A Win for Access to the Courts: National Veterans Legal Services Program v. United States
In 1988, the Judicial Conference of the United States, the entity that governs the Federal Courts, approved the creation of PACER, Public Access to Court Electronic Records. PACER, in conjunction with the later implemented Case Management/Electronic Case Files, known as the CM/ECF case management and electronic filing system, has revolutionized access to federal court documents. PACER has grown with the ubiquity of internet access and it gives judges, lawyers, litigants, and the general public the opportunity to get access to federal court records from their home or office. Prior to the CM/ECF addition, the Judicial Conference charged $1 a minute for dial-up access to PACER which was changed to seven cents per page in September 1998 with the introduction of internet access. The current fees are ten cents a page , but not more than $3 per document, for frequent users.
The Judicial Conference has long been under pressure to explain why they charge PACER fees for access to court documents despite the funding they get from filing fees and congressional appropriations. In 2017 a coalition comprised of the National Veterans Legal Services Program, the National Consumer Law Center, and the Alliance for Justice worked with free legal information advocates to file a class action lawsuit against the government arguing that PACER fees exceeded their statutory authority in 28 U.S.C. § 1913 which permitted, in a statutory note, the government to charge “reasonable fees” for “access to information available through automatic data processing equipment.” District Court Judge Ellen Huvelle ruled that the fees could only pay for costs related to PACER and electronic court records, not other judicial information technology costs.
On appeal, on August 6, 2020, the Federal Circuit held:
Plaintiffs contend that under this provision unlawfully excessive fees have been charged for accessing federal court records through the Public Access to Court Electronic Records (PACER) system and that the district court identifies too little unlawful excess. The government argues that the district court identifies too much (and also that the district court lacked jurisdiction). We conclude that the district court got it just right.
The court interpreted the note to § 1913 as only allowing fee recovery for “expenses incurred in services providing public access to federal court electronic docketing information.” Although this is somewhat broader than just PACER costs, it is much smaller than the $146 million dollar information technology slush fund created from PACER fees in just 2016. The case was remanded for further proceedings.
The federal judiciary needs funding for information technology from a source other than PACER fees, especially during a pandemic. The public needs fairly priced access to court documents. Congress is addressing this problem in the bipartisan Open Courts Act of 2020, H.R. 8235. The bill gives the judiciary several years to update and modernize the program, including adding a search function for the text of the documents, before making PACER access free to the public. It also exempts self represented litigants and those who certify their financial hardship from paying the fees. If this bill is passed, Congress will need to appropriately fund information technology for the federal courts. (RM)
