by Brian Wolfman
On January 25, 2013, Steve Schultze of Princeton University spoke about
the fee-based system for access to federal court documents known as PACER. (PACER stands for Public Access to Court Electonic Records.) At a Capitol
Hill event sponsored by the Advisory Committee on Transparency, Schultze said that PACER charges far
more than the actual cost of providing access to federal court records. He
claimed that although the courts collect about $120 million in fees per year,
they spend only a fraction of that on providing the service. The rest, he says, goes to subsidize other things, in violation of the E-Government Act of 2002 and
arguably, in Schultze's view, the Supreme Court's opinions in Richmond Newspapers v. Virginia (which concerned the First Amendment rights of the press and the public to attend trials — in that case, a criminal trial).
Schultze has proposed the Open PACER Act of 2013, which would
mandate no-fee access to electronic federal court records. You can watch the
video of the Capitol Hill event here, or by clicking on the embedded video at the end of this post.
Just some basics about PACER. On PACER, any registrant
who has provided his or her credit card information can obtain filed court documents via the Internet: dockets entries, filings such as
complaints, briefs, and motions, and court orders and opinions. Unless court
material is sealed or redacted for some reason — for instance, social security
numbers must be redacted — it is all there. The price is 10 cents
per page, with any one document free to view and download after the 30th page. That
is, both a 30-page brief and a 100-page brief costs $3.00 to view and download.
But all the attachments to that brief count as separate documents, which,
again, cost 10 cents a page to view and download. (Last year, I filed a motion for summary judgment with over one hundred attachments and an opposition to summary judgment with 58 attachments. So, as you can see, the cost of viewing and downloading some filings can add up.) Judicial decisions are
supposed to be free, but sometimes they aren't. On top of that, the user is charged "per
page" for every search of PACER and for every "page" of the
docket. So, if you are searching for a judicial decision, once you find that decision, it should be (and generally is) free, but getting to it can cost you some cash. According to Schultze, PACER contains over 500 million documents. Buying the whole shebang (or even a substantial portion of the shebang) would not be cheap.
Two reasons I think the records are too hard to access:
1. Understanding and registering for PACER is one of the most-used skills I learned in law school. Non-lawyers don’t know PACER exists, and when they do, they don’t use it. There’s no good reason for that.
2. In my experience at private firms, the government, and non-profits, the differential use of PACER is apparent. Within the firms, no one cares how much you use PACER; within the government, it’s very difficult to even GET a PACER account; within non-profits, you’re asked to be careful how much you download. That creates an unnecessary disadvantage that piles on top of many others.
That would be MY error!
Thanks, Kimm. I’ve corrected by error. I hate antecedent futurity as much as you do! -Brian
Psst – Feb. 25, 2013 has not happened yet.