IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

 

THE PUTNAM PIT, INC., and

GEOFFREY DAVIDIAN

Plaintiffs                                                                                          Case No. 2-97-108
 

v.                                                                                                    Judge Higgins
 

CITY OF COOKEVILLE, and                                                      JURY TRIAL DEMANDED

JIM SHIPLEY, in his official

capacity as City Manager of

the City of Cookeville,

Defendants }
 

PLAINTIFFS' MEMORANDUM OF LAW AND FACTS IN

RESPONSE TO MOTION TO DISMISS

 

Plaintiffs respond to Defendants' Motion for Summary Judgment as follows:
 

Statement of Facts

 

The Plaintiffs engage in the publishing of a newspaper and web page titled "The Putnam Pit," which consists of hard-biting, satirical, and openly critical news and opinion, regarding, inter alia, the City of Cookeville government. Mr. Davidian's stated goal as editor and publisher is to create an atmosphere in which corruption can not occur. (Plaintiff's Affidavit dated August 7, 1998). The Defendants have persistently obstructed the Plaintiffs' legal newsgathering and further denied Plaintiff access to the City of Cookeville's web page as part of an effort to stifle opinion unfavorable to present regime controlling municipality. (Plaintiff, Geoff Davidian, Response to Defendant's Interrogatory Number 1a., p. 14-20). The Defendants and Plaintiffs have been involved in other litigation over public records and other actions by the city that allegedly violated Plaintiff Geoffrey Davidian's constitutional rights. (Plaintiff's Affidavit dated August 7, 1998). Despite this long history, Plaintiff Geoffrey Davidian has acted as the professional journalist he is and has not been rude to any employee of the Defendant. Id.

Acting as a member of the press and as the employee of a Tennessee corporation, the Putnam Pit, Inc., Plaintiff Geoffrey Davidian in July of 1997 sought a copy of the electronic computer file containing the names, license numbers and dates of violation for outstanding municipal parking tickets. (Plaintiff, Geoff Davidian, Response to Defendant's Interrogatory Number 1a., p. 16-17). Defendants refused to allow inspection or provide a copy of the electronic file of the parking tickets but instead offered to print out dozens of pages of assorted information. (Plaintiff's Affidavit dated August 7, 1998). This refusal and side-step evasion was in spite of the Defendants, through the city attorney, facial offer to allow Plaintiffs to inspect records "in whatever form the City of Cookeville keeps the record." (See Exhibit 6 to Defendant's Motion for Summary Judgment).

When Plaintiffs determined that the parking ticket data provided was worthless, in that there were significant errors and outdated information, Plaintiff Davidian told Police Lt. Nathan Honeycutt that he intended the information to be current. Plaintiff was not offered any satisfactory explanation as to why the paper tickets were inaccurate. (Plaintiff, Geoff Davidian, Response to Defendant's Interrogatory Number 1a., p. 16-17).

Plaintiff Davidian on August 12, 1997, asked Defendant, Jim Shipley, "cookie" files that would show whether city computers had been browsing to Internet sites not consistent with government employment. This information was sought for the publishing of a story about Internet usage by city employees. (Id. at p. 17-18.).

The City Manager for the City of Cookeville, Jim Shipley, at first demanded an arbitrary sum of $327.60 deposit to pay someone to inspect the computers, then announced as a pretext to prevent further investigation and access into public records that even with payment access would be denied pending a determination of whether the files were public. ( Id. at p. 18). Indeed, the very records of Internet usage for which the Plaintiffs were arbitrarily being charged a significant sum were supposedly being deleted on a daily basis (though this fact was not apparent to the Defendants' computer manager, Steve Corder when he overestimated the time involved for research which Plaintiffs did not want nor request). (Id.; Deposition of Steve Corder p. 12-13, 29-31, 40; Deposition of Jimmy Dale Shipley, p. 23-29). No other member of the press or public has ever been required to pay an advance sum of this amount for any records request for research, inspection, or for copying. (Deposition of Jimmy Dale Shipley, p. 23).

On October 1, 1997, the Plaintiffs wrote to Defendant Jim Shipley, seeking access to public records concerning "cookie files" and police department parking tickets. On October 2, 1997, via e-mail, Defendant Jim Shipley, stated that nobody would be available to provide access to police data on parking tickets, and that the Plaintiff would have to reschedule. Further, he stated that Plaintiff would not be allowed to inspect the "cookie" files maintained on city computers. On Friday, October 3, 1997, when Plaintiffs requested to see even the paper documents of parking tickets from the individual who normally assisted Mr. Davidian with the inspection of parking ticket records, Plaintiffs were told to contact the City Manager's office. Plaintiffs were then told they would not be allowed to see any parking ticket records regardless of form.that day. (Plaintiff, Geoff Davidian, Response to Defendant's Interrogatory Number 1a., p. 18-19).

On October 31, 1997, Plaintiffs sent by fax and electronic mail a request to inspect the city's Internet records including browser files and cache files. All records relating to the City's use of the Internet will hereinafter be referred to as the "Internet records." On October 31, 1997, via e-mail, Defendants, stated that such files were not public records and the files were destroyed daily. (Id., p. 20-21).

Plaintiffs requested and were allowed to view the Internet files maintained on the City of Cookeville's computers on the morning of November 3, 1997. Plaintiff's inspection revealed no information was available. Later in the afternoon, when Mr. Davidian asked for another inspection on the belief that the employees of the City had been accessing the Internet during the day, the Defendants refused further inspection. (Id., p. 19-20).

On three occasions, in the fall of 1997, the Plaintiffs asked that the Putnam Pit web page be included on a list of local Internet sites linked to the City of Cookeville's web site. At that time the City of Cookeville had a general offer to link other web sites to the Defendant's web page. (Id., p. 20). The Putnam Pit web site was the only site for which a significant delay and ultimate denial for a link to the City's web page. (Deposition of Steve Corder, p. 21-22, 26-27). The reason for the denial of a link while other members of the public were allowed to post a link on the City's web page was the perception of controversial content of the Plaintiffs' writings. (Deposition of Steve Corder, p. 22-23). On October 31, 1997, Defendant Shipley stated by electronic mail that he would not include the Putnam Pit as a link, and that he had decided to exclude all but not-for-profit entities as links. (Deposition of Jimmy Dale Shipley, Exhibit 1, p. 3, Fax Subject: Response to your fax dated 10-31-97 12:15 p.m.). Nevertheless for-profit entities were retained on the list until at the next week. (Plaintiff's Affidavit dated August 5, 1998). Plaintiffs were denied access for 19 days when the City's web links were open to web pages concerning Cookeville before other commercial links were removed. Id. Even if the Putnam Pit were a non-profit entity, the Putnam Pit would not have been allowed a local link to the City of Cookeville web page. (Deposition of Jimmy Dale Shipley, p. 53-54).

Argument

I. PLAINTIFFS' FIRST AMENDMENT RIGHTS OF ACCESS TO PUBLIC RECORDS IN COMPUTER AS WELL AS PAPER FORMAT WERE VIOLATED.
 

The issue on which a portion of this present case turns is whether the Plaintiffs seeking of Internet records and parking ticket records from the City of Cookeville, Tennessee is part of the stock of information the government is required to make available to the public, i.e., the type of newsgathering that the First Amendment protects. The Defendant's Brief only argues that the Plaintiff have no right of access to Defendant's computer files ignoring the denial of access to parking ticket records on October 3, 1997 in paper form.

The complaint sets forth two separate denials of access to public records which the Plaintiff asserts were violations of the First Amendment Freedom of Press guaranty. First, after giving Plaintiffs the bureaucratic runaround on October 3 1997, the Defendants did deny access to any parking ticket records even in paper form. (Plaintiff, Geoff Davidian, Response to Defendant's Interrogatory Number 1a., p. 18-19). Defendant does not even address this matter in their motion. Plaintiff agrees that denial of access to the parking ticket records to download in electronic form is not a per se violation of the First Amendment, but denial to inspect the computer records as well as paper records of parking violations with the purpose obstructing the publication of news stories is. Second, although dependent upon whether the records of Internet usage be considered public records, the First Amendment was implicated when the Plaintiffs were denied access to the Internet files. The history between the parties as a whole show that a material question of fact exists as to the intent and purposes of delaying and denying access to the parking ticket records and other city records. (Plaintiff, Geoff Davidian, Response to Defendant's Interrogatory Number 1a.).

Defendants acknowledge that newsgathering qualifies for some First Amendment protection. The United States Supreme Court has acknowledged the need for such protection to give meaning to the First Amendment in cases such as Branzburg v. Hayes, 408 U.S. 665, 728, 92 S.Ct. 2646, 2673 (1972) ("No less important to the news dissemination process is the gathering of information.... [F]or without freedom to acquire information the right to publish would be impermissably compromised."); First National Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 1419 (1978) ( "[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw."); and Richmond Newspaper, Inc. v. Virginia, 448 U.S. 555, 584, 100 S.Ct. 2814, 2831 (1980) ("[T]he First Amendment protects the public and the press from the abridgment of their rights of access to information about the operation of their government, including the Judicial Branch." STEWART, J. concurring.) Plaintiffs have been thwarted in their ability to function as an investigative newspaper by, inter alia, the Defendants' denial, delay, and obstruction of Plaintiffs access to public records.

None of the cases cited in Defendant's brief stand for the proposition that the press has no constititutional rights in the course of gathering news. Capital Cities Media, Inc. v. Chester, 797 F.2d 1164 (3rd Cir. 1986), for example, while having facts somewhat similar to the present case did find a constitutional right to access government records, but found, against a strong dissent, that the particular records sought therein were not the type of records to which access was traditionally allowed. Tennessee's Public Records Act, which grants access to certain public records, has established a tradition of access to the records sought. To arbitrarily ignore the implications of this state law is to deny the constitutional right to gather information.

Plaintiffs seek access to public records pursuant to Tennessee Code Annotated 10-7-503 which establishes a broad right of public access to governmental records and states as follows:

"All state, county and municipal records ... shall at all times, during business hours, be open for personal inspection by any citizen of Tennessee, and those in charge of such records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law."
 

This statute makes the municipality's records available to the public, thus to seek these records for purposes of disseminating the information to the public is not to seek special access, but rather to seek the same access any other person would be accorded under the law. The statute does not say the records are available when the Defendant feels in a generous mood and its employees are not brooding over some mis-perceived slight, nor its specially designated employee is scheduled to work, nor after the person requesting access to the public records has given written notice days in advance.

Defendants cite Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588 (1978), a case involving the news media seeking special access to a county jail. The case is distinguishable by the very nature of the special access sought. As explained therein, "[t]he Constitution does no more than assure the public and the press equal access once government has opened its doors." Id., 438 U.S. at 16, 98 S.Ct. at 2597 (Stewart, J., concurring in judgment). Plaintiffs in the present case seek only access accorded under state law when the government opened its doors by statute to allow inspection of records. Viewing public records at a city hall hardly equates to a reporter demanding access to interview prisoners in jail.

Analysis under Richmond Newspaper's two-tier test(1) supports Plaintiffs' contention that access to public records in the course of gathering of news, is protected constitutionally. The state law establishes a tradition of accessibility for the general public to access public records. The records sought also can be shown to be similar to other records traditionally made available to the public. Internet files, i.e. computer generated files, such as "cookies" or "history files," showing which web sites a computer user accessed when using the Internet, are no different from telephone logs or any other type log of activity by a government employee. (Plaintiff's Affidavit dated August 7, 1998). The form of recording may appear newfangled but the function of logging information is not. Furthermore, public access would play a significant positive role in the functioning of the municipal government's operations. Plaintiffs seek to open public discourse on the efficiency and effectiveness of certain government processes. Thus the Richmond Newspaper test is met.

To further support the argument that Internet records are public records, the Tennessee statute defining public records is clear, absent a strained interpretation to find otherwise.

"Public record(s)" or "state record(s)" means all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings, or other material, regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.
 

Tenn.Code Ann. 10-7-301(6) (1992) (Emphasis added).
 

T.C.A. 10-7-505 provides a remedy to the citizen who has been denied access to any public record, through the filing of a petition in the chancery court of the county where the record is located. The statute allows for an expedited hearing. Section (d) of that statute instructs the courts that: "... this section shall be broadly construed so as to give the fullest possible public access to public records." (Emphasis added).

The Tennessee Supreme Court has indicated that the Tennessee Public Records Act "sets up a presumption of openness to records of governmental entities, the burden is placed on the governmental agency to justify nondisclosure of the records. See Memphis Publishing Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994) (Allowing press access to deposition transcripts from bankruptcy proceedings in possession of government attorneys). The Tennessee Supreme Court therein noted that Tennessee courts have been vigilant in upholding the legislative mandate of allowing broad access to records unless otherwise confidential under Tenn.Code Ann. 10-7-504, "even in the face of serious countervailing considerations." Id.

The Tennessee Supreme Court in Memphis Publishing Co. reversed the Court of Appeals' narrow definition of the term, "records," noting that the term also includes "material made or received in connection with the transaction of official business. Id. at 687. A restrictive definition would not comport with the Tennessee Legislature's mandate of ensuring the broadest possible access to public records. Id.

Under a broad construction of the statute, the access which Plaintiffs seek, namely inspecting computer files of parking violations and Internet usage, is nothing special but simply traditional access to public records maintained by the City of Cookeville. It is a question of fact as to whether the real purpose of the denial of access to the various records was part of some unconstitutional, content-based scheme to obstruct the press or whether the Defendants were denying access due to overly intrusive requests by the Plaintiffs.

II. PLAINTIFFS HAD A FIRST AMENDMENT RIGHT TO LINK TO THE

CITY'S WEB PAGE AS A PUBLIC FORUM.
 

"[W]hen the Government has intentionally designated a place or means of communication as a public forum speakers cannot be excluded without a compelling government interest." Cornelius v. NAACP Legal Defense & Education Fund, 473 U.S. 788, 800, 105 S.Ct. 3439, 3448 (1985). As noted in Defendant's brief at page 11, the government must intend to make the property generally available to speakers. (Citing Arkansas Educational Television Commission v. Forbes, __ U.S. ___, 118 S.Ct. 1633, 1641-42, __ L.Ed.2d ___ (1998)). A designated public forum is "property that the State has opened for expressive activity by all or part of the public." International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541 (1992) (hereinafter, "ISKCON"). "If the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny. Forbes, at 1641. (Citations omitted).

Even if a forum is a nonpublic forum, the government can not restrict speech in whatever way it likes. Forbes, at 1643. (Citing ISKCON, 505 U.S. at 687, 112 S.Ct. at 2712). " To be consistent with the First Amendment, the exclusion of a speaker from a nonpublic forum must not be based on the speaker's viewpoint and must otherwise be reasonable in light of the purpose of the property." Id.(citing Cornelius, 473 U.S. at 800, 105 S.Ct. at 3447-3448. The government can not restrict access to a nonpublic forum because a public official opposes the speaker's view. Id. at 1641.

A state cannot "enforce exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Missouri Knights of the Ku Klux Klan v. Kansas City, Missouri, 723 F.Supp. 1347, 1352 (W.D.Mo. 1989) (Citing, inter alia, Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 376 (1981)). A designated public forum may only be removed in a manner consisted with the First Amendment. Id.

The City of Cookeville had clearly designated its web page on the Internet as a forum open to the public by allowing other web pages to link up with the City's page. Steve Corder, the City of Cookeville's Computer Operations Manager, made the decision as to who could post a link on the City's web page. (Deposition of Steve Corder, p. 19). The opportunity to post a link, and thus access this forum, was available to any business or organization in the City of Cookeville that had their own web site. Id. at p. 20. A copy of the local links existing at the time the Plaintiffs made a request to be linked is set forth as Exhibit A to the Affidavit of Geoffrey Davidian filed with this response. These links were not removed until November 3, 1997. (Plaintiff's Affidavit dated August 7, 1998).

From October 15, 1997, when Geoffrey Davidian formally e-mailed his request to be linked until November 3, 1997, other entities were allowed access to the local links page for the City of Cookeville. Id. Yet the City of Cookeville through its employees continued to deny access to the Plaintiffs. Id. The Plaintiffs' request was handled differently from every other request in that Steve Corder delayed establishing a link until he received approval from his boss. (Deposition of Steve Corder, p. 21-22, 26-27). The reason for denying the Putnam Pit a link to the Defendant's web page was content based. Id. at p.22-26). The Putnam Pit was not linked because the city employee/decision maker deemed the publication controversial. Id.

Posting a web link to the City of Cookeville's web page was generally available to the public; therefore, the local links of the City's web page was a designated public forum. Yet when the Plaintiffs sought access they were denied. There is a question of fact as to whether the denial of access was intentional discrimination based on the Plaintiffs' views Absent a compelling interest, the City was engaging in blatant censorship of ideas they disapprove.

Even by the current criteria for being linked to the City of Cookeville's web page, the Plaintiffs' web page, The Putnam Pit, arguably should be entitled to a local link. According to the City Manager, Jim Shipley, a web page "has to promote industry, tourism, the economic welfare of the City of Cookeville." (Deposition of Jimmy Dale Shipley, p. 52). The Putnam Pit, in its paper editions and on the Internet, is a publication that discusses these very matters. (See Exhibit 8 and 9 to Defendant's Motion for Summary Judgment, Plaintiff's Affidavit dated August 7, 1998). One may take different view over the content and manner of discussing the activities in Cookeville, but the vague criteria set forth can not exclude the Putnam Pit because the public officials have a different viewpoint as to how to best promote Cookeville. The Plaintiffs are of the opinion that the public will view Cookeville favorably if they see a town with a news publication that seeks to root out corruption. (Plaintiff's Affidavit dated August 7, 1998).

Therefore, the Plaintiffs should be entitled to, not only damages for the period of time in which they were not allowed on the City's web page, but also injunctive relief requiring the City of Cookeville to provide a local link.

III. DEFENDANT'S CONDUCT IN DENYING ACCESS TO PUBLIC RECORDS AND IN DENYING THE PUTNAM PIT WEB PAGE LINK WITH THE CITY'S WEB PAGE

LINK WAS ARBITRARY AND CAPRICIOUS VIOLATING THE DUE PROCESS

AND EQUAL PROTECTIONS RIGHTS OF PLAINTIFF SECURED BY THE FOURTEENTH AMENDMENT.
 

The Defendants cited in their argument regarding the applicability of the First Amendment to a public records request the case of Capital Cities Media, Inc. v. Chester, 797 F.2d 1164 (1986). Capital Cities Media, Inc. involves a newsgathers attempts to gain access to records from a state agency regarding water contamination in Pennsylvania. While the court therein denied the First Amendment claim, it allowed further discovery so that plaintiff-newspaper could support its equal protection claim. As in Capital Cities Media, Inc., Plaintiffs do state a claim based on the Equal Protection and Due Process clauses in the Fourteenth Amendment. An equal protection claim was also brought regarding an access to public records. See Amelkin v.Commissioner, Dept. of State Police, 936 F.Supp. 428 (W.D.Ky. 1996). See also McCoy v. Providence Journal Co., 190 F.2d 760 (1st Cir. 1951).

Defendants cite Hampton v. Hobbs, 106 F.3d 1280 (6th Cir. 1997) for establishing that the rational basis standard is applicable. While one could argue that a fundamental right, i.e. freedom of speech and the press, would require a stricter scrutiny, Defendants can not justify their actions as being anything other than an irrational attempt to obstruct and hinder Plaintiffs because of animosity developed due to the criticism published in their newspaper.

Plaintiffs were obstructed in their access to records in ways other members of the public and press were not. (Deposition of Jimmy Dale Shipley, p. 36, 37-41, 44-45, 49-50, 68). Plaintiff Geoffrey Davidian was required to fill out paperwork and pay deposits that no other member of the press has been required. (Plaintiff's Affidavit dated August 7, 1998). Plaintiffs have been singled out by Defendants to undergo whatever bureaucratic maze they can create to obstruct and hinder the publication of the Putnam Pit. This discrimination is all the more invidious because it involves what is tantamount to censorship of the press by local government officials. News media favorable to the City of Cookeville's officials have not had to pay deposits or fill out paperwork. Nor have others in the press or public been given the official runaround as Plaintiffs have been.

Perhaps nowhere is it clearer that Plaintiffs were treated differently on an unconstitutional basis than Steve Corder's statements that he did not establish an internet link between the Putnam Pit and the City of Cookeville because he knew the Putnam Pit was controversial which he was based on some unexplained irrational thoughts among City of Cookeville employees and most significantly, the content. (Deposition of Steve Corder, p. 22-23) Many questions of fact exist as to why the Putnam Pit was not given parking ticket records on October 3 when other newspapers such as the Herald Citizen daily inspect police reports unimpeded. (Deposition of Jimmy Dale Shipley, p. 44.). A fact that alone contradicts Defendants assertions that Plaintiffs are the most demanding of the city's resources for information.

Substantive due process protects citizens from arbitrary and irrational acts of government. Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 692 (3rd Cir. 1993) (Citations omitted). "A violation of due process is proven: (1) if the government's actions were not rationally related to a legitimate government interest; or (2) 'if the government's actions in a particular case were in fact motivated by bias, bad faith or improper motive. . . .'" Id. In the present case, the Plaintiffs assert that a question of fact exists as to whether the requirement of prepayment of a deposit for a records request in an amount based on arbitrary estimates by the Defendants was rational. Furthermore, a question of fact exists as to the motivation for the charge - whether for example it was calculated to discourage the request.

The rule that Defendant derives from Graham v. Conner, 109 S.Ct. 1865, 1871 (1989),(2) that a plaintiff cannot invoke a substantive due process claim where it has brought a 1983 action based on the First Amendment is not supported by any reasonable reading of Graham.

As to the arbitrary and capricious nature of the Defendants' alleged acts, consider what rational basis the Defendant Shipley had for his requiring a deposit calculated down to the very penny before Plaintiffs could see the Internet files. The manner in which he calculated the deposit is indicative that his chilling demand for a considerable sum in advance was not rationally related to any proper purpose. How does one rationally determine a set number of hours to discover that the Internet files do not exist? Defendants have subsequently stated that there are no Internet files. So how did he arrive at the sum required for the deposit?

Furthermore, the assertion of the Defendant's Computer Operations Manager that he was attempting to provide the Plaintiffs with more information rather than less (including information and research Plaintiffs had never asked for)(Deposition of Steve Corder, p. 9-10, 12-13, 29-31, 39-40) would have been extremely unusual in light of Defendants' position of not responding to Plaintiffs purportedly demanding requests. When money was going to be charged, all of a sudden the Defendants are ready to provide half of its Computer Operation Manager's workweek. Indeed the estimate of the time needed for Steve Corder to discover records that he had supposedly set the computers to delete on a daily basis is questionable. (Deposition of Steve Corder, p. 30, 37-38, 40). Plaintiffs position is that the requirement for prepayment in excess of $300 was an arbitrary yet calculated effort to discourage Plaintiffs from pursuing not only the Internet records request but other future requests as well. There was no rational basis for requiring a significant deposit for research that Plaintiffs had not requested, demanded, nor required.

Nor have the Defendants met any other standard of proof required for summary judgment in establishing a legitimate government interest in treating Plaintiffs so arbitrarily. Their unsubstantiated claims, which do no more than attempt to spin the notion that Mr. Davidian is unreasonable, have no place in a motion for summary judgment. Accordingly and based on the foregoing, their motion to dismiss must fail.

THE COURT SHOULD EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFFS' STATE LAW OPEN RECORDS ACT CLAIM.

 

Defendants, not Plaintiffs, chose this Court to exercise jurisdiction over the case. Now they seek to remand a portion of the case, i.e. the state law Open Records Act claim, claiming its presents a novel and complex issue of state law. Defendants would seek to increase the litigation burden of two judicial systems and the limited resources of the Plaintiffs. This is unnecessary.

First, as noted in Plaintiffs' Memorandum of Law and Facts in Support of Motion for Preliminary Injunctive Relief and in argument set forth above, the issue of whether Internet records are public records requires only a straightforward reading of the state statute. It is doubtful that every type of record maintained by the State of Tennessee and its municipalities has been the subject of litigation. Yet the Tennessee statute clearly accounted for the future by defining public records as "other material, regardless of physical form." See Tenn.Code Ann. 10-7-301(6). There is nothing complex or novel about straightforward interpretation of the clear language of a statute.

The fact that the City of Cookeville does not print out Internet records does not remove them from the definition of public records. How convenient it would be to evade compliance with the Tennessee Public Records Act simply by creating new technology to store records and then insisting that the records are not public records because of a self-imposed change of form. The issue presented on the Internet records, while somewhat novel because the medium of the Internet is still in its early years, is not complex because the Tennessee legislature had the foresight to allow for new technologies.

THE ELEVENTH AMENDMENT IS NOT APPLICABLE WHERE THE DEFENDANT CONSENTED TO THE JURISDICTION OF THE FEDERAL COURT BY REMOVAL.

 

As noted in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145 (1985), if the State waives immunity by consenting to suit in federal court, the Eleventh Amendment does not bar the action. Therefore, by the Defendants choosing this forum, a federal court, they have waived any immunity deriving from the Eleventh Amendment. To deny a remedy to which Plaintiffs are entitled after the Defendants chose the forum would be manifestly unfair and condone the Defendants' delaying tactics.

Conclusion

WHEREFORE, Plaintiffs respectfully request this Court deny the Defendants' Motion for Summary Judgment and allow the case to proceed to trial.
 

Respectfully,
 

____________________________

Samuel J. Harris BPR#17392

P.O. Box 873

Cookeville, TN 38503

(931) 372-7227
 
 
 
 
 
 

Certificate of Service

 

I hereby certify that a true and correct copy of the foregoing was served on the Defendants, by personal delivery to the office of T. Michael O'Mara, 317 West Spring, Cookeville, Tennessee, this 10th day of August, 1998.
 
 

Samuel J. Harris

Return to The Putnam Pit

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

1. Defendant refers to "the two-tier Richmond Newspapers test" in Defendants' Memorandum in Support of Motion for Summary Judgment (hereinafter, "Defendants' Brief") at p. 8. Plaintiff writes on the assumption that this test is the two-tier enunciated in Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 2740-41, 92 L.Ed.2d 1 (1986). The test therein can be summarized as:

First, because of a 'tradition of accessibility implies the favorable judgment of experience' ... [courts are to consider] whether the place and process has historically been open to the press and general public. ...

Second, [courts are to consider] whether public access plays a significant positve role in the functioning of the particular process in question.

2. As cited in Defendants' Brief at p. 14.