Nickled and dimed: Fees can put federal court records beyond the public’s reach
By Rachael Jones, Legal Fellow
Ten cents really doesn’t seem like a whole lot of cash when you think about it. In a time when public records requests can sport price tags of up to $30,000.00 or more, seeing a rate of ten cents per page appears to be a downright steal. A cost of $2.00 for a 20-page report? Score! Right?
I’d say “wrong.” Recently, I saw a tweet from a colleague that explained he had already racked up a $500.00 in PACER fees for legal, academic research with no end in sight. If you’re researching a court case with a lot of 30-page briefs and attachments, those dimes can start to pile up.
Public record fees are supposed to bear some relation to the government’s actual cost of making them available. In many instances, this requires an agency or court employee to locate hard copies of documents, scan them, ensure they are properly digitized, sort them into proper files, redact any confidential information, and then release them to a requester. Because the work can be time consuming, it is understandable and accepted that a reasonable fee may be necessary to compensate government employees. But what about systems where the records are digital at the outset — like attorneys’ pleadings and judges’ opinions? What about systems where the digital records are already organized, with “confidential” or “sealed” material pre-identified? Can any agency really expect requesters to pay for records that are maintained and even disseminated by digital software — meaning there is no need for employee compensation to procure and disseminate records? Especially court records?
Unfortunately, the answer is yes. Welcome to the world of PACER, Public Access to Court Electronic Records.
PACER brings in a whopping $145 million annually to the federal judicial system. While some estimate that the site costs around $3 million to run and manage each year, across the board the costs associated with technology for sites like PACER have drastically decreased in recent years. Further, many (if not all) court records are subject to digital submission and filing; this means that most records are digitized from the moment of creation within the court system.
It seems preposterous for the judiciary to charge for access to records when the actual overhead is so low, thanks to innovations in records management technology and the format of the records themselves. Granted, PACER does, by law, maintain the right to charge a basic fee to cover the “services rendered.” And historically, too, the site has capped fees to $3.00 per document and does not necessarily charge a user until the quarterly bill reaches above $15.00. However, these caps do little to offset the bill when a requester needs to access an entire case file, or multiple case files for that matter. It also does not ameliorate the often debilitating fees that disproportionately affect the news media and unrepresented pro se litigants.
Based on the E-Government Act of 2002, the judiciary should charge for records only to the “extent necessary.” In a totally digitized system, such as the federal courts, this means that software carries the bulk of the work. Today, cases are filed electronically through a digital case management and electronic case files system (CM/ECF). Digital copies of briefs, complaints, dockets, etc. are all available within the federal system as prepared and filed by the parties. Thus, the work of digitization is done before the judiciary ever sees the documents that become court records. The CM/ECF sorts the documents based on the case number. Thus, it is nearly impossible to justify fees for PACER when the judiciary’s overhead in maintaining court records is so low — especially in comparison to its revenue. Dime-a-page fees are especially indefensible as technology continues bringing the cost of maintaining such a site even lower.
Judicial information is inherently of interest to the public. Court records allow society to understand the proceedings of the courts, to discuss important cases, and to engage in oversight of the judiciary (especially as the appointment of federal judges has become a contested national political issue). The public has a well-recognized right of access to court documents and proceedings under the common law and the First Amendment. The fee scheme in currently in place not only misses the mark in fulfilling these rights, but also thwarts access to many by creating a “pay to know” system. The fact that PACER requires fees at all in this digital era is open to debate; the fact that those fees exceed the very minimal expense of hosting already-digitized documents is shameful.
Luckily, there is a significant challenge to PACER’s fee schedule churning in a federal appeals court. Earlier this year, a class-action lawsuit led by a trio of nonprofits, including the National Veterans Legal Services Program, sought to recover fees from the judiciary based on the argument that the fees were a “systematic overcharge” for information. The nonprofits argued that the Administrative Office of the the Courts exceeded the “necessary” costs that federal law allows.
A U.S. district court disagreed. Although the judge found that the government is spending PACER fees on projects not directly related to the cost of providing access to the documents — $185 million from PACER fees went to modernizing courtroom technology, a worthy expense but not one caused by people using PACER — the judge found that there is no statutory prohibition on the courts charging fees that exceed the cost of offering the service.
The nonprofits appealed, arguing that the excessive fees “inhibit public understanding of the courts and thwart equal access to justice, erecting a financial barrier that many ordinary citizens are unable to clear.” Further, the nonprofits call out the court’s Administrative Office for using the excessive PACER fees to improperly subsidize other projects. The appeal is still pending before the Court of Appeals for the Federal Circuit.
With any luck, the Federal Circuit will come down with an opinion that reiterates the right of access and clarifies to the judiciary what constitutes any “extent necessary” when considering PACER charges. In the meantime, alternative methods for funding PACER should be explored to further tamp down the need to overcharge.
At a minimum, Congress and the judiciary should remain cognizant of the right of access to court records and make that right a priority, even if it means sacrificing the remarkable revenue from PACER. Its improper and immoral for the assessment of excessive fees to continue. And that’s ten cents for my thoughts on PACER.
Attorney Rachael Jones, a graduate of UF’s Levin College of Law, is a legal fellow with the Brechner Center for Freedom of Information.