In September, the House Judiciary Committee passed the Open Courts Act of 2020 (H.R. 8235) by voice vote. The bipartisan bill—co-sponsored by Rep. Hank Johnson (D-Ga.) and Rep. Doug Collins (R-Ga.)—seeks to knock down the current paywall around public federal court filings.
Today, the federal judiciary maintains online public court records, called the Public Access to Court Electronic Records system (PACER, for short). But, to view these records, PACER forces users to register for an account, provide credit card information, and then charges users 10 cents a page to download and view most public filings.
A paywall around public court records causes numerous problems. Not only is the PACER system outdated and challenging to navigate, but a paywall around public court filings also disadvantages indigent and pro se litigants and makes it difficult for researchers and journalists to gain comprehensive and accurate information about our federal courts.
The bipartisan Open Courts Act would ultimately make PACER free, allowing greater access for litigants and more research opportunities for researchers, journalists and nonprofits. The Act would also modernize the outdated PACER system, making it easier to search for records and public information.
But on Friday, the Washington Post reported  that the Administrative Office of U.S. Courts—an administrative agency within the federal judiciary—has come out against the current bipartisan version of the bill, even having federal judges “[call] lawmakers to express their concerns.”
What is the problem? First, according to the Director of the A.O., making public court records free “would be a ‘financial windfall’” for legal-database companies like Westlaw and LexisNexis. Second, the A.O. claims reforming PACER is too expensive, costing “at least $2 billion over 5 years.” Last, the A.O. argues that any appropriations gaps could lead to increasing filing fees, serving as an “outright barrier” to plaintiffs filing in federal court.
The A.O.’s concerns are misplaced and ignore the reality that the federal courts make nearly $150 million  a year by charging the public to access public court records on an outdated online system already funded by taxpayers.
First, the Open Courts Act is not a “financial windfall” to large, legal-database companies. Quite the opposite. According to a group of small, legal-research developers, the status quo offers a much greater competitive disadvantage. In a brief  before the U.S. Court of Appeals for the Federal Circuit, the group explained that PACER fees “stifle competition in the legal research market, hinder the development of tools that would improve the practice of law, and curtail affordable access to justice.” With equal access to the same public information, “An entire ecosystem of legal technology startups would crop up,” creating more competition and offering consumers better and more affordable legal tools.
Next, the A.O.’s estimates that modernizing an electronic public court records system will cost $2 billion should raise an eyebrow. In a recent letter , several former government technologists and I.T. experts explained that “under no circumstances” creating a new system envisioned by the Open Courts Act would cost what the A.O. claims. Instead, they estimate the new system would only cost $10-$20 million over three years to build. This modernization is also a wise long-term investment. After all, “costs to store and retrieve data [have] dropped 99.9% since PACER’s 1998 debut.” The Open Courts Act “will cost taxpayers a fraction of what the judiciary currently pays to maintain the status quo.”
Last, the A.O. misstates how the Open Courts Act is funded. To modernize PACER, the Act will temporarily charge “power users” similar fees as the judiciary has before. Once a new online system is developed, it is estimated  to cost $3-5 million annually to maintain. The bulk of this cost will be paid by having the judiciary continue to collect fees from federal agencies. (In 2017, for example, the DOJ paid  nearly $4 million in PACER fees.) In the unlikely instance of a significant gap in appropriations, the bill envisions the A.O. cooperating with Congress to determine whether supplemental appropriations may be necessary, including nominally increasing filing fees on well-resourced plaintiffs.
To put it simply: public court records should not be hidden behind a paywall. The Open Courts Act not only makes public court records free, but it modernizes a system that will improve searches and offer greater and more affordable legal tools in the marketplace.
Congress should be commended for its interest in making court records free and more accessible. Even better, this is a bipartisan pursuit. The Open Courts Act breezed through the House Judiciary Committee, and Senators on both sides of the aisle—including Sen. Rob Portman (R-Ohio), Sen. Ron Wyden (D-Ore.), Sen. Ted Cruz (R-Texas) and Sen. Mazie Hirono (D-Hawaii)—have introduced similar legislation .
The federal judiciary should not get in the way of such vital legislation.
Image credit: BCFC
- “reported”: https://www.washingtonpost.com/local/legal-issues/judiciary-opposes-free-online-court-records-database/2020/12/03/02b10a3c-357f-11eb-b59c-adb7153d10c2_story.html
- “$150 million”: http://guptawessler.com/wp-content/uploads/2019/01/FY-2018-Judiciary-Reporting-Requirement-on-PACER-July-2018.pdf
- “brief”: http://www.pacerfeesclassaction.com/Documents/FED/USN%20FED_31.pdf
- “letter”: https://free.law/pdf/letters/letter-from-technologists-to-judicial-conference.pdf
- “estimated”: https://free.law/pdf/letters/letter-from-technologists-to-judicial-conference.pdf
- “paid”: https://free.law/pdf/doj-pacer-totals.pdf
- “similar legislation”: https://www.congress.gov/bill/116th-congress/senate-bill/2064/text