Providing Electronic Access To Public Records Is 'Expensive' And Other Government Excuses For PACER Fees

from the well,-if-you're-not-going-to-give-it-away,-i-guess-we'll-just-have-to-go dept

Steve Schultze at Freedom to Tinker wants to know why the general public is still being asked to pay for access to public records. Since these records are generated using tax dollars, a person would reasonably expect they would be free to access, especially since they're the ones footing the bill. Of course, reasonable expectations are shattered by government entities daily and PACER is no exception.

As Mike noted in 2011, the fees to electronically access PACER records continue to rise, even as costs drop, leaving most Americans locked out by prohibitive fees (and a less-than-intuitive user interface). Schultze notes that not only are these fees excessive, they very likely are illegal.

[L]et’s review the law. 28 U.S.C. 1913 (note) says:

“The Judicial Conference may, only to the extent necessary, prescribe reasonable fees… to reimburse expenses incurred in providing these services.”

Upon passing the E-Government Act of 2002, Congress noted its intent for the “only to the extent necessary” language:

The Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible. For example, the Administrative Office of the United States Courts operates an electronic public access service, known as PACER, that allows users to obtain case and docket information from Federal Appellate, District and Bankruptcy courts, and from the U.S. Party/Case Index. Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information.

The current fees are unquestionably greater than the cost of providing the services. Since passage of the E-Government Act, the cost of storing and delivering bits of data over the Internet has continued to fall precipitously, and the cost of PACER access has gone up by 42 percent.

To that end, Schultze has drafted a bill entitled the Open PACER Act, which provides for “free and open access to electronic federal court records.” The draft bill is dedicated to the memory of Aaron Swartz (whose “abuse” of a limited-time free access offer greatly helped give the RECAP project momentum) and is open for comment at (Schultze himself assisted Swartz in this venture, putting together the Perl script for automating the PACER downloads. Shultze had plans for a “thumb drive corps” of volunteers to hit multiple libraries and utilize the free access to download millions of documents. However, Swartz struck out on his own, scraping PACER via Amazon cloud servers, leading directly to his first contact with the FBI.)

Now, we all know why we think these documents should be freely available. Now, it's time to hear from the judicial system. Schultze runs through the many reasons the government thinks we should keep on paying, summarized from a list of excuses fact sheet entitled “Electronic Public Access Program Summary: December 2012.” He compiles a list of 10, all worth reading (and mocking), but here are a few of the better (pejorative form) ones.

Excuse #1: “PACER is cheap”

Whether or not PACER is subjectively inexpensive is immaterial. The law says that the fees can only reimburse for the expense of the service, and the courts are charging more than that. End of story. Nevertheless, PACER is — subjectively — expensive. Although it costs “only 10 cents per page,” the system charges not only per page for documents, but per “page” of search results, and per “page” of docket listings. It is easy to quickly run up a huge bill unless you are looking for one particular thing and you know exactly how to find it.

10 cents per page might sound like a standard library charge for printouts or copies, but we're talking about electronic access, where accessing 1,000 pages has no discernible effect on the “cost” of retrieving the documents. And charging per page or search results or docket listings? That's like having a surcharge added to your restaurant check for “accessing” the menu before ordering. The ridiculous search results charge is even more insulting considering how poorly PACER's search function performs.

Excuse #6: “You can always go to the courthouse”

This is a good one. The Administrative Office will tell you that you can go to your local courthouse to access PACER records for free. Well, maybe not “local,” but you can go to the district, bankruptcy, or circuit courthouse and access PACER. Of course, you can only access records for that particular court. You can’t access other PACER records. You also can’t download the records. You can only view them. If you want to print them, that will be 10 cents per page. That’s not legal.


No. Seriously. Dry-as-straight-vermouth-in-the-Sahara “lol,” the sort of laugh hastily assembled from equal parts of disbelief and disgust that inadvertently escapes you blindsided with the least helpful advice ever. Citizen: “I wish to electronically access several public records for free.” Administrator: “Do you own a car?”

Not only is this suggestion utterly worthless, it's the height of bureaucratic obtuseness. Equating “a drive to the courthouse” with “electronically accessing the total of the PACER system on my schedule” is the sort of logic only deployed by someone who wishes to appear helpful but not actually help anybody. To top it off, you can only search that specific location's documents and then MEMORIZE ALL PERTINENT INFORMATION or you're back to 10 cents a page. No downloading allowed. Beautiful.

Excuse #8: “There is a high cost to providing electronic public access”

Here is how the PACER system architecture works: every court runs its own local PACER server, with local support staff and a private leased network link to Washington, DC. Are you a system administrator? Are you an average citizen who has heard the word “cloud” in the past five years? Does this system architecture seem insane? It is. It is even more offensive in light of the fact that the GSA has had, for years, a streamlined government procurement system for cloud hosting. This system is certified at FISMA level 2 security, and is hosted in a “private cloud” for the government, which is good enough for the Department of Homeland Security. It is provided by companies like Amazon at only a fraction higher cost than their commercial offerings. The courts could host all of the PACER services in the cloud — tomorrow — for under $1 million per year. They could allow all of these local system administrators to control their own PACER installations. They could obtain greater cost savings (and security) by further consolidating PACER hosting and system administration. Of course, they feel no pressure to do so when they interpret the law to allow them to charge whatever they deem necessary.

No one's denying there are costs associated with providing electronic access. But a majority of those costs flatten dramatically once the documents are uploaded. Compare that to “driving down to the courthouse,” which ties up however many employees it takes to get you up and running on their local PACER service, not to mention staffers taking phone calls from those unwilling to cough up 10 cents a page for an updated docket listing.

Not only is the complaint about costs ridiculous, but taxpayers are being double-dipped for some of these fees. Taxpayers fund the generation of the documents, and as Schultze points out, PACER's largest users are also government entities. In 2009, the DOJ alone paid over $4 million in PACER fees. That's public money transferring from one government entity to another, while the taxpayer supports both the one handling “Accounts Payable” and the one handling “Accounts Receivable.”

Public access is a noble goal, but the PACER system as it stands now locks out many members of the public with escalating fees and an intimidating, counterintuitive interface. The priority has shifted from public access to making money. Hopefully, another push towards free availability will get the ball (re)rolling. After all, Joe Lieberman (of all people) asked this very same question all the way back in 2009. Four years later we're still waiting for an answer. And the longer we wait, the more we pay.

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Comments on “Providing Electronic Access To Public Records Is 'Expensive' And Other Government Excuses For PACER Fees”

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Anonymous Coward says:

Re: Re:

when the cloud servers went down

Triple the investment for two stages of redundancy through multiple hosting companies. You now have enough redundancy to survive almost all instances that don’t bring the entire internet down (>99.999% uptime even with maintenance). If that happens, then chances are there is a global emergency and court shouldn’t be in session.

You still save $17 Million a year, or $117 off the current revenue stream.

That Anonymous Coward (profile) says:

A common refrain we hear all the time.
We’ve always done it this way, we have to continue doing it the same way.
While RECAP is offering these documents for free, there are courts demanding that users not run RECAP.
One is still left to wonder if LexisNexis is paying 10 cents a page, as they offer full access to the archive via their pay service or do they have an agreement to get cheaper access. Why should a private company get preferred terms but not the public?

It is time that this system be examined and improved. That keeping people on the payroll because that is what we always did be called into question. That the system be updated to reflect the world we now live in, not what it was. The government is inefficient on so many levels, and this is a place where it can easily be repaired and demonstrate that it can be done without having to waste billions getting bids and companies going over budget to make something worse.

Anonymous Coward says:

Re: I wonder...

“he government shows it can’t do anything efficiently”

What’s the alternative … privatized courts? That is a really bad idea. Gov does not have to be inefficient, possibly it becomes that way due to corruption and incompetence which could be addressed but probably will not due to conflict of interest.

Dave Nelson (profile) says:

Menu Access Charges

Perfect! All restaurants in DC should have a $1 PER SECOND access charge for all government employees, from the instant the menu is handed to them to the instant they give it back to the wait staff. After all, printing and disseminating menus is expensive. Government employees will be identified by mandatory RFID tags, carried by all, or, better yet, implanted.

madasahatter (profile) says:

Digital Stupidity

Once the document is in a digital format the costs to distribute are essentially nil. There some costs to digitize (maybe), upload the document, index the site, and generally maintain the site.

The model PACER is using is based on the copier where each page has real measurable costs (paper, toner, collation, binding/stapling, etc.). For me to download a pdf file has lower costs for the supplier and if I ever print the copy all the costs are on me; its my printer, paper, ink/toner, staple, etc.

Jon Frey, Richmond Computer (profile) says:

Government is sneaky

A few years ago, I was involved with an organization, that was lobbying for better use of public funds for rail transit in Philadelphia. The group had sought numerous records from public agencies including a public transit operator and the Philadelphia area’s metropolitan planning organization, DVRPC. The searches were a little more complicated than making photocopies, such as specific e-mail records. As it turned out, the more specific the requests were, the more the agencies complained about cost and their inability to produce the records. Amazing the games government plays to hide the truth.

Anonymous Coward says:

Even “Jurnos”(no not journos) are pirates now. Journalist creates open source solution to extract data from PDFs

There was a time where big datasets could only be handled by big honking hardware only, that is now gone, everyone has the power to process terabyte, even more if you apply distributed databases that are easy to replicate(like a worm replicates itself accross a network).

So like someone putted before, just upload that stuff to the users and they will take care of the rest, how difficult is to release once or twice a year the full contents of that? just upload the dataset and let people mine it for all it is worth it could transform how laws are viewed, it would allow comprehensive study and analysis of how the law is working and people all over would be able to check those strengthening something that is lacking today and it is the base for any functioning government, TRUST.

No instead bureaucrats want to try and extract value from something that only has value if it can be accessed.

Right now it is worthless and harmful, the shadow is the realm of the corrupt and immoral.

purple-x (profile) says:

An easily informed public, one with ready and easy access to information, threatens to undermine the current version of democracy being built around us. An apolitical public is necessary lest those ruled by law gain undue influence over the laws that bind them.

Mobs are one thing but well informed mobs might frighten certain influential circles.

Technically, I’d have to thrown my hat into the torrent solution – seed it and it shall be free

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