Federal Court System Pushes Back Against Free Access To Court Documents

from the your-tax-dollars-hard-at-work-demanding-more-tax-dollars dept

Never underestimate the desperation of a government entity being asked to manage its money better. After years of mismanaging the millions of dollars the court system rakes in every year, the federal judiciary has believed for years that "free and open access" to court documents should be way less than free. The court's PACER system puts a paywall between citizens and court documents. On top of this, it places an antiquated front end that further separates citizens from court documents, charging them per page of useless search results.

The PACER system has been a frequent target of litigation and legislation. Unfortunately, these efforts haven't resulted in an overhaul of the system. The system continues to treat infinite goods as paper documents, charging users per page of downloaded PDFs or docket listings. It also charges per search, allowing the system's far-from-useful search functions to generate revenue for the courts. The money from PACER was supposed to make PACER better and lower the cost of usage. Instead, it has been used to buy furniture and flat screen TVs for those fortunate enough to live within walking/driving distance of a federal courthouse. As for everyone else, the government collects up front and provides very little in the way of improvements for telecommunicators.

Legislators are once again pushing for the system to be free for most citizens. And the courts are pushing back, claiming being unable to charge per page fees would irreparably harm the recipients of these fees.

Leaders of the federal judiciary are working to block bipartisan legislation designed to create a national database of court records that would provide free access to case documents.


James C. Duff, director of the Administrative Office of the Courts, has asked House leaders not to schedule a vote on the bill that he said would require a hefty increase in court filing fees to pay for a “massive, untested, disruptive, and costly overhaul.”

“The idea of making it free for everyone is certainly attractive, but it’s not free,” Duff said in an interview.

Duff is right. It isn't free. Taxpayers pay judges and clerks to generate documents. Taxpayers front every civil and criminal action the federal government gets involved with. Citizens also pay filing fees when they engage in private litigation. So there's plenty of money flowing into the system. But the system seems to believe this should be a one-way stream of revenue that provides almost no benefits to those funding it.

James Duff seems to believe the "costs" of providing PDF downloads for free should be "offset." And he's asking taxpayers to continue offsetting the costs of documents they've already paid for. Somehow Duff has talked himself into believing filing fees would skyrocket, preventing people the court system is already screwing with PACER fees from utilizing this avenue of redress.

Duff said higher fees for litigants in civil and bankruptcy cases could represent an “outright barrier to seeking relief in the federal courts.”

LOL but no. Plaintiffs who can't pay the fees can ask the court to waive their fees. It's not impossible for poorer plaintiffs to file lawsuits. This disingenuous complaint misrepresents the fact that most plaintiffs do not ask for waivers and are willing to pay fees to litigate in federal courts. The litigants who most often seek fee waivers are federal prisoners, a taxpayer burden few government officials ever find time to complain about.

Duff also sees himself as the great equalizer, even if protecting the PACER status quo will continue to negatively affect our nation's poorest citizens. According to Duff, free access to all will make corporate fat cats even fatter.

A free database, he added, would be a “financial windfall” for the large banks, legal-database companies and research institutions that currently fund 87 percent of the costs of the online court records service.

First off, it seems like the judiciary could continue to collect fees from PACER "whales," much in the way many free internet services do. Second, this refusal to allow free access to millions doesn't suddenly make things "fairer" for them just because the judiciary isn't willing to engage in corporate welfare.

Not only is the judiciary wrong about the pros and cons of free access, it's also wrong about how much free access would actually "cost." The judiciary says it will cost at least $2 billion over the next five years to give citizens free PACER access. Legislators and researchers say it will cost far less: ~$2 million/year. That's an unnoticeable drop in the federal judiciary budget bucket. The judiciary wants $7.65 billion to cover its costs next year. It seems unlikely anyone would miss a 0.026% budget shortfall.

That makes this statement from Judge Reggie Walton (formerly of the FISA Court) unintentionally hilarious.

U.S. District Judge Reggie Walton in Washington said court proceedings and documents should be transparent and accessible. But if Congress mandates the creation of a new, free database of records, lawmakers have to provide the funding. He is concerned about the financial impact on the court’s day-to-day operations.

Whew. Can you imagine trying to do without 0.02% of your yearly budget? You might have to use a coupon on something a few times a year.

This pushback against free access is nothing more than the government feeling it should be able to maintain a wall between what it does and the people that pay for it. The federal judiciary is showing its entire entitled ass. Citizens should have free access to court documents. They've already paid for them once. There's no reason the government should continue to pretend it's the petty librarian manning the Xerox and charging visitors $0.10/page for photocopies. All we're asking is for the judiciary to recognize it shouldn't place a paywall between taxpayers and infinite goods. But, according to courts, this is something we don't deserve and aren't entitled to ask for.

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Filed Under: access to court documents, court documents, federal courts, judges, judiciary, pacer, paywall

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  • identicon
    Anonymous Coward, 7 Dec 2020 @ 10:01am

    Pacer seems to be a branch of some US federal agency, and it also seems to be making a profit.

    I'm not sure that a for profit government is such a good idea.

    reply to this | link to this | view in chronology ]

  • identicon
    Mathfox, 7 Dec 2020 @ 10:18am

    Google it

    Why not dump the whole PACER database at Google and have them host it, index it and make it searchable... It will be as good as free for the federal government, free to search by the world. Advertisements will pay for it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 7 Dec 2020 @ 10:26am

    To Prove it...

    To prove it has nothing to do with free and open access, and all about making users pay - I bet they also forbid any Pacer equivalent of SciHub, where those who did pay capture the results and post them for free for everyone else.

    reply to this | link to this | view in chronology ]

  • icon
    virusdetected (profile), 7 Dec 2020 @ 10:40am

    This is absurd. If they want to make a profit, do what MathFox suggests, turn it over to Google, and ask Google for a small percentage of the advertising revenue. Everyone wins.

    Congress is to totally dysfunctional that we cannot count on them to fix this atrocity. How else can we force something to happen?

    reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 7 Dec 2020 @ 10:55am

    Well, if they need more money...

    ... they could add a "carbon copy paper" fee for every copy downloaded...

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 7 Dec 2020 @ 12:26pm

    Lets risk it...
    Lets do a public private partnership with RECAP and see how that works out.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 7 Dec 2020 @ 4:40pm

    what to protect?

    For all the digital age, The court system seems abit Backwards, and even the gov. tends to be worse for wear.

    Everything in court is Audio recorded, then transcribed to text.
    If taken to MP3 and TXT/RTX formats, I would be all the last 200 years would fit on 5 terabytes.
    The problems tend to be the number of files, and windows sucks at that. Linux isnt TO BAD. 64bit Linux would be very good.

    But for strange reasons, many agencies use Oddball Outdated programs to do the work. And converting it would take years.

    Now if this Record and transcribe is done Simply and its ready as soon as court is done, or 1-2 days later(think this is the problem) it can be added very easily. IF they have to handle and do all the owrk to GET and transcribe the data, thats abit of work.
    HOw many people in this office? And what are all their jobs to get 7.6 billion? That could feed allot of people on $40k wages. At $100k wages its not enough.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Dec 2020 @ 4:57pm

    Well hey there!

    Wikipedia reports that three non-profits filed a class action on the issue of PACER fees, and won in March 2018. (If they won, it was only a bittersweet victory, since their own summary judgement motion was denied.)

    What parts the government lost (their summary judgment motion was denied too ... but only mostly), they then appealed. The case has sat for two years in the docket for the Federal Circuit Court of Appeals, essentially untouched. Wonder if the circuit court is slow-walking this....

    Even then, the government is appealing a ruling on a summary judgement motion. 4 years in the court system, and there's been no final judgement.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Dec 2020 @ 8:49am

    Pacer isn't the only one

    Just in the past 6 months a local county (who shall remain nameless) has FINALLY allowed electronic access (download pdf) to records.

    However, this county has done Pacer one better (aka worse), the local county charges 50 cents a page for a downloaded PDF document!

    To be fair, the system does cost money and needs to be funded. Servers cost money, electricity costs money. Also, the scanning of hard copy documents to PDF takes staff time which is a cost. Internet access itself costs money. Thus, there is a cost to electronic documents. Even after the PDF's are created, backups need to be kept, storage needs to be maintained and updated (even SSD's go bad eventually).

    Yes there can be electronic submission, but the cost in that is shockingly large. Good IT people aren't cheap. Also, what good, talented and trained IT person is going to be willing to put up with the disdain which lawyers and judges so skillfully dish out to inferior staff types. I put it that electronic submission of documents to the court/legal system is a disaster in the making.

    Exactly how to fund the system, and the true cost, is really the question.

    A reasonable person may accept that the initial costs are inflated to cover the fixed infrastructure needed to start an electronic access system. However, a reasonable person would hold legislators, et al, accountable in that after the initial investment is covered then the costs should be adjusted downward to only cover the cost of operations. A reasonable individual will likely see government, at any level, to be a non-profit organization.

    In the case of the unnamed county, the county apparently hired a corporation do do the work, rather than in house. Not a bad idea, if there there is a provision in the contract to adjust the cost later. If the cost is "all the market can bear" as determined by the contracted corporation, then there needs to be some new county commissioners!

    Our tax dollars in action

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 8 Dec 2020 @ 4:19pm

      Re: Pacer isn't the only one

      Bet they signed a contract for a Long period of time rather then a Yearly eval.
      That the corp isnt responsible for loss of data.
      And that they Pay an hourly of $40+ per person, per hour, per day.
      And only pay $15-20 to the persons monitoring the systems.
      Why not pay a Kid thats into computers, his way thru College and servers and security. And $10 per hour. then give him a 5 year contract, evaluated every 5 years.

      reply to this | link to this | view in chronology ]

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