The House of Representatives passed a bill Wednesday, over the objections of the federal judiciary, to make access to federal court records free to the public.
By a voice vote, the House passed H.R. 8235, the Open Courts Act of 2020, which aims to modernize PACER (Public Access to Court Electronic Records)—a clunky and frustrating database of federal court filings maintained by the Administrative Office of the United States Court—and eliminate its paywall.
The database has long been the bane of lawyers, reporters, researchers, and citizen sleuths. PACER charges 10 cents a page for searches, court dockets, and documents, capped at $3.00 per document. Users who accrue less than $30 in fees every three months do not have to pay anything, which keeps casual users from being charged. But for others, costs can quickly pile up and there's no alternative. Reason uses PACER on a daily basis to monitor civil rights lawsuits and report on the criminal justice system. As Seamus Hughes, a terrorism researcher who scours PACER for new prosecutions, lamented in Politico Magazine last year, "My work at The George Washington University's Program on Extremism generates a quarterly PACER bill that could fund a coup in a small country."
Even the Justice Department has to pay to use PACER. Between 2010 and 2017, the DOJ spent $124 million on federal court records.
The Open Courts Act would allow courts to still charge high-volume, for-profit users, and collect fees from federal agencies. Any shortfalls could be covered at courts' discretion by increases in filing fees for litigants, "so long as those fees do not harm access to justice," according to a bill summary.
The bill was sponsored by a bipartisan duo, Rep. Doug Collins (R–Ga.) and Rep. Hank Johnson (D–Ga.). "Everyone wants to have a system that is technologically first-class and free," Johnson told The Washington Post.
As I wrote in a 2019 column, under the E-Government Act of 2002, the federal judiciary is only supposed to collect enough revenue from PACER users to cover the operating costs of maintaining the database. Instead, it's turned into a slush-fund for the U.S. court system. PACER has raked in about $145 million annually over the last few years while incurring about $3 million per year in costs.
There have been several lawsuits filed over the past decade challenging PACER fees. In August, the U.S. Court of Appeals for the Federal Circuit ruled that the PACER system was charging users more than the law allowed for access to court records, although it rejected the plaintiffs' more stringent reading of the statute.
The federal judiciary opposes Collins and Johnson's bill, arguing it will significantly increase filing costs for litigants while providing a windfall to the big law firms and companies that accrue the vast majority of PACER's fees. The federal judiciary also argues the legislation will cost at least $2 billion over five years.
However, the Congressional Budget Office released an estimate yesterday that the bill would only cost $9 million over the next decade.
Until the paywall comes down, there are some workarounds. A project called RECAP created a browser extension that, when installed, uploads any court docket or document that a PACER user views to a free website. It also shows you which filings on PACER are already publicly available.
That's a poor substitute for real transparency, though. Public access to and scrutiny of court records is critical to holding our criminal justice system accountable, and those records should be easily searchable, free of charge.