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 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.