Lawsuit aims to tear down paywall to public court filings

• A lawsuit aims to strike down the federal judiciary’s PACER system policy of charging substantial fees to access public court filings online.
• The class action lawsuit was brought by a group of nonprofits that say the system’s fees “inhibit public understanding of the courts and thwart equal access to justice.”
• News organizations, retired judges, civil rights groups, and a former senator who sponsored the law in question in the case have voiced support for the plaintiffs.

Public access to court filings has long been one of the core values at the heart of the United States’ federal judicial system. For most of our history these documents have indeed been made publicly available, provided one was able to travel to a courthouse. At the time of the United States’ founding, this was a remarkably transparent system, especially in contrast to the more secretive British courts that the founders disdained in favor of open legal proceedings.

With the advent of the personal computer and the Internet, the federal judiciary created the Public Access to Court Electronic Records (PACER) system in the mid 1990s. This electronic docket system for federal courts allowed anyone with an Internet connection to access the motions, briefs, orders, and appendices from practically any federal court case.

In one sense, PACER lowered the barrier to access court filings because individuals no longer needed to go to a courthouse, but the system — and its policies — have not been modernized over the past two decades. Today it continues to charge 10 cents per page for access to electronic court filings even though the cost of electronically storing and transmitting these documents is virtually nothing.

These fees, which effectively constitute a paywall, are at the heart of a 2016 class action lawsuit against the federal government filed by a trio of nonprofit groups: National Veterans Legal Services Program, the National Consumer Law Center, and Alliance for Justice. The lawsuit contends the fees amount to systemic overcharges that, according to their opening brief, “inhibit public understanding of the courts and thwart equal access to justice, erecting a financial barrier that many ordinary citizens are unable to clear.”

“Instead of complying with the law, the (federal judiciary) has used excess PACER fees to cover the costs of unrelated projects — ranging from audio systems to flat screens for jurors — at the expense of public access,” the groups argued in the district court in 2016.

For those who rarely deal with legal documents, 10 cents a page may not seem like much, but it can add up. Bob Carlson, President of the American Bar Association, described the burden these fees can create in a letter to two U.S. House Members reaffirming the association’s decades-long support for doing away with the fees:

“Many of our members are in solo or small firm practice, work for nonprofit organizations or governments, or teach law; for them, access to federal court records may be a professional necessity, albeit an expensive one,” Carlson wrote. “Court records are public records, and technology has made it both cost-effective and convenient to make those records available to the public in a timely fashion and on a no-fee basis.”

To get a sense of how great this disparity is between costs and revenue, the New Republic reported that PACER brought in $146 million in electronic access fees in 2016 (about two percent of the federal judiciary’s annual $2 billion budget), but it only cost about $3 million to operate. The lawsuit contends the judicial system uses the revenue from these fees basically as a slush fund to purchase new televisions for jurors and send bankruptcy notices, among other things.

The plaintiffs have the support of a number of key groups like news organizations, retired judges, civil rights groups, and even former Sen. Joseph Lieberman, who sponsored the E-Government Act of 2002, the law in question in the suit. Many of these groups have filed amicus briefs in support of rolling back the fees.

While the goal of the lawsuit is relatively modest — free access to electronic records that are already public — many of the groups supporting the plaintiffs see First Amendment issues at play.

“Whether an individual is able to access these critical documents will often turn on their financial circumstances,” Lieberman wrote in a supporting brief. “That is at odds with the principle that all Americans should have equal access to the courts and to the documents that are essential to understanding the operation of our government.”

The case hinges on a single phrase in the E-Government Act authorizing the judicial system to charge fees, but “only to the extent necessary” to provide “access to information available through automatic data processing equipment.”

In its defense, the judicial system argues it has the legal right to charge per-page fees and to spend the money on programs and projects as it sees fit. In its brief it said those who wanted free access to court filings could visit the courthouse.

The United States Supreme Court has set a strong precedent for providing electronic filings at no cost. In 2017 the court created its own electronic filing system giving the public free online access to virtually all documents filed with the court. This is essentially the model that the plaintiffs would like to see implemented across the federal judiciary.

To be fair to PACER, all judicial opinions are free, individuals are charged nothing when their fees are less than $15 in a quarterly billing cycle, and it does give courts some discretion to waive fees — with significant exceptions.

“Curiously,” the New York Times reported last week, “(the courts) are generally prohibited from exempting ‘members of the media.’”

In the view of many news and media groups, that’s a big red flag for democracy. It was one of the chief concerns in an amicus brief filed on behalf of the Reporters Committee for Freedom of the Press and 27 news media groups.

“As news outlets across the country face leaner budgets,” the brief said, “few can readily afford daunting fees for court records, especially independent journalists and community news media companies.”

In the first round of the lawsuit last year, Judge Ellen S. Huvelle of the Federal District Court in Washington took a middle-ground approach that rejected the federal government’s broad interpretation of the law while refusing to fully uphold the narrow scope of the plaintiffs’ interpretation. She ruled that the judiciary had indeed spent revenues beyond what Congress permitted in the E-Government Act, but she allowed other uses of PACER fees like funding electronic filing access for lawyers and sending out automated bankruptcy notices. Both sides appealed to the Federal Circuit Court of Appeals to review the decision, where it now waits.

Image Credit: “Judge gavel and money on white background” by Marco Verch is licensed under CC BY 2.0