Plaintiffs                                                                   No. 2-97-108


JIM SHIPLEY, in his official
capacity as City Manager of
the City of Cookeville,



This action concerns Plaintiffs' claims seeking access to parking ticket data in electronic form, to City computer Internet usage history files and to be linked to the City's web site. (Geoffrey Davidian depo., Defendants' Exhibit 1, pp. 77-79). Davidian acknowledges that he has gotten and continues to get records that he requests in hard copy, paper format. (Id. pp. 79-80). Davidian has never requested nor received data in electronic format from any public entity. (Id. pg. 82). Davidian is unaware of anyone to whom the City has ever provided access to data in electronic format. Id. pp.65-66). Assuming the City's records are correct, Davidian acknowledges that he has received many times more records pursuant to his record requests than any other individual or entity. (Id. pg. 63). Davidian does not deny that his requests have required more employee time to process. (Id. pp. 64-65; 101-109). Davidian acknowledges that the City has sent documents to him in California by fax or e-mail, although this is not required by the Tennessee Open Records Act. (Id. pg. 110). Davidian has on numerous occasions gotten the City to provide duplicate copies of documents. Id.). Davidian has seen all of the many employee personnel files he has requested to see. (Id. pg. 138). Davidian's written version of The Putnam Pit is now produced by him approximately quarterly. (Id. pg. 94). It has a circulation of approximately two thousand. (Id. Pp. 96). It is distributed at numerous locations throughout the City. (Id. pp. 96-97).

With respect to The Putnam Pit web site, an Internet user can easily locate The Putnam Pit web site through any of the commonly used Internet search engines just by using the word search "Cookeville, Tennessee." (Id. pp. 90-91). Davidian acknowledges that it is easy to locate The Pit web site on the Internet. (Id.). The Pit web site is visited by approximately one thousand Internet users per month. (Id. pp.89-90).

In the experience of Cookeville City Manager Jim Shipley, Mr. Davidian is unique amongst members of the press. (Excerpt of Jim Shipley depo., Defendants' Exhibit 3, pp.4, 6). In Shipley's mind, no one besides Davidian has ever hassled City employees and demanded so much of employees' time with record requests. (Id. pp. 7-8). Shipley perceives Davidian as demanding, insisting that City employees drop what they are doing to immediately take care of his requests, is a smart aleck when making requests by accusing them of changing, deleting or hiding things, and just plain rude. (Id. pp.7-8, 10, 12-13).

Shipley's Administrative Assistant deals with the public all the time and Davidian is the first person who has ever upset her. (Id. pp.13-14). Davidian has impliedly threatened her and questioned her integrity. (Gail Fowler depo., Defendants' Exhibit 2 pp.4-6). As a result of Davidian's extensive research requests, the City instituted a practice of charging all persons for actual personnel costs for requests involving extensive research and compilation. (Id. pp. 23-24; Affidavit of Gail Fowler, Defendants' Exhibit 4, Par. 2).

With respect to Internet computer files, Davidian is the first person to ever make such a request, and the City has never allowed the public to inspect the City's computers. (Shipley depo., pg. 19). Initially upon Davidian's request to inspect City computer "cookie" files, Shipley did not know what this would entail, so he asked the City Computer Operations Manager how much of his time would be required in fulfilling this request. (Id. pp. 24-25; Steve Corder depo., Exhibit 5, pp.3-5, 9, 12-13). Mr. Corder made assumptions about what information Davidian was looking for and gave Shipley an off-the-top-of-his-head estimate of about thirty (30) hours to find, process, compile and download this information for all thirty- five of the City's Internet accessible computers. (Corder depo., pp.9, 12-13). Corder was aware that 95% of web sites do not leave cookie files deposited on computers and assumed that the information Davidian wanted would require him to inspect, interpret and copy each of the computers' Internet history and cache files. (Id. pp. 30-35). Corder also assumed Davidian's request would require him to research all these files since the City's computers were set to delete cookie files. (Id. pp. 39-40). Shipley had never had to quote someone a charge for employee's research time because no one ever before had requested something like this be researched. (Shipley depo. pg. 27). Shipley took exactly the information provided by Corder, figured the cost to the City, and requested Davidian to pay a deposit for those costs.

(Id.). However, two weeks later, Shipley wrote Davidian advising him that they had researched just exactly what a "cookie"(1) file was, and that based on Microsoft's definition, the City had determined that "cookies" are neither the property of the City nor a public record, and accordingly they would not allow the inspection request. (Id. pp. 29-30).

As Davidian continued to make requests for electronic records, City Attorney T. Michael O'Mara wrote Davidian on July 9, 1997, setting forth precisely what the City's policy was with respect to public records access. (Letter, Defendants' Exhibit 6).

Although Shipley's opinion is that The Putnam Pit stories are slanted and he does not
care for Davidian' s opinions, Shipley does not care what Davidian puts in The Putnam Pit.

(Shipley depo. pp.43-44). Shipley has not intentionally tried to make Davidian's reporting or publishing in The Putnam Pit more difficult. (Id. pg. 62). Shipley's only motivation with Davidian is wishing that he be reasonable in his requests. (Id. pp.64-65). Shipley has no intent to obstruct Davidian or The Putnam Pit. (Id.). Shipley and the City attempt to apply the public records requests policies fairly to everybody. (Id. pp.67-68; Jim Shipley Affidavit, Defendants' Exhibit 7, Par. 5).

Regarding the City's web site(2), the City's intent behind creating the site is to provide
information via the Internet about the City of Cookeville in hopes of promoting the area to attract businesses, tourists and the like. (Shipley depo. pp.57-58; Shipley Affidavit Pars. 7-8).

It was not the City's intent that the web site be a public forum for people to express their
opinions nor a bulletin board for people to advertise their businesses. (Id.). Until Davidian asked to be linked to the City's web page, Shipley did not know that there were "local links" to private businesses on the web site. (Shipley depo. pp.51-52). Upon learning that private, for-profit businesses unrelated to commerce, industry and tourism in the area were linked to the web site, Shipley directed that they be removed. (Id.; Shipley Affidavit at Pars. 8-9).

Once Shipley learned what a "local link" was, his initial thought was to limit links to not-for-profit entities. (Shipley depo. pp. S2-54). However, Shipley then decided that the local link policy would be to limit "links" to entities that promote the economic welfare, tourism and industry in Cookeville. (Id. pp. 54-55; Shipley Affidavit Pars. 8-10). Shipley did not want it to appear that the City was endorsing businesses nor dilute the City's messages by cluttering up the site with unrelated information. (Shipley Affidavit at Pars. 10-12). In Shipley's opinion, The Putnam Pit does not meet the criteria of promoting industry, commerce and tourism in the Cookeville area.(3) (Id. pp. S4-55). Thus, The Putnam Pit is not allowed to be linked to the City's web site. (Id.). That is true of The Putnam Pit and all the other local newspapers in the area. (Id. pp.57-58).

Plaintiffs' narrative rendition of their proof of their claims is contained in Plaintiffs' answers to interrogatories, submitted as Defendants' Exhibit 10.


A. Plaintiffs have no First Amendment right of access to the City of Cookeville's computer files.

News-gathering qualifies for only limited First Amendment protection. Branzburg v.
Hayes, 408 U.S. 665, 92 S.Ct. 2646, 2656 (1972). The limited news-gathering right does not guarantee the press a constitutional right of special access to information not available to the public generally. Id at 2658 citing Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 1280-1281(1965). "The right to speak and publish does not carry with it the unrestrained right to gather information." Id. The First Amendment does not require the government to accord the press special access to information not shared with the members of the public generally. Pell v. Procunier 417 U S 817, 834,94 S.Ct. 2800, 2810 (1974); Saxbe v. Washington Post Company, 417 U.S. 843, 850, 94 S.CT. 2811, 2815 (1974) Accord Houchins v. KOED, Inc. 438 U.S. 1, 98 S.Ct. 2588 (1978) (rejecting news media's contention that they had a constitutional right of access to a county jail over and above that of other persons). The Plaintiff in Houchins alleged precisely the same contention as the instant Plaintiffs.

From the right to gather news and the right to receive information, they (Plaintiffs) argue for an implied special right of access to government controlled sources of information. This right they contend compels access as a constitutional matter. 98 S.Ct. at 2593 (emphasis in original). The language of the Court in Houchins was unequivocal:

There is an undoubted right to gather news from any source by means within the law, but that affords no basis for the claim that the First Amendment compels others - private persons or governments - to supply information.

There is no discernible basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information.


There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. The public's interest in knowing about its government is protected by the guarantee of free press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an official secrets act.

Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control. Under our holdings in Pell, Saxbe, supra, until the political branches decree otherwise, as they are free to do, the media has no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.

98 S.Ct. at 2594-2597 (citations omitted).

The only source of governmental information or records which the Supreme Court has held the media has a qualified, limited right of access to is coverage of criminal proceedings. E.g. Richmond Newspapers. Inc. v. Virginia, 448 U.S. 555, 100 S.Ct 2814 (1980). The Sixth Circuit has concluded that the media has a right to access court documents concerning the recusal of a judge and a conflict of counsel, In Re National Broadcasting. Inc., 828 F.2d 340 (6th Cir. 1987), but has never extended this right of access beyond the context of trial proceedings.

Other circuits have held that the right of qualified access to criminal trials does not confer any media right of access outside the criminal justice system El Dia, Inc. v Hernandez Colon, 963 F 2d 488, 495 (1st Cir. 1992). (denying right of access to travel and spending records of governor). See also Calder V. Internal Revenue Service, 890 F. 2d 781, (5th Cir. 1989) (whatever First Amendment right of access the press had to criminal trials, that right did not extend to records of the Internal Revenue Service pertaining to tax investigations of Al Capone notwithstanding that under a prior regulation the documents had been opened for inspection); Capitol Cities Media. Inc. v. Chester, 797 F.2d I 164 (3rd Cir. 1986) (en banc).

The records sought by the media plaintiffs in Chester were of far greater significance than records concerning where city computer users have been browsing on the Internet. The plaintiff in Chester alleged that politically improper considerations led to selective enforcement of environmental regulations causing the outbreak of illnesses, and sought records identifying sewage control violators, permits, citizen complaints, and memoranda generated by technical personnel regarding the investigation. Id. at 1166. Despite the dramatic public health significance of the information sought, the media had no First Amendment right of access to same.

Likewise, in J.B. Pictures. Inc. v. Department of Defense, 86 F.3d 236 (D.C. Cir. 1996), the court rejected the media plaintiffs assertion of a First Amendment right to publicize the return to the United States of the remains of soldiers killed overseas. The media plaintiff's position was rejected as it would require a complete transformation of the law's permissive treatment of restrictions on access to government operations not historically open to the public. Id. at 240.

In the instant case, it is respectfully submitted that Plaintiffs can submit no authority for the proposition that they have a First Amendment right of access to the City's Internet use history files or other electronic data on the City's computers. Plaintiffs have not and cannot prove that the City of Cookeville allows members of the public generally to access electronic data or Internet history files. (Shipley depo. pg. 19; Affidavit of Jim Shipley at Par. 3). This fact, in and of itself, is fatal to Plaintiffs' right of access claim, and ends the analysis.

Alternatively, even assuming the existence of some qualified right of access to non- public matters outside of the judicial process, Plaintiffs cannot establish a right of access to the requested electronic data under the two-tier Richmond Newspapers test. First, there is no long-standing tradition, rooted in history, of access to electronic data and computer Internet history files. Second, Plaintiffs cannot establish that media access plays a significant positive role in the functioning of the particular government process in question. It is respectfully submitted that, if the First Amendment does not provide a right of access to such publicly important and newsworthy documents as a department of environmental resources investigation of a community wide illness outbreak from a public water system, Capitol Cities Media Inc., nor the Internal Revenue Services investigation records of Al Capone, Calder, then, a fortiori, there is no First Amendment right of access to electronic data regarding parking tickets or Internet history files. Accordingly, Plaintiffs' right of access claim should be dismissed.

Further, as set forth in the summary judgment record, Plaintiffs have requested and been allowed more access to the City's public records than anyone. Plaintiffs' relentless demands required the City of Cookeville to draw the line at some point, lest Davidian take over City Hall. The data requested by Plaintiff that is the subject of this suit will not be his "last territorial demand." Plaintiffs have ready access to the parking ticket data in paper, hard copy form, the form in which it is and has been available to the public generally. Accordingly, Plaintiffs' claim of a First Amendment right of access to data in electronic form should be dismissed.

B. Plaintiffs' have no First Amendment right to be "linked" to the City's web page.

Plaintiffs claim they have a right, predicated on "a First Amendment right of an outlet of communications," to be linked to the City's web page. (Second Amended Complaint Par. 28). Plaintiffs' contention fails at the outset because the City's web page is not a forum for public discourse at all. See Arkansas Educational Television Commission v. Forbes, 118 S.Ct. 1633, 1641-1642 (1998). As explained in the deposition and Affidavit of the city manager, and as shown by a sample copy of the City's web page attached to the affidavit, no entity other than the City is allowed to communicate any message at all on the City's web page. The only "speaker" on the web page is the City, which provides information to Internet users about City government services and the benefits and opportunities of the City of Cookeville to residents and potential visitors.

The City does allow the identities only of two entities that promote industry, commerce and tourism in the area to be accessed directly from the City's web page on the "Information" page at the line "Local Links." However, the City does not allow such accessible entities to disseminate any communications or information directly from the City's web page. Thus, the web page is not a forum for speech implicating the First Amendment.

Even assuming arguendo, that the City's web page could be construed as some kind of cyber forum for others' speech, the web page is at most a non-public forum. The City's web page constitutes a publication or property owned by the City of Cookeville which is not by tradition or designation a forum for public communication. Forbes, 118 S Ct. at 1641; Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 46., 103 S.Ct. 948,955(1983).

The First Amendment does not guarantee access to property simply because it is
owned or controlled by the government. In addition to time, place, and manner
regulations, the State may reserve the forum for its intended purposes, communicative
or otherwise, as long as the regulation on speech is reasonable and not an effort to
suppress expression merely because public officials oppose the speaker's view. As we
have stated on several occasions, the State, no less than a private owner of property,
has power to preserve the property under its control for the use to which it is lawfully

Perry, 103 S.Ct. at 955 (quotations and citations omitted). The First Amendment does not require the government to freely grant access to its property to all who wish to exercise a right to free speech without regard to the nature of the property, the nature of the speech or the disruption that might be caused by the speaker's activities. Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 800 - 801, 105 S.Ct. 3439, 3447(1985).

In a non-traditional forum, only when the government has intentionally designated a place or means of communication as a public forum for speakers on unlimited subjects does the forum become a public forum for which the exclusion of speech falls under strict scrutiny. Forbes, 118 S.Ct. at 1641; Cornelius. 105 S.CT. at 3448. The government does not create such a designated public forum by accident, nor by intentionally permitting only limited discourse. Forbes, 118 S.Ct. at 1641.

To create a designated public forum, the government must intend to make the property generally available to speakers. Id. Allowance of only selective access by permission only indicates a non-public forum. Id. at 1641-1642. The allowance of speech linked to a specific subject matter and unsupported by evidence of a purposeful designation for public use, does not create a public forum. Cornelius 105 S.Ct. at 3450, citing Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211(1976).

Thus a speaker may be excluded from a non-public forum if he wishes to address a topic not encompassed within the purpose of the forum, or the speaker is not a member of the class for whose special benefit the forum was created. Cornelius, 105 S.CT. at 3451. The exclusion of speech in a non-public forum violates the First Amendment only when access is denied to a speaker solely to suppress the point of view espoused on an otherwise includable subject. Forbes, 118 S.Ct. at 1643; Cornelius, 105 S.CT. at 3451. See Fair v. Nebraska Department of Social Services, 111 F.3d 1408 (8t Cir. 1997) (en banc), (lawful for government welfare agency to allow certain agencies to communicate information in its lobby to welfare recipients consistent with the organization's mission, such as nutritional and job training information); Bronx Household v. Community School District No.10, 127 F.3d 207, 212-213 (2~ Cir. 1997) (school system not required to allow religious services in school building merely because it allowed other non-educational social, civic and recreational meetings to take place on the premises).

In the instant case, Defendants initially submit that, as a matter of law, the City's web site does not constitute a forum for expression of any kind. The only speech allowed on the City's web site is that beyond the City's own communications from City officials about City business. (Shipley demo. pp. 55-57; Shipley Affidavit at Par. 7). No other speakers are allowed to communicate any message whatsoever. (Id.). Since no other speakers' communications are allowed, restricting Plaintiffs' access to being linked to the web page cannot violate the First Amendment. No construction of the First Amendment would entitle a "speaker" to barge into a government building and disseminate information in areas where the City does not intend such communications to take place. Similarly, the First Amendment does not entitle the instant Plaintiffs to barge onto the City's web page where only City officials' views are expressed thereon.

To the extent that Plaintiffs contend that the fact that the web sites of certain other entities that promote local industry, commerce and tourism can be directly accessed from the City's web page transmutes the City's web page into some type of forum at all, the exhibits submitted herewith demonstrate that such an alleged forum is a non-public forum limited to subject matter of promotion of industry, commerce and tourism within the City of Cookeville. Even assuming that allowing the Upper Cumberland Virtual Community: Cookeville organization and Tennessee Technological University to be "linked" to the City's web site could give rise to an inference that the City intended to create some type of forum for expression by others, the City can lawfully limit the subject matter of such forum to promoting this legitimate governmental role of the City. Fair, 111 F.3d at 1420-1421; Cornelius, 105 S.Ct. at 3451. The First Amendment does not obligate a city that forges such a laudable promotional tool to allow any and all speakers to voice their opinions. Under any other construction of the First Amendment, no government entity or agency could publish a brochure, newspaper, magazine ad or, as in this case, create an informational web site, for purposes of providing information about its operations and promoting the opportunities and benefits the community has to offer, unless it also allowed the Ku Klux Klan, Republican or Democratic National Party or unlimited religious and other organizations to be listed on or included in the City's proprietary, informational medium. Cf Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714 (1974) (First Amendment does not require city to allow political advertisements in city transit vehicles bearing commercial advertising).

After the City created its web site, unknown to Mr. Shipley, various commercial links were established on the City's web site. However, " . . . the government is not required to indefinitely retain the open character of a facility." Cornelius 105 S.Ct. at 3449. The City of Cookeville has made a conscious decision to limit "links" to its web page to the subject matter of the promotion of industry, commerce and tourism in the Cookeville area. This limited, viewpoint neutral use of government property is lawful. Even assuming that allowing entities to be linked to the City's web page transforms its electronic informational brochure into a public forum for expression, the City is not required to allow The Putnam Pit to have access to this alleged forum since The Putnam Pit is not limited to this subject matter, but includes whatever subject areas and opinions that Mr. Davidian cares to espouse. The decision of the City of Cookeville to limit the subject matter of its web site to the promotion of commerce is reasonable in light of the disruptions to the City's ability to communicate its own messages if it were required to allow any and every other operator of a web site to be linked to the City's web site.

Moreover, as was a significant factor recognized by the Supreme Court in Cornelius and Perry, being linked to the City's web site is hardly the only means of contact with a particular audience (here Internet users). Plaintiffs have unlimited access to Internet users through alternative channels, including The Putnam Pit's own web site. Cornelius, 105 S.Ct. at 3542; Perry, 103 S.Ct. at 959. (Davidian depo. pp. 90-91). Internet users readily "hit" The Putnam Pit web site by entering the search term "Cookeville, Tennessee" through any of the commonly used Internet search engines. (Davidian depo. pp.89-91).

Since the City's establishment of a web site does not equate to the creation of forum at all, Plaintiffs cannot establish any First Amendment right to be linked to the web site. Alternatively, even if the City's web site could be equated by analogy to a non-public forum designated for speech about a particular subject matter, limiting "link" access to entities specifically related to the promotion of industry, commerce and tourism in the Cookeville area and excluding "speakers" about other subject matters is reasonable, viewpoint neutral, and affords Plaintiffs unlimited alternative channels of communication. Accordingly, Plaintiffs have no First Amendment right to be "linked" to the City's proprietary web page.

C. Defendant is entitled to summary judgment on Plaintiffs' due process and equal protection claims.

Plaintiffs allege at Paragraph 29 of the second Amended Complaint that the City's rules and regulations restricting Plaintiffs' news-gathering activities equate to arbitrary and capricious bureaucratic loopholes violating Plaintiffs' due process and equal protection rights.

A plaintiff cannot invoke notions of substantive due process where an explicit constitutional amendment or textual provision governs the same governmental action at issue. Graham v. Conner, 109 S.Ct. 1865, 1871(1989). Here, Plaintiffs' claim that the denial of access to records and/or to be linked to the City's web page is arbitrary because the denial violates the First Amendment. Since First Amendment analysis expressly governs the alleged harm at issue, Plaintiffs cannot rely on an amorphous substantive due process theory.

Second, where government action does not deprive persons of a particular constitutional guarantee nor shock the conscience of the court, the action passes constitutional muster under substantive due process scrutiny so long as it is rationally related to a legitimate state interest. E.g. Valot v. South East Local School District Board of Education, 107 F.3d 1220, 1228 (6th Cir. 1997). Plaintiffs bear the burden to show that the challenged action is not rationally related to a legitimate state interest. Id.

Similarly, as respects Plaintiffs' equal protection claim, where government action does not impinge on the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class, the rational basis standard applies. Hampton v. Hobbs, 106 F. 3d 1280, 1286 (6th Cir. 1997); In Re Grand Jury Proceedings, 810 F 2d 580 587 (6th Cir. 1987). Under rational basis scrutiny of equal protection claims, the government action is presumed to be valid, and will be sustained if the classification drawn is rationally related to a legitimate state interest. Valot, 107 F.3d at 1229. Thus, where a media reporter challenged on both First Amendment and Equal Protection grounds a grand jury subpoena, the Sixth Circuit held that no First Amendment right was implicated and upheld the subpoena under a rational basis standard. In Re Grand Jury Proceedings, 810 F.2 at 587. Under this highly deferential standard, a distinction between two non-suspect classes is valid if it is at least debatably based on rational considerations. Id. at 588 (upholding legislative distinction in a shield law that extended a privilege against revealing communications between reporters working in print media but not to those working in the broadcast media); Hampton, 106 F.3d at 1281 (rational basis existed for regulation designed to reduce litigation expenses associated with prisoner lawsuits).

In the instant case, Plaintiffs' second Amended Complaint does not allege what classes of people are receiving differential treatment. To the extent that Plaintiffs allege the denial of public records based on the content of The Putnam Pit or his web site, that issue is currently before the Court with respect to Plaintiff's First Amendment claim in Davidian v. O'Mara. No.2-97-20 (Davidian I). Thus, Plaintiff should not be allowed to re-litigate that issue which has been fully addressed in the Summary Judgment Motion in Davidian I.

As the summary judgment records indicate in both Davidian I and this case indicate, any limited impediments on Plaintiffs' news-gathering activity are rationally related to the legitimate governmental interest of attempting to make insatiable citizen demands for records a manageable task. Plaintiffs' demands for records and employees' time researching same are unique. (Davidian depo. pp.64-66, 82; Shipley depo. pp.7-8; Fowler Affidavit). No one else has imposed similar demands on the time and efforts of Cookeville City employees. Thus, Plaintiff cannot show disparate treatment amongst similarly situated record requesters. Protecting the public fisc, including the labor expense associated with record requests, is a legitimate government interest. Valot, 107 F.3d at 1229. Likewise, the imposition of fee regulations upon recognized First Amendment activity, such as accessing the courts by filing lawsuits, has been upheld in the face of due process and equal protection challenges because they rationally relate to legitimate government financial interests. Hampton, 106 F.3d at 1286-1287. If Mr. Davidian had his way, he would establish a satellite office in the Cookeville City Hall and insist that the City provide him a personal secretary to research City records at government expense. Placing reasonable notice and cost bearing requirements on an individual as demanding as Mr. Davidian is rationally related to the efficient operation of the Cookeville City Hall. Accordingly, Plaintiffs' due process and equal protection claims should be dismissed.

D. The Court should decline to exercise supplemental jurisdiction over Plaintiffs' state law Open Records Act claim and remand that claim to the Putnam County Chancery Court.

Under 28 U.S.C. §1367(c), district courts may decline to exercise supplemental jurisdiction over state law claims if; inter alia, the claim raises a novel or complex issue of state law, all federal claims have been dismissed or, in exceptional circumstances, there are other compelling reasons for declining jurisdiction. A state court is better able to determine whether state law supercedes an allegedly conflicting local ordinance or regulation. Nationwide Mutual Insurance Company v. Cisneros, 52 F.3d 1351, 1364 (6th Cir. 1995) (Wiseman, District Judge sitting by designation). Where a state law claim presents a novel issue of state law, any interest in judicial economy is overridden by deference to the state judiciary. See Id. See also Kauffman v. Allied Signal. Inc. 970 F.2d 178,187 (6th Cir. 1992) (given complexity of question of state law, district court's refusal to exercise supplemental jurisdiction not an abuse of discretion); Doe v. Sundquist, 106 F.3d, 702, 708 (6th Cir. 1997).

Finally, it is within the Court's discretion to dismiss state law claims in the event that all federal claims are dismissed. 28 U.S.C. §1367(3).

District courts have frequently declined to exercise supplemental jurisdiction over state law claims which involve the interpretation of state statutes with few case precedents to serve as guidance. E.g. Williams v. Van Buren Township, 925 F.Supp 1231 1238 (E.D. Mich. 1996). Claims raising issues of first impression under state law are prime candidates for remand even though the Complaint also asserts a federal question claim See Green v. Zendrian, 916 F. Supp. 493, 496-498 (D. Md. 1996) ("This court's obligation to avoid making an unnecessary decision in an unsettled area of state constitutional law was an important factor in this decision to remand the state causes of action to the circuit court for Baltimore City."); Borges v. City of West Palm Beach, 858 F.Supp. 174, 177 (S.D. Fla. 1993) (remanding claims involving novel issues of state law while retaining jurisdiction over § 1983 claim removed to federal court).

Defendants removed this action based upon the federal question presented in Plaintiffs' §1983 First Amendment claim. Defendants believe a federal district court to be the proper forum to resolve this federal question claim. However, with respect to Plaintiffs' claims of a right of access under the Tennessee Open Records Act, that claim presents a novel question of Tennessee law. To counsel's knowledge, only one decision of the Court of Appeals deals with the issue of access to information not maintained in paper format. The Tennessean v. Electric Power Board of Nashville. 1997 Lexus 141, (Tenn. App. No. 01-A-O1-9606-CH-00255). The Tennessee Supreme Court has granted application for permission to appeal in that case. The Tennessean case provides little guidance with respect to the issue of accessibility of electronic data and counsel is aware of no other Tennessee case law on point.

Since Plaintiffs' Open Records Act claim presents a novel issue of Tennessee law with little, if any, guidance from the Tennessee courts, this Court should exercise its discretion to decline supplemental jurisdiction and remand that claim.

E. Plaintiffs' request for injunctive relief to force Defendants' compliance with state law is barred by the Eleventh Amendment.

Although it is unclear if and to what extent the Eleventh Amendment applies to counties and municipalities, nonetheless it has generally been held that federal courts should avoid imposing injunctive relief that would compel state or local officials to comply with state as opposed to federal laws. See e.g. Pennhurst State School and Hospital v. Halderman, 465 U.S. 891, 123-124, 104 S.Ct. 900, 920-921 (1986); Kasper v. Board Commissioners for the City of Chicago, 814 F.2d 332, 342(7th Cir, 1987).

While the jurisdictional bounds of the Eleventh Amendment with respect to the power of a federal court to force compliance by local government officials with state law is unclear, the prudential concerns should not be. Based on federalism principles underlying the Eleventh Amendment and the doctrine of comity, this Court should decline to hear Plaintiffs' request for an injunction seeking alleged compliance with state law.


For each and all the foregoing reasons, it is respectfully submitted that Defendants should be granted summary judgment on Plaintiffs' federal claims, and Plaintiffs' state law Open Records Act claim remanded to state court.

Respectfully Submitted

1. A "Cookie" file is described in the City Computer Manager, Steve Corder's deposition at Defendant's Exhibit 5, pp. 30-34.

2. A sample printout of the City's web page is attached to Shipley's Affidavit.

3. Sample printouts of The Putnam Pit web site are submitted as collective Exhibit S. A sample edition of the printed version of The Putnam Pit is submitted as Exhibit 9.

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