Multiple Parties (Including The Author Of The Law Governing PACER) Ask Court To Stop PACER's Screwing Of Taxpayers

from the 'free'-as-in-'open,'-but-also-as-in-'no-cost' dept

The US government is either going to end up giving the public free access to court documents via PACER or find a group of legislators willing to extend a middle finger to the public by codifying the ridiculous fees charged to digitally access supposedly public documents.

The government has been sued over PACER fees on multiple occasions. One lawsuit alleged that PACER is miscalculating page lengths on dockets, resulting in thousands, if not millions, of dollars of overcharges. Another lawsuit — currently awaiting review by the Federal Circuit Court of Appeals — argues PACER fees are excessive and violate the law that governs PACER’s existence.

The E-Government Act says PACER fee intake should not exceed the cost of running the system. But as Matt Ford points out for The New Republic, PACER has an incredible profit margin.

The statute authorizes the judiciary to levy fees “only to the extent necessary” to provide “access to information available through automatic data processing equipment.” Though data storage costs have plummeted over the past two decades, PACER’s fees rose from seven cents a page at its establishment to ten cents a page by 2011, which remains the cost today. That may not sound like much, but it adds up fast. The PACER system itself brought in more than $146 million in fees during the 2016 fiscal year, even though it cost just over $3 million to operate.

This isn’t how the system is supposed to operate. This single phrase in the E-Government Act has prompted more than a few lawsuits. And it’s usually met by the government claiming that isn’t what the law means when it’s not arguing screwed PACER users don’t have standing to sue over PACER screwing.

In addition, the fees are supposed to used only for PACER-related stuff. The money is getting spent, but very little of it is directed towards modernizing the archaic online system or finding a way of lowering access costs. Instead, millions of dollars are going to things that don’t appear to be authorized by the law, like touchscreens for jurors or other courtroom tech.

The government continues to argue the law should not be read so narrowly, but it’s going to be facing a lot of opposition in this appeal, including an amicus brief written by the E-Government Act’s author.

In his friend-of-the-court brief, [former Senator Joe] Lieberman argued that the lower court had misinterpreted the law and its intent. He speaks with some authority on the matter, having introduced the Senate’s version of the E-Government Act and overseen its passage as a committee chairman. In his filing, Lieberman warned that excessive PACER fees would “impose a serious financial barrier to members of the public who wish to access court records, and these fees thereby create a system in which rich and poor do not have equal access to important government documents.”

In addition to Lieberman, the list of amici includes dozens of journalistic entities and former judges Richard Posner and Shira Scheindlin — the latter most famous for dismantling the NYPD’s unconstitutional stop-and-frisk program. The Knight First Amendment Institute and the Free Law Project (part of the RECAP project, which mirrors paywalled court documents for free) have also submitted briefs arguing for a stricter interpretation of the law and free access to documents already paid for once by the taxpayers who fund the court system that creates the documents.

If they prevail, the government’s going to be greeted by a long line of taxpayers expecting refunds. The system in place now is needlessly expensive. The cost of accessing court documents should be $0 for all taxpayers — especially since the portal handling requests looks and acts like it cost roughly that much to get up and running. Overcharging and under-delivering is something the government does well, but that doesn’t mean we should be expected to sit there and take it.

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Comments on “Multiple Parties (Including The Author Of The Law Governing PACER) Ask Court To Stop PACER's Screwing Of Taxpayers”

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Anonymous Coward says:

As I understand it, a court has two jobs: to interpret and apply the law correctly, and to strike down unconstitutional laws.

In light of the first, shouldn’t a comment like this from the original author basically act as a trump card? What can be more authoritative an interpretation of the meaning of a law than the author of that law saying "I wrote this and this is what it means"?

Sharur says:

Re: Re:

I believe it is a very good trump card, but not an unbeatable one.

I believe a better trump card would is a majority of the bodies that voted on the law saying "this is what I think it means", or perhaps a large block of those who voted FOR the final form of the law, seeing as laws can be amended and modified many times between authoring and approval.

Of course, the best resolution of this is for the current legislature to pass a new bill that makes the stance of the current legislature explicit (seeing that, in the US at least, any act of Congress (with the sole exceptions* of giving their approval to Constitutional Amendments) can be undone or redone by a later Congress, with the most recent decision standing.

*technically, they also can’t undo Judicial appointments or their role as a presidential "tie-breaker", but Congress has alternative ways of removing people in those positions, e.g. impeachment.

Anonymous Coward says:

Re: Re:

shouldn’t a comment like this from the original author basically act as a trump card?

No. The legislators who voted on the law voted on the text as written, not as interpreted in the drafters’ minds. Similarly, the people who have to obey the law only know what’s written. What you describe would allow sneaky drafters to effectively bypass the legislative process.

(It’s beside the point here, as the written text does not exempt existing records. The police are being disingenuous by claiming it’s a matter of interpretation.)

nancy says:

Here is how to pancy

Authority to commit gross fraud in the united states is unceremoniously given to all those who bear the seal of the united states and a big middle finger to the constitution. The general public can go take a long walk off a short pier if they want. This has to change as its already getting too old and ignorant for the newly informed public that now gets extra education and a lot of thinking time to ponder how to overthrow said government. be ware and fore warned public officials.

Anonymous Coward says:

Yet free access to PACER would harm attorney income, and lead to an explosion of pro-se litigation which we all know is always frivolous if not vexatious.

The entire judicial system is set up to discourage its use and encourage settlement. The public interest would not be served by free access to pleadings. The opinions are already free as far as I know. That’s enough.

OA (profile) says:

Re: Re: 10 cents per page?

$3 million can’t be right. A government agency costing less than ten million a year?

$3m is less than pocket change – the government spends more on bleach for cleaning supplies.

This seems like unuseable, unnecessary and prejudicial commentary.

A good argument could be made to make it a free service with costs that low.

It should be free. It is a service that provides access to public records by a government to a public that it serves and that funds it.

Anonymous Anonymous Coward (profile) says:

It's ours, give it to us, for free, and in a timely manner

In a system that is supposed to be a government of the people, by the people, charging for data owned by the people, whether it is Pacer or FOIA requests or any other data or information held by the government in our name is simply a bureaucratic manipulation to keep data from the people.

The only time information about the government should be withheld from the people, any people, is when it actually has to do with national security (or possibly ongoing investigations, when those investigations are actually ongoing), and then there should be a short sunset (maybe 10 years? or when the investigation is no longer ongoing, or is otherwise blocked) to the hold on that information. Remember that much of what keeps us safe are deterrents that are widely known. If no one knows we have nukes, then they aren’t deterrents, and that information is released publicly in the interest of national security.

The definition of national security should be severely limited and have huge repercussions to those who attempt to misuse it, and all who participate in the misuse or a cover up of the misuse, whether for embarrassment or any other reasons, trivial or not. Ongoing investigations need to have activity, activity that can be demonstration regularly in order to be considered ongoing.

k7aay (profile) says:

Either all taxpayers through taxes, or the litigious by fees

In 2006, PACER for the Bankruptcy Court serving my state (pop. 3.67 mil) ran on a 386 box with analog modems running Solaris. The price was fair then; but if the Administrative Office of the US Courts has moved the files to the cloud, costs will certainly have changed. However, courts were underfunded then, and unquestionably underfunded now. Where’s the money to run courts going to come from? Especially court IT? Either from all the taxpayers through taxes, or the litigious taxpayers through fees.

That Anonymous Coward (profile) says:

If this is what $3 million a year in costs gets you… you’re being ripped off by the contractor.

Perhaps it is time to enact a simple law, that doesn’t let you rob peter to pay paul. People love lower taxes & celebrate because they don’t see the issues it causes.

PD budget to low? Asset Forfeiture!
Fiction – They’ll only use it on drug dealers & bad people so its fine!
Fact – They will extract cash from the poor & "others" no one cares about.

Courts need more things?! PACER!
Fiction – computers are expensive!
Fact – We’re using the cash to modernize somethings without touching taxes, people love us!

We love lower taxes but then scream when the roads are in such horrible shape, we think the gas tax shoudl be enough.

We support lotteries, they make money for the schools!
Its a pity we cut the budget by the amount we imagined would come from lottery sales.

The things we need/want cost money. We’ve lived in this bubble where things can still be paid for while our taxes are cut, but reality doesn’t work that way. Lowering taxes for corporations doesn’t magically make the state richer, it leads to deprioritizing things & cutting back on things. We can’t afford to repave this year, more asphalt!! That bridge only dropped 4 chunks of concrete it can wait a bit longer. Then when it has to be repaired people bitch about the costs… which would have been lower if we hadn’t demanded that $10 drop in our tax rate, which could have paid for maintenance so it wouldn’t get this bad.

But hey we saved money!!!!!

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