked for identification by the reporter, attached at the

20 end of the original transcript.)

21 Q. (By Mr. Harris) You have got a copy of what has now

22 been marked over here as Exhibit 5 and at the top it's dated

23 9-4-97, City of Cookeville. It has some phone number and it

24 says it's entitled Activity Report. What is this? Do you

25 know what this document is?


1 A. This is an activity report on faxes from the City

2 of Cookeville.

3 Q. Do you know -9-4-97 was the date of a City Council

4 meeting. I will represent that to you anyway. Do you know

5 what these faxes were for?

6 A. I have no idea.

7 Q. So when I go down the line, especially in the

8 fourth column under Connection ID, it says what I assume to

9 be an abbreviation for Herald-Citizen, and WHUB, WGSQ, the

10 Putnam Star, News 28, Cable Channel 6, and so on. Do you see

11 that? Were these faxes made to these news stations? Do you

12 know what these faxes were for?

13 A. No, I do not.

14 Q. Do you ever send press releases to the Herald-

15 Citizen or WHUB or the Putnam Star?

16 A. Sure.

17 Q. But you have never sent any to the Putnam Pit, have

18 you?

19 A. Not that I know of.

20 Q. Well, how do you distinguish between who gets a

21 copy of a press release and who doesn't?

22 A. These are all local news media.

23 Q. Does the Putnam Pit not cover local news?

24 A. I don't know what the Putnam Pit covers.

25 Q. You have never read the Putnam Pit?


1 A. Well, I know what the Putnam Pit covers, but I have

2 not read the Putnam Pit in a long time.

3 Q. When is the last time you read the Putnam Pit?

4 A. It's been several months.

5 Q. What about back in September of '97? Did you read

6 anything back then? Do you recall?

7 A. I don't recall.

8 Q. You don't recall. But would you say, in September

9 of '97, that you knew that the Putnam Pit was a news

10 organization that was covering local news?

11 A. That it was a news organization?

12 Q. Sure.

13 A. In September of '97 I knew that the Putnam Pit was

14 a legal entity in Tennessee.

15 Q. Did you know what type of business it generally

16 carried out, what type of activity?

17 A. I think it called itself the Watch Dog for Putnam

18 County.

19 Q. You knew the Putnam Pit considered itself the

20 press, correct?

21 A. Yes, I knew that the Putnam Pit considered itself

22 the press.

23 Q. But you didn't consider it the press. Is that true

24 or not?

25 A. No, I didn't consider it the press.


1 Q. Well, I'm having a little trouble. Could you

2 define who is a member of the press and who isn't? I don't

3 mean legally. I want to know how Jim Shipley and the City of

4 Cookeville decides who gets a press release and who doesn't.

5 A. Let me answer it this way.

6 Q. Sure.

7 A. I consider the Nashville Tennessean and the

8 Knoxville Sentinel, the Chatanooga Free Press, or whatever

9 they have, The Atlanta Constitution all members of the media,

10 but I did not send them any press releases on that day or any

11 other day.

12 Q. But those are news organizations in other cities

13 and don't necessarily write on -did you distinguish because

14 the Putnam Pit basically carries on a lot of its activities

15 out in Beverly Hills, California?

16 A. I don't know what I distinguished. No. 1, I don't

17 know that I even made these faxes, and No. 2, it just n ever

18 occurred to me.

19 Q. Do you know whether Geoff Davidian asked you or any

20 other employee of the City of Cookeville to have access to

21 press releases?

22 A. Yes, I think he has asked for access to press

23 releases.

24 Q. Did he do it before September?

25 A. I have no idea. I don't remember.


1 Q. I mean, Geoff Davidian has supposedly bothered you

2 all this time for information and everything, and yet,

3 doesn't it seem likely that he would have asked long before

4 9-4-97.

5 MR. DUFFY: Object to the form of the ques-

6 tion.

7 MR. HARRIS: Okay. I'll strike it. You don't

8 have to answer that one.

9 Q. (By Mr. Harris) At one time you told Geoff that

10 you didn't have to give him information because he wasn't a

11 member of the press, and you relied on a definition of a

12 newspaper of general circulation; is that right?

13 A. That's correct.

14 Q. Are you telling me that Channel 28, which is listed

15 here, could not get access to public records? Is Channel 28

16 a newspaper of general circulation?

17 A. They never held themselves out to be a newspaper.

18 Q. Well, you told Geoff he couldn't get it because he

19 is not a member of the press, as you defined it. I'm trying

20 to get some idea how do you define who is a member of the

21 press? You told me who you don't think is. You have told me

22 Chattanooga is a member of the press, correct?

23 A. Uh-huh.

24 Q. You have told me the National Banner -well, if they

25 were in existence. You told me these out-of-town newspapers


1 are members of the press.

2 A. Uh-huh.

3 Q. Can you articulate why the Putnam Pit was not

4 considered a member of the press?

5 A. I cannot articulate what my reasoning was.

6 Q. That's what I want.

7 A. All right. He had one individual that was printing

8 a paper not of general circulation. He was not charging for

9 it. What if all kinds of people decided they were going to

10 be the press? In the first place, I don't think the press is

11 entitled to any more than an individual is, but Mr. Davidian

12 kept pointing to -he said he was not a resident of the State

13 of Tennessee, but our charter mentioned the press would have

14 access to our records. So how do you define the press, or in

15 this case, he said a newspaper?

16 So, to me, it was the proper thing to do, to try

17 to find some legal definition of just what is a newspaper.

18 So I relied on the TBA definition of the newspaper and, in my

19 opinion, he did not fit that definition.

20 Q. Well, what is a newspaper of general circulation?

21 Are you telling me--it's part of the print media, isn't it?

22 You knew it was part of the print media, right?

23 A. No, I didn't know. What is the print media? I

24 mean, I don't know. I mean, how do you define the print

25 media?


1 Q. Well, as opposed to -you didn't think he was part

2 of the broadcast. He was not using the airways, either T.V.

3 or radio.

4 A. Well, I mean if somebody publishes a newsletter,

5 does that make them part of the news media? I mean, I don't

6 know.

7 Q. Well, I would answer, but my answer would be

8 valueless in this deposition. Yes, I think, if somebody

9 publishes something in print and writes it. Let me ask you

10 this. If somebody writes something, or you sit down and you

11 write the tale of your life as City Manager of the City of

12 Cookeville, do you think you are entitled to First Amendment

13 Freedom of Press protection for that writing?

14 A. Sure, I do.

15 Q. But you don't publish on a weekly basis. Once

16 again -

17 A. No, but I don't claim to be a newspaper or member

18 of the media.

19 Q. Let me ask you this. What do you think -you

20 haven't read it recently, but what is your general opinion of

21 what is written about in the Putnam Pit?

22 A. I haven't read it recently. What is my general

23 opinion of what is in the Putnam Pit? I think the stories

24 are slanted. They are Mr. Davidian's opinion, I think.

25 That's my opinion, okay?


1 Q. What do you think of his opinion? Do you like his

2 opinion?

3 A. I usually don't care for his opinion, no.

4 Q. You don't like it, do you?

5 A. I usually don't care for his opinion. That's my

6 answer.

7 Q. "I don't care" could mean many things. I want to

8 know whether you like it or dislike it.

9 A. I really don't care what he puts in the Putnam Pit.

10 I really don't.

11 Q. Did you like it when he talked about Shipley

12 Speaks?

13 A. Of course, I didn't like it.

14 Q. What about Geoff, personally?

15 A. I think Geoff is a likeable enough guy.

16 Q. Has the Herald-Citizen ever come to you and asked,

17 or any other employee of the City of Cookeville, and asked to

18 see public records?

19 A. I can't remember a specific time. I'm sure they

20 have at some point.

21 Q. Do you think they have done that in the last year?

22 A. Not to my knowledge, they have not. Well, let me

23 correct that. I do know the Herald-Citizen reporter goes to

24 the Police Department to look at arrest records every day.

25 Q. Does he have to fill out a record, he or she?


1 A. I don't know. I don't know.

2 Q. Is it fair to say that when we look through all of

3 the records for the past year for records requests, we won't

4 find one for somebody from the Herald-Citizen? Do you know

5 that there are any?

6 A. I don't know that there are any, no.

7 Q. And Becky Hammond, she has called you up and asked

8 for information and records. You have sent that over to her

9 by fax, correct?

10 A. Are you talking about a specific incident?

11 Q. No, just in general. Has she ever asked for

12 information that you sent over by fax?

13 A. I always try to provide any information anybody

14 needs.

15 Q. Don't you make her fill out records requests?

16 A. I don't know if she had been required to fill out a

17 records request or not.

18 Q. On the documents shown Geoff Davidian this morning

19 in his deposition, did you have a chance to look at that?

20 A. No.

21 Q. Do you have that here?

22 MR. DUFFY: What is it you want?

23 MR. HARRIS: I want to see the whole thing.

24 MR. O'MARA: Of what?

25 MR. DUFFY: Of records request documents?


1 MR. HARRIS: Uh-huh. Did the ones you made

2 copies of get back in these files?

3 MR. O'MARA: Everything is back where it

4 belongs. That was Exhibit B, or whatever it is.

5 MR. HARRIS: Can you show me? This is Exhibit

6 B (indicating.

7 MR. O'MARA: No, it's not Exhibit anything to

8 this deposition yet.

9 MR. HARRIS: No, this is--

10 MR. O'MARA: These are responses, documents

11 that were prepared by the City of Cookeville in response to--

12 MR. HARRIS: If I may finish first, this is my

13 deposition and I would like to at least finish the sentence.

14 This is Exhibit B from this morning; is that correct?

15 MR. O'MARA: No, it's not.

16 MR. HARRIS: Okay. That's what I wanted to

17 ask.

18 MR. O'MARA: That's what I said.

19 MR. HARRIS: Let me finish the question.

20 Q. (By mr. Harris) These are the documents that you

21 provided to the Request for Documents; is that not correct?

22 MR. O'MARA: If you have seen them.

23 THE WITNESS: What's the question? I'm sorry.

24 Q. (By Mr. Harris) We asked you and the City of

25 Cookeville, and you are named in your official capacity, to


1 provide us with all of the records requests made, public

2 records requests. Is this everything, or is there some other

3 file that would have other records requests?

4 A. I'm not aware of any other files that would have

5 any other records requests.

6 Q. Is there anything in there from the Putnam Star or

7 Herald-Citizen where some reporter was supposed to fill out

8 paperwork.

9 A. I take it, you want me to look through all of these

10 and tell you that.

11 MR. O'MARA: That's what he wants.

12 MR. HARRIS: That is correct.

13 THE WITNESS: Here is a request from Jeff Jones

14 requesting on behalf of American Way Real Estate for public

15 records.

16 Q. (By Mr. Harris) Jeff Jones is not a member. Do

17 you consider him a member of the press?

18 A. No. You just want to know from any other members

19 of the press.

20 Q. Or anybody. That's fine.

21 A. Okay. He is somebody. I'm sorry. I didn't mean -

22 here is one from Thorurness. Here is one from Henry Fincher.

23 Q. Mr. Fincher is not a member of the press, is he?

24 A. To my knowledge, he is not. Angela, D-i-e-h-l, I

25 guess. Mr. Fincher was charged four hours labor, ten fifty


1 per hour, plus 177 pages at 20 cents a page.

2 Q. Did you charge Mr. Fincher in advance for the

3 deposit?

4 A. I don't know.

5 Q. That wasn't some setup to create some bogus record

6 that you have charged a few people money, was it?

7 A. No, it was not. Here is a request to see a

8 personnel file from Mark Loftis.

9 Q. Do you know who Mark Loftis is?

10 A. He is a police officer. We have a police officer

11 named Mark Loftis.

12 Q. Do you know if there are any reporters in the area

13 that go by the name Mark Loftis?

14 A. I'm not aware of any. Here is a request from Jeff

15 Beard, Chattanooga, Tennessee. John Nesbitt.

16 Q. Do you know if he is a reporter for the Herald-

17 Citizen or not?

18 A. I do not know that he is a reporter, no. Here is a

19 request from Dan Rader.

20 Q. Do you know who Dan Rader is?

21 A. Yes.

22 Q. Who is he?

23 A. He is a local attorney.

24 Q. Is there anything on that document to tell whether

25 he was acting in a capacity of the press when he made this


1 request?

2 A. No, there is not.

3 Q. So he could have been, or you doubt that. Is it

4 likely that Mr. Rader was seeking access to this information

5 in his capacity as a member of the press?

6 A. It's not likely. Here is a request from Bill

7 Trentle, T-r-e-n-d-l-e.

8 Q. Well, if it helps you, you can continue looking,

9 because I want to make sure it's thorough. You have looked

10 through a number of documents; is that correct?

11 A. That's correct.

12 Q. I would say more than 20. Have you found any

13 records requests that were completed or filled out by anybody

14 who was an employee of the press, or indicated they were an

15 employed by the Herald-Citizen, the Putnam Star, or any other

16 news media?

17 A. No, I have not.

18 Q. Do you want to continue looking?

19 A. No.

20 Q. Do you think you will find any?

21 A. There is one from the Putnam Morning Light.

22 Q. Can I see that document, please?

23 A. (Indicating).

24 Q. This document that you have shown me, is it not

25 correct that it was by Putnam Morning Light, Tanya Moody, and


1 the date of the request was 17 November,1995?

2 A. That's what is on the form, 17 November of '95.

3 Q. And you had not yet passed the ordinance, obviously

4 that was passed back in September of '97; is that correct?

5 Obviously, from the date?

6 A. Obviously.

7 Q. So that is a relatively ancient request for a

8 public record, isn't it?

9 A. Yes, but it's still a request for a public record.

10 Q. The Putnam Morning Light. Now, what happened to

11 that newspaper?

12 A. That newspaper stopped publishing.

13 Q. Well, are there any records requests in that file

14 from a newspaper that was able to stay in business, other

15 than the Putnam Pit, so far?

16 A. I didn't see any.

17 MR. DUFFY: I object to the form of that

18 question to the extent it insinuates that staying in business

19 has anything to do with the request for public records.

20 MR. HARRIS: Draw your insinuations any way

21 you want.

22 (Whereupon, Deposition Exhibit No. 6 was

23 marked for identification by the reporter, attached at the

24 end of the original transcript.)

25 Q. (By Mr. Harris) Just marked as Exhibit No. 6 is an


1 e-mail that states it is from Geoff Davidian to you. Do you

2 recall receiving this e-mail?

3 A. Yes, I think I recall receiving that e-mail.

4 Q. Now, it states that on October 15th Geoff Davidian

5 apparently asked Steve Corder, your Computer Manager, that he

6 wanted to be listed on the local link, and Mr. Corder never

7 responded to him about that. My question to you is when did

8 you first learn that Geoff Davidian was trying to link up to

9 the City of Cookeville's web page?

10 A. I don't remember the date. I would assume it is

11 somewhere on or about October 24th, 1997.

12 Q. Okay. Did you respond to this?

13 A. I don't know whether I did or not.

14 Q. Had you set any policy about local links on the

15 City of Cookeville's web page?

16 A. When this was written, had I?

17 Q. Yes, when this was written. I'm sorry, on October

18 24th, 1997.

19 A. I don't remember when I did set the policy about

20 what was on the web page.

21 Q. Was it after October 24th, 1997?

22 A. I could refer you to Page 3 of Exhibit 1, a

23 response to a fax dated 10-31, 1997, from Jim Shipley to

24 Geoffrey Davidian. "Until you asked to be linked to our web

25 page, I did not know that we were allowing any private


1 businesses to link. I have stopped that practice. I do not

2 feel the City should be allowing any links by private

3 businesses. The only links that will be permitted on our

4 page will be non-profits. Therefore, I must decline your

5 request to be linked."

6 Q. Prior to this, are you aware that the City of

7 Cookeville was pretty much or basically allowing anybody--

8 A. No, I was not.

9 Q. -to be linked to the web page?

10 A. No, I was not aware of it.

11 Q. So Mr. Corder was the only one who was setting up

12 local links.

13 A. That was Mr. Corder's responsibility and job, to

14 establish a City of Cookeville web page.

15 Q. But you had never told him to allow there to be

16 local links.

17 A. Didn't know what a local link was.

18 Q. So if there was no policy, for example, about

19 tourism and promoting what you consider to be -

20 A. I had never given it any -it had never occurred to

21 me. I didn't even know what a local link was.

22 Q. What is the criteria now about being linked to the

23 local web page?

24 A. It has to promote industry, tourism, the economic

25 welfare of the City of Cookeville. I think Tennessee Tech


1 has a link on our page, and there is one virtual community

2 information link. As far as I know, that's the only two.

3 Q. Is there a requirement that they be non-profit?

4 A. There was a requirement at the time I wrote that e-

5 mail that it be non-profit. I think it can be the virtual

6 community page, I believe, that is for profit. I don't know

7 that it is, but it is information about the City of

8 Cookeville, lodging, restaurants, theaters, all those things.

9 Q. You didn't tell Geoff Davidian, even if he was non-

10 profit, you wouldn't allow him to be linked to the City's web

11 page, did you?

12 A. State your question again.

13 Q. Okay. Did Geoff Davidian ever say, "If the Putnam

14 Pit becomes a non-profit entity -" Did he ever ask you if he

15 would then be allowed to be linked to the web page?

16 A. Yes, he did.

17 Q. Did you tell him no?

18 A. Yes, I did.

19 Q. Did you say that because, in your opinion, he

20 doesn't promote the economic welfare and all of the

21 previously stated criteria?

22 MR. O'MARA: "He" or "it"?

23 MR. HARRIS: He, the Putnam Pit.

24 MR. O'MARA: I object to the form of the

25 question.


1 Q. (By Mr. Harris) All right. Did you say that

2 because you don't think the Putnam Pit promotes?

3 A. No. At the time he asked me the question, I had

4 just found out that we had four profit businesses on our web

5 page, and I have a real problem with allowing for-profit

6 businesses to be linked to the City of Cookeville's web page.

7 So that was my position, that, "Well, we will only allow non-

8 profits."

9 Like I say, I didn't know what a local link was.

10 This was new stuff to me, but I don't like the City of

11 Cookeville to endorse any local business, endorse any

12 attorney's practice, or air-conditioning service, or anything

13 else, and I felt like that would give the impression we were

14 doing that. That was my reasoning that only non-profit

15 entities would be on there.

16 Q. But that is not the policy today, correct?

17 A. Well, the policy today is that it is the City of

18 Cookeville's web page and we want only links on our page that

19 promote the general economic welfare, tourism, and industry

20 in Cookeville.

21 Q. Are you saying that the Putnam Pit doesn't do that,

22 doesn't promote the economic welfare?

23 A. Yes, I'm saying that.

24 Q. What makes you think that it doesn't? Careful now.

25 MR. O'MARA: We don't need for you to be giving


1 advice to my client on answering his question, Mr. Harris.

2 THE WITNESS: It is my opinion that the Putnam

3 Pit does nothing to promote the economic welfare of the City

4 of Cookeville.

5 Q. (By Mr. Harris) Well, does the Putnam Pit report

6 the State health inspection reports?

7 A. According to Mr. Davidian, they do.

8 Q. You have not seen it.

9 A. I haven't seen them in a long time.

10 Q. But if a web site was reporting State restaurant

11 inspections, that would not be the type of site you would

12 want linked to the City?

13 A. I don't know.

14 Q. Well, what do you -I'm sorry. Go ahead.

15 A. It is the City's web page. We want a link to

16 Tennessee Tech and just general information about the City of

17 Cookeville. If you're coming to Cookeville, where you stay,

18 where you eat, those type of things.

19 Q. So if the Putnam Pit put that information in their

20 web page, would they then be allowed to link up to the City?

21 A. I don't know.

22 Q. Well, you don't know? Who sets the policy for

23 linking to the web page?

24 A. Well, ultimately the City Manager does.

25 Q. And that would be you.


1 A. Yes.

2 Q. If the Putnam Pit provides the same information

3 that these other local links do, why wouldn't you allow the

4 Putnam Pit to link up to the web page?

5 A. I don't think the Putnam Pit does provide that same

6 information.

7 Q. But you haven't read the Putnam Pit in a long time.

8 How do you know?

9 A. I don't know.

10 Q. Well, if Geoff Davidian submitted a request to be

11 linked to the web page, would he be allowed to be on the web

12 page, linked to the web page?

13 MR. DUFFY: Object to the form of the

14 question.

15 THE WITNESS: I think the Putnam Pit would be

16 given the same consideration as any other newspaper that ask

17 to be linked to the City's news page, other for-profit

18 businesses.

19 Q. (By Mr. Harris) If a non-profit newspaper ask to

20 be linked to the web page, under your current policy, would

21 they be allowed to link to the City's web page?

22 A. I don't know. You know, you are asking me to make

23 a snap decision. I mean, I don't know.

24 Q. Okay. Would you agree that you have a forum to

25 discuss promoting the City of Cookeville?


1 MR. DUFFY: Object to the question to the

2 extent it calls for a legal conclusion.

3 Q. (By Mr. Harris) Is this a place where businesses or

4 web pages -strike the businesses, I guess. Is this a place

5 where web pages that promote the City of Cookeville's

6 economic welfare, the tourism--is this a place where they can

7 link to the City's web page and promote their agenda?

8 A. Let me tell you why. Let me answer it this way.

9 Let me tell you why, in my opinion, the City has a web page.

10 It is to give information on the Internet about the city. It

11 is not a public forum for people to express their opinions.

12 It is not a public bulletin board for people to advertise

13 their businesses. I didn't know what a link was. I just -

14 when we set out to establish a web page, I thought it was a

15 good idea. It will put us out there on the Internet so

16 people might see Cookeville. We might get a business out of

17 it. We will promote the lakes around the area, just our

18 general community. I didn't think about a local link, but I

19 do not think it is a public forum for anything. I think it

20 is a bulletin board about the City of Cookeville. "Here we

21 are."

22 Q. And this virtual community, who are they?

23 A. I really don't know who they are. All I know is

24 that when I have hit that link and gone into it, it has a lot

25 of information about what is in Cookeville.


1 Q. Have you ever accessed the Putnam Pit on-line?

2 A. Yes, I have.

3 Q. Did it have a lot of information about Cookeville?

4 A. I don't think you could say it had any -the Herald-

5 Citizen has information about Cookeville. So does the Putnam

6 Pit, but neither one of them have the information that the

7 virtual community link had about Cookeville, which was just

8 general information for the visitor to Cookeville.

9 Q. Who makes the decision? Who is the decision maker

10 that a particular web page has or does not have the type of

11 information that you are wanting?

12 A. The particular web page or the City's web page?

13 Q. To the City's web page.

14 A. The ultimate decision would be the City Manager's.

15 Q. And that would be you?

16 A. Yes.

17 Q. You basically stopped, and pardon the expression,

18 kicked off, or got rid of a lot of local links in October of

19 1997; isn't that true? Do you remember?

20 A. Well, November of '97 is probably correct, because

21 this e-mail is dated 31 October, and that is, once I became

22 aware of some of the links that Mr. Corder had added to our

23 web page, I asked that those be removed.

24 (Whereupon, Deposition Exhibit No. 7 was

25 marked for identification by the reporter.)


1 Q. (By Mr. Harris) I have in my hand what has now been

2 marked as Deposition Exhibit No. 7. It's an e-mail from Jim

3 Shipley to Geoff Davidian dated October 31st.

4 MR. O'MARA: Isn't that duplicative (ph) of

5 some of the documents already in this exhibit?

6 THE WITNESS: It's the same page as Page 3.

7 MR. DUFFY: Just get rid of it.

8 MR. HARRIS: Strike Exhibit 7.

9 Q. (By Mr. Harris) Okay. Let's go back to this

10 Exhibit No. 1 dated October 31st, 1997. Let's make sure we

11 have the exhibit numbers right. The very first sentence of

12 that e-mail states, "Until you asked to be linked to our web

13 page, I did not know that we were allowing any private

14 businesses to link." So really, you first learned about

15 local links through Geoffrey Davidian and the Putnam Pit

16 matter, and his request for a link?

17 A. Correct.

18 Q. And then within a week later, you got rid of every-

19 body who didn't- you set a policy and got rid of everybody

20 who didn't meet that policy.

21 A. I explained that I didn't think it was proper for

22 private businesses to be linked to a City's web page.

23 Q. You did that within a week, within roughly a week,

24 of this e-mail dated October 31st, 1997.

25 A. I don't recall when I did it, but I hope I did it


1 pretty soon after I learned about it.

2 Q. Do you take this lawsuit seriously?

3 A. I take any lawsuit seriously.

4 MR. DUFFY: Where did you get that question?

5 MR. HARRIS: I thought it was a standard

6 question. You asked it twice this morning.

7 Q. (By Mr. Harris) Do you think the Putnam Pit only

8 writes negative information about public officials, from your

9 reading of the Putnam Pit?

10 A. As I have stated, I haven't read it in a long time,

11 but it has been my experience that it's all negative about

12 public officials.

13 Q. How do you define negative? Is it negative because

14 it puts the public official in a bad light?

15 A. I think it's negative because it distorts the

16 truth, slants the truth, gives Mr. Davidian's opinions about

17 what has happened.

18 Q. Do you have a problem with citizens giving their

19 opinions about things?

20 A. No, I have no problem.

21 Q. But it's safe to say, by your characterization of

22 the newspaper as somebody that slants the truth, you don't

23 think highly of it, do you?

24 A. No, I don't think highly of it.

25 Q. Why does the City of Cookeville have so many


1 Internet access sites, computers that can access the

2 Internet?

3 A. I believe we have 35. We have close to 400 full-

4 time employees. I don't know that that's so many.

5 Q. Where are the employees who access the Internet?

6 What are they using that for?

7 A. I have no idea what they all are using it for.

8 There are 10,000 uses for the Internet.

9 Q. But you don't know why. How much does the City

10 spend each month on the Internet?

11 A. I think it's a nominal amount. I don't know what

12 it is.

13 Q. But when they are on the Internet, usually they are

14 on the Internet for business purposes and they are taking up

15 City time. They are being paid by the City. Who knows what

16 they are using it for? Does anybody?

17 A. Their supervisor should know what they are using it

18 for.

19 Q. You have never talked to them and said, "What are

20 your employees doing with the Internet?"

21 A. No.

22 Q. Accessing the Internet, that wasn't done in any way

23 to give them something to waste time on instead of research-

24 ing public records requests, was it?

25 A. Do you want to state that question again? I'm


1 sorry.

2 Q. You didn't give city employees access to the

3 Internet so they could waste their time on the use of the

4 Internet instead of researching public records requests?

5 A. No.

6 Q. You don't suffer from any paranoia, do you?

7 A. No.

8 Q. You haven't received any psychological treatment

9 within the last five years?

10 A. No.

11 Q. You have not in any way tried to make Geoff

12 Davidian and the Putnam Pit's reporting and publishing more

13 difficult, have you?

14 A. No.

15 Q. But you haven't gone out of your way to help it

16 either, have you? Is that a fair characterization?

17 A. I don't know if that is a fair characterization or

18 not. I have -no, I have not gone out of my way to make it

19 hard on the Putnam Pit.

20 Q. Prior to the filing of this lawsuit, October 3rd,

21 1997, or sometime thereabouts, there was another lawsuit

22 involving Geoff Davidian against the city. That is still

23 ongoing; isn't that correct?

24 A. Yes.

25 Q. And you are named in your personal capacity in that


1 lawsuit.

2 A. That's correct.

3 Q. And so is the City Attorney. He is named as a

4 defendant in that case.

5 A. That's correct.

6 Q. Now, you would definitely say that hasn't endear-

7 ed--being sued by the Putnam Pit hasn't endeared the Putnam

8 Pit to you, has it?

9 MR. DUFFY: I don't believe the Putnam Pit is

10 a party to Davidian I.

11 MR. HARRIS: I apologize.

12 MR. O'MARA: It's not in existence.

13 MR. HARRIS: Okay. I will rephrase it.

14 Q. (By Mr. Harris) Being sued by Geoff Davidian has

15 not endeared Geoff Davidian and projects he works on, such as

16 the Putnam Pit -was that something that was likely to make

17 you feel favorable about the Putnam Pit and Geoff Davidian?

18 A. No one likes to be named in a lawsuit.

19 Q. You are not enjoying this lawsuit at all, are you?

20 A. Never. I don't know that anybody ever has enjoyed

21 a lawsuit.

22 Q. I guess, to sum it up, prior to filing this lawsuit

23 in October of '97, there was a lengthy history between you

24 and Geoff Davidian and the Putnam Pit.

25 A. I have known Mr. Davidian since 1994 when he got a


1 speeding ticket.

2 Q. When you were still City Finance Manager, when you

3 held that position, you were instructed to keep a file on

4 Geoff Davidian.

5 A. No, I wasn't instructed to. I kept a file of all

6 records that he requested.

7 Q. Why did you do that?

8 A. Because he kept coming back and asking for the same

9 thing over and over, and I wanted to be able to say, "Mr.

10 Davidian, here's where we gave it to you before."

11 Q. Well, is there a problem with somebody coming back

12 in?

13 A. There is no problem with it, but you get a little

14 tired of it when it occurs more than once or twice.

15 Q. Did you think he was doing that just to harass you?

16 A. I didn't know why he was doing it.

17 Q. Have you ever kept a file on any other member of

18 the press?

19 A. No.

20 Q. Have you ever been sued by any other member of the

21 local press? By local press I mean the Herald-Citizen

22 A. No.

23 Q. -or any other news broadcasting.

24 A. No, I have not.

25 Q. But your response to all of these matters involving


1 Geoff Davidian is that you have never been motivated by any

2 intent to obstruct Geoff Davidian or the Putnam Pit.

3 A. The only motivation I had is that I wanted Mr.

4 Davidian to ask for his records and be reasonable about his

5 requests, and that was it.

6 Q. Well, let me ask you this, and I only have one

7 copy, but this states at the top of it that it is a

8 Cookeville Police Department fee schedule for records

9 release. Are you aware of this policy?

10 A. I have never seen this policy written before, no.

11 Q. So nobody at the Police Department has contacted

12 you on that policy.

13 A. No. Are you talking about one, two, three, or

14 four, or all of them, or what?

15 Q. This whole page, all of the policies set forth on

16 that page. Take your time to read it.

17 A. I don't know that I have ever seen it.

18 Q. Does the City of Cookeville intend to enforce that?

19 A. Enforce what?

20 Q. Well, for example, it states that all copies of

21 accident reports and such will be charged at the rate of

22 $2.00 a report. It states that there is an overall minimum

23 charge of $2.00. Are you aware that within the last couple

24 of days Geoff Davidian was getting a photocopy of one page

25 and was told he had to pay $2.00, regardless? Are you aware


1 of that?

2 A. No, I am not.

3 Q. Let me ask you this. Because the Police Department

4 certainly wouldn't be setting up some sort of costly records

5 retrieval system to continue to harass Geoff Davidian and

6 make it more costly for him to investigate the City of

7 Cookeville government, would it?

8 A. No.

9 Q. There is no set policy on that strategy tactic?

10 A. The Police Department has always charged $2.00 for

11 copies of accident reports. I do know that.

12 Q. On September 4th there was a City Council meeting.

13 MR. O'MARA: What year?

14 MR. HARRIS: 1997. - at which you introduced

15 what is, I guess, now the current public records request. I

16 can either play the tape or summarize it for you.

17 MR. O'MARA: I have no idea what your question

18 is. Do you have a question of the witness?

19 MR. HARRIS: My question points out there are

20 things on here that Mr. Shipley states. I would kind of like

21 to know what he meant by them. It might be easier -

22 MR. O'MARA: Do you have a transcript?

23 MR. HARRIS: No, we could play it. Nah, I

24 don't need to play it.

25 Q. (By Mr. Harris) Let me ask you this. On that


1 night you said there was one individual.

2 MR. O'MARA: Do you want to play it?

3 MR. HARRIS: Nah, that's all right.

4 MR. DUFFY: There is a player right up there

5 (indicating).

6 Q. (By Mr. Harris) We will do it to the best of your

7 recollection. If you don't remember - On that night, if you

8 remember, you basically stated at the City Council meeting

9 when you were introducing the first reading of this public

10 records request, you stated that there was one individual who

11 had been costing the City a lot of money. Now, I'm para-

12 phrasing. Do you remember what individual you were referring

13 to?

14 A. Yes, I do.

15 Q. Who was that?

16 A. Geoffrey Davidian.

17 Q. There was also a comment about the Herald-Citizen,

18 or at least somebody named Dyana. Do you remember that

19 night? Was that Dyana Bagby that would have been at that

20 meeting?

21 A. She attends a lot of meetings. She probably was

22 there that night.

23 Q. So has it ever been your intention not to apply

24 this public records request with the charges, the 130 percent

25 charge and all that -you know what I'm talking about, right?


1 A. (Indicating).

2 Q. Has it ever been your intention not to apply that

3 to the Herald-Citizen?

4 A. It has never been my intention not to apply it

5 fairly to everybody.

6 Q. Have you ever applied it to the Herald-Citizen?

7 A. They have never given me any occasion to apply it

8 to them.

9 Q. The Putnam Star, same thing?

10 A. Same thing.

11 Q. Now, we have talked about cookies. You know that

12 Geoff Davidian subsequently came in on November 3rd and asked

13 to see what I'm going to call Internet files, which would be

14 any documentation that shows where somebody has been on the

15 Internet. Are you familiar with that aspect of the

16 complaint?

17 A. I don't know if I know exactly what you're talking

18 about.

19 Q. Go ahead.

20 A. Explain a little further, please.

21 Q. Well, is it true or not that on October 31st, 1997,

22 Geoff Davidian and the Putnam Pit sent a request by e-mail to

23 inspect the City's Internet files, which includes browser

24 files, cache files, c-a-c-h-e, in addition to the cookies.

25 Do you remember that?


1 A. Do you have a copy of that fax?

2 Q. I don't think so. Is it fair to say this, from

3 your recollection, that Geoff Davidian subsequent to the

4 initiation of this lawsuit, has come back in and ask the City

5 to see Internet files?

6 A. Yes.

7 Q. In addition to cookies.

8 A. Correct.

9 Q. And you did not let him see them.

10 A. I believe my response was that they do not exist,

11 that they are deleted from our computer.

12 Q. On November 3rd, do you know whether, in fact,

13 although this was probably the result of a discussion between

14 me and Mr. O'Mara, do you know whether or not Geoff Davidian

15 was allowed to see one computer to show him that the Internet

16 files were deleted?

17 A. I let him look in mine one time. I don't know if

18 that was November 3rd.

19 Q. But you do recall one time where you let him look?

20 A. Yes, that was in an effort to try to be coopera-

21 tive.

22 MR. HARRIS: That's it.

23 (Whereupon, the deposition of JIMMY DALE

24 SHIPLEY was concluded at the approximate hour of 5:15 p.m.,

25 on Thursday, June 25, 1998.)


1 C___E___R___T___I___F___I___C___A___T___E__



4 I, PHYLLIS J. STINSON, a Court Reporter and

5 Notary Public in and for the State of Tennessee at Large, DO

6 HEREBY CERTIFY the foregoing deposition was taken at the time

7 and place set forth in the caption hereof; that the witness

8 herein was duly sworn on oath to testify the truth; that the

9 proceedings were stenographically reported by me, and the

10 foregoing pages constitute a true and correct transcript of

11 said deposition to the best of my ability.

12 I FURTHER CERTIFY that I am not a relative or

13 employee or attorney or counsel of any of the parties hereto,

14 nor a relative or employee of such attorney or counsel, nor

15 do I have any interest in the outcome or the events of this

16 action.

17 IN WITNESS WHEREOF, I have hereunto affixed my

18 official seal and signature this 3rd day of July, 1998, at

19 Cookeville, Putnam County, Tennessee.

20 My Commission expires November 20, 2000.


Phyllis J. Stinson

Notary Public at Large

State of Tennessee

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