The Volokh Conspiracy
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Free PACER! (Or At Least Free PACER Docket Searches)
The judicial conference endorses making PACER searches free for non-commercial users.
The Judicial Conference of the United States has endorsed ending fees for online docket searches through PACER, at least for noncommercial users. Charges may continue for downloading documents, however.
Here is the relevant language from the Judicial Conference's report on the Conference's March proceedings:
The judiciary provides electronic public access to court documents primarily through the Public Access to Court Electronic Records (PACER) service, which, pursuant to Public Law No. 102-140, is funded by electronic public access (EPA) user fees set by the judiciary. Congress does not appropriate funds for the operation of the PACER service. Except in limited circumstances, PACER users are charged a per page fee for searches, with no fee owed unless a PACER account holder accrues charges of more than $30.00 in a quarterly billing cycle (JCUS-SEP 2019, p. 9). The Committee on Court Administration and Case Management considered feedback from the Administrative Office's EPA Working Group on the feasibility of the Committee's proposal to make PACER searches free for non-commercial users. Noting that making searches free would require extensive development work to the current PACER system and all operational versions of the Case Management/Electronic Case Files system (currently 17) and impact several aspects of the EPA program, including fee revenue, program requirements, and system performance, the Working Group recommended that the Committee endorse making searches free for non-commercial users in any future modernized systems. After considering this feedback, the Committee on Court Administration and Case Management recommended that the Conference endorse making all searches free of charge for all non-commercial users of any future new modernized case management, electronic filing, and public access systems implemented by the judiciary. The Conference endorsed the proposal.
This change has been a long time in coming. As Reuters reports, the move comes as Congress is considering even more far-reaching reforms to increase access to federal court filings and materials.
The plan to eliminate some, though not all, of those fees and modernize PACER came as Congress considers whether to pass the Open Courts Act, a bill that would require the judiciary to update PACER and make downloading filings free for the public.
The Senate Judiciary Committee in a bipartisan vote in December advanced the bill to the full Senate for its consideration. The U.S. House of Representatives during the last Congress passed a similar bill in 2020.
The judiciary has raised concerns about the bill's impact on its own efforts to modernize PACER and how eliminating user fees would affect revenue to support it. The judiciary projects it will collect about $142 million in fees this fiscal year.
A cynical read would be that the Judicial Conference is acting so as to forestall more sweeping legislative reforms. Whether this is the cause or not, eliminating fees for PACER docket searches is a positive and long overdue step.
