For most of the nation’s history, the most common way to read court filings was to travel to the courthouse itself, pull up a desk in the clerk’s office, and leaf through them by hand. This was hardly a convenient system, especially if you lived in a far-flung rural area or lacked the resources to travel to a nearby courthouse for the task. But it was still an impressive one. Public access was a core principle of the American federal judiciary, which absorbed both the Founders’ disdain for secretive British courts and their belief in the democratic virtue of open legal proceedings.
Then came the Public Access to Court Electronic Records system in the 1990s. In theory, the federal courts’ electronic docket system—known universally as PACER—allows anyone with an internet connection to call up the motions, briefs, orders, and appendices for virtually any federal court case. The interface has not evolved with the times. In an age of sleek, minimalist web design, PACER is a clunky and nonintuitive portal into the courts’ inner workings. What’s more, it’s overcharging its users.
Now a medley of legal advocacy groups, media outlets, and former politicians and judges are asking the Federal Circuit Court of Appeals to rein in excessive PACER fees. Some of the organizations argue that the current payment structure violates federal e-government laws that prohibit unnecessary fees. Others see the fees as a threat to judicial transparency and openness. What’s ultimately at stake is the ability for Americans—including journalists and defendants—to fully participate in the nation’s legal system.
Three legal nonprofit groups—the National Veterans Legal Services Program, the National Consumer Law Center, and Alliance for Justice—filed a class action lawsuit against the federal government in 2016 to challenge PACER’s fee structure. They argued that by charging more than the marginal costs to keep the system functional, the judiciary had run afoul of a federal law dedicating PACER’s fees solely to that purpose. “Instead of complying with the law, the [federal judiciary] has used excess PACER fees to cover the costs of unrelated projects—ranging from audio systems to flat screens for jurors—at the expense of public access,” they told the district court in 2016.
The case hinges on a single phrase in the E-Government Act of 2002. 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.
“Anyone who wants to be able to access the documents that are essential to understanding the way our court system works has to pay these fees,” Brianne Gorod, the chief counsel at the Constitutional Accountability Center, told me. The organization filed a friend-of-the-court brief on behalf of former Senator Joe Lieberman, the 2002 law’s original sponsor. “What that means is that one’s ability to access these documents—to read the briefs that the courts use when making decisions, to understand why courts are doing what they do—is going to turn on one’s financial situation.”
The government countered that Congress gave the courts broad discretion to levy fees that would fund the judiciary’s entire slate of public access services. “Notably, this authorization makes no mention of PACER,” Justice Department lawyers told the district court. What did those funds go toward? Between 2010 and 2016, the judiciary spent $185 million in PACER fees to fund a variety of improvements to courtroom technology; $75 million went toward automated notices for creditors in bankruptcy cases during that same time period; and another $3.5 million funded Violent Crime Control Act notifications to local law enforcement agencies.
Last March, federal judge Ellen Segal Huvelle took a Solomonic approach. She refused to endorse the government’s sweeping interpretation of the E-Government Act or the plaintiffs’ narrow version. Nonetheless, she ruled that some of the judiciary’s expenditures went beyond what Congress had authorized. Using PACER fees to fund electronic filing access for lawyers and send out automated bankruptcy notices survived scrutiny; expenditures like a web portal for prospective jurors and a study on electronic filings in Mississippi state courts did not. The plaintiffs and the government both asked the Federal Circuit Court of Appeals to review the decision.
In his friend-of-the-court brief, 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.”
Media organizations also warned that PACER’s fee structure undermined journalists’ ability to report on legal affairs. The groups, which included news outlets like The New York Times, Politico, and BuzzFeed, raised First Amendment concerns about the system’s effect on public access to the courts. Digital journalism’s dire financial straits—another troubling sign for American democracy—made the situation even more acute. “In this environment, many news outlets simply cannot afford large fees for court records,” the groups told the court in their brief last week.
A group of former federal judges, including prominent jurists like Richard Posner and Shira Scheindlin, went even further. In a friend-of-the-court brief filed earlier this month, they argued that PACER should charge no fees at all, citing the need for judicial transparency and the benefits for researchers, journalists, and prisoners who represent themselves in court. “Given the public’s strong interest in accessing court records, the judiciary should bear the cost of PACER’s operations,” the brief said. “This is consistent with the courts’ longstanding tradition of providing free access for all who come into the courtroom.”
The Federal Circuit has yet to schedule a date for oral arguments in the case, and a final ruling may not come until next year. If the plaintiffs prevail, PACER users who accessed the system between 2010 and 2016 may see some of their expenses refunded by the federal government. Until then, PACER will keep building a wall between Americans and the public records that they have a right to access, nickel by nickel and dime by dime.