As Justice Hugo Black recognized in 1956, “Providing equal justice for poor and rich, weak and powerful alike is an age-old problem.”[1] Part of perfecting equal justice is public access. The right to public access to court proceedings has long been a cornerstone of the judiciary. Typically, any member of the public interested in a certain proceeding simply needs to walk into a courtroom to observe. And the judiciary continues to explore more ways to expand the public’s access to the courts. For example, the Judicial Conference continues to experiment with its Cameras in the Courtroom Pilot Project which makes certain procedures available online for parties, counsel, and the general public. Even with access to the court itself, however, meaningful access still seems incomplete if the public cannot access court records itself, particularly if those documents are locked behind a paywall. The problem is doubly difficult if one cannot find the record is trapped behind an inscrutable maze. And PACER, the current online system to access court records, is certainly no stranger to these and other criticisms. With the House’s passage of the Open Courts Act this past December, Congress it seems, is well on the path to at least addressing some of these concerns.
PACER’s History
In 1988, the Judicial Conference of the United States approved PACER (Public Access of Court Electronic Records), which allowed for online access to court records. PACER was revolutionary at the time of its introduction, and greatly increased the public’s access to court documents. Before PACER, access to court documents, dockets, and other case information was only available at courthouses. Early in PACER’s inception, the courts regularly updated PACER to keep pace with technology. PACER, which predated the widespread adoption of the internet, began as a dial-up service that provided only case and docket information; text documents still were only available at a courthouse. Access was billed per minute, a common payment structure during this time. During the 1990s, more and more features were added, including the ability to view the full text of documents. In 1998, PACER was moved on to the internet, accessible at courthouse terminals, and billing was changed to a per-page basis rather than a per-minute dialup basis. By 2001, users could access PACER via a web browser. By 2007, PACER was nearly universal among the courts.[2]
PACER’s Problems
But PACER is certainly not perfect. Among the chief critiques of PACER is that it is not free. PACER costs $0.10 per page, and the maximum fee varies depending on the type of document. For example, court documents that are docketed such as filings are capped at $3 per document. Search results on the other hand have no max and charge $0.10 per page of search results, and will charge you even if a search returns no results. There are no maximum fees for transcripts accessed on PACER. It does not take much imagination to see that fees on PACER can quickly add up. Meanwhile, the cost of hosting and managing the data has decreased significantly as technology has improved since PACER’s inception, and by law, PACER’s fees are only intended to fund and maintain PACER and its sister electronic case management and filing systems.
PACER’s fees drew increased scrutiny. Eventually, a class-action lawsuit was filed by nonprofit organizations alleging that PACER has been charging more than necessary to cover the costs of providing public access (this case is pending in the United States District Court for the District of Columbia).[3] The Class was certified and on August 6, 2020, the Federal Circuit affirmed the district court’s determination that PACER fees were indeed being used in ways beyond what was authorized,[4]
Compounding the issue is that PACER’s interface is notoriously difficult to use. While there can be no serious critique that PACER made court documents much more accessible, PACER has not kept up with the times. Many practitioners have experienced the frustration of searching for a particular case on PACER. For example, PACER does not have a text searching option, and the keyword search functionality is limited. A user cannot search by judge or subject matter. Further, each district has its idiosyncratic naming convention for cases. These complaints about PACER are not new—PACER has remained mostly the same for at least a decade. While other search systems have become more streamlined and efficient, it seems PACER has been left behind.
These difficulties can have profound practical effects for a member of the public using PACER. For example, to find a document, typically, a user would first have to search for the case. To search for a particular case, a user must search with particularity. And even when a user knows the name of the case, simple formatting or quirks of naming conventions could frustrate a particular search. A missing semi-colon or between “In re:” and the rest of the case name could result in 0 results. And even a search that returns no results costs $0.10. Should a search returns results, the user is charged $0.10 per page of search results, even if none of the results are relevant. Once a user finds a case they are interested in, for each document they view, they are billed $0.10 per page up to a max of $3.00 (or 30 pages).
PACER’s functionality is often frustratingly inscrutable to lawyers, let alone non-lawyers. Academics, journalists, researchers, and other members of the public rely on PACER to find court documents. Indeed, for some court documents, PACER may be the only location to easily access them. Whereas services such as Westlaw or LexisNexis may collect many court documents, others are not deposited there, not to mention that such services may be prohibitively expensive for members of the general public. Consequently, PACER’s cumbersome system combined with potentially rapidly accruing costs can and does deny access to court documents to many members of the public.
The Open Courts Act
Legislation is pending in Congress that would address PACER’s lagging functionality and its costs to users. On December 8, 2020, the House approved the Open Courts Act of 2020[5] with bipartisan support, which would require the Administrative Office of the U.S. Courts to create an electronic system for public court records that would be publicly accessible for free in place of PACER. The bill would mandate the creation of a new modern system for access to court records. And the bill ensures that access to this new system will largely be free to all but the highest volume users. While the Senate was in a lame duck session, it is likely the Open Courts Act or a similar bill may crop up again soon.
Unsurprisingly, criticism has centered around the cost. Critics of the bill, including the Administrative Office, largely say that it will be expensive to implement and that this new system will have the unintended consequence of depriving the judiciary of resources which would then result in denying access to the courts. Estimates of the cost of the bill, however, vary widely. The Administrative Office estimated it could cost at least $2 billion to build the new system. The Congressional Budget Office meanwhile estimated the cost would be around $46 million. Technologists representing the Electronic Frontier Foundation, Free Law Project, and others estimate a cost of about $10 to $20 million to build the new system and $3 to $5 million annually to maintain it.[6] While these varying cost estimates likely warrant further study, the goal is noble. And it is encouraging that Congress is responding to past critics calling for legislative action to allocate funds to the judiciary to modernize its electronic access. Regardless of the monetary cost, the goal of bringing PACER into the 21st century and ensuring free access to the lion’s share of users is a concept that even non-lawyers should be able to get behind.
Authored by Christopher Young, Esq.
[1] Griffin v. Illinois, 351 U.S. 12, 16 (1956).
[2] See generally 25 Years Later, PACER, Electronic Filing Continue to Change Courts, United States Courts (Dec. 9, 2013), https://www.uscourts.gov/news/2013/12/09/25-years-later-pacer-electronic-filing-continue-change-courts.
[3] Nat’l Veterans Legal Servs. Program v. United States, Case No. 16-cv-00745-ESH.
[4] Nat’l Veterans Legal Servs. Program v. United States, 968 F.3d 1340 (Fed. Cir. 2020).
[5] H. Rep. 8235.
[6] Notably, these same technologists note that the costs to store and retrieve data have dropped 99.9% since PACER went online in 1998.