Are Federal Courts Overcharging for Digital Records? [POLICYbrief]
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Are Federal Courts Overcharging for Digital Records? [POLICYbrief]


If you go to the courthouse, ask the clerk
for the records in a case, and you’ll get a big pile of paper. Nobody charges for access to paper records. If you want to make a copy of paper records
at the courthouse, in most places you still better bring a lot of quarters and hit the
Xerox machine, but if all you want to do is read a court filing, you can go in any court
clerk, go up to the counter, ask for it, and there’s no fee. In fact, a fee would be unimaginable and almost
certainly unconstitutional. But if you want to do the same thing remotely,
if you want electronic access to court records, you have to pay a significant fee to the federal
government. The Supreme Court has said that you have a
First Amendment and common law right of access to almost all court documents in paper form. That’s well established. That’s uncontroversial. Leading cases say that. But whether those cases apply as well to digital
access, to electronic court records, is untested. Filings in court cases under the Federal Court’s
electronic filing system, called PACER, are subject to fairly high fees, 10 cents a page,
in an era where the cost of storing and transmitting electronic records has dropped pretty close
to zero. The PACER system’s fees have been challenged
by a veterans group and other nonprofit groups that say they can’t do their jobs well, they can’t represent their clients, if they
don’t have free access to legal materials, so they’ve gone to court and sued. The Federal District Court accepted their
basic theory, that there are overcharges going on, that PACER is charging more than it should
be, and that case has now gone to a federal appeals court. There are three levels of arguments here. There’s a policy argument. That’s really not before the courts. Many people think that it would be better
to run the system by having free access to court records. That’s not the argument before the courts. The middle tier of argument is a statutory
argument. Congress has told the judicial system it can
charge to the extent necessary, and the statutory question is, is it charging more than that? The third argument is a constitutional argument
of, is there is a constitutional right of access to digital records of this sort? That’s not currently before the courts, although
it kind of overhangs and shadows the questions in some of the supporting briefs filed. PACER generates about 145 million dollars
a year. That’s a lot of money, but it’s quite a small
percentage of the total federal judiciary’s budget, which is about seven billion dollars,
so that’s about 2% of the total budget, but it seems to be charging users rather a lot
more than what it actually costs to maintain the system. The court system uses the money for some interesting
things like flat screen TVs for jurors or studies of the Mississippi judicial system,
so it’s not clear that those kinds of uses are consistent with the statutory command
to only use the money to the extent necessary. The court system says that, as a practical
matter, most people who want access to most documents can get them for free. The real money is paid by, uh, rich law firms
and other big companies that can easily pay for it, that the great bulk of the system
is paid for by rich people, and poor people can more or less get access. You don’t get charged until you’ve, uh, hit
$15 in a calendar quarter. Maybe the fees are a little bit on the high
side, but you can’t have a system without somebody paying for it. Let me give you an analogy. Nobody doubts that there’s a constitutional
right to go see the Supreme Court and have arguments. There are real disputes, though, about whether
that right extends to electronic access to the Court. The question of whether digital access to
court records is in that same constitutional realm is an open question.

5 Comments

  • Edward Thomas Kennedy

    YES they charge too much, and NO "they" won't give you paper….
    e.g.
    at USDC Pa. E.D. Allentown Division and
    no paper given when you ask ( I asked) at USDC Pa. E.D. Bankruptcy Court
    at Reading, PA aka Pencil vane YA!

  • Eddie Brahhh

    Very true. Ten cents per page, max is $3.00. A lot of courts everywhere are doing their best to make money and expand their empires. There is no humility anymore.

  • Elaine

    With so many cases to be reviewed and the level of pages within each filing, you can spend hundreds to get access to an entire case of documents. Records are centralized at courthouses. I can't drive from CA to DC every time I want to review a case filing in person. The fact that I'm subjected to a $3 fee on nearly every filing I want to pull is ridiculous and yes, I feel that it's unconstitutional for me to be barred from obtaining it without being charged.

  • sciblue27 anangrymaninthelightofthelord

    as much as necessary? how much does it take to pay off a Court now a days? I think the Judges and lawyers should have to pay a fee to "Practice" their "rodeo-show" on a circuit. We own the Court Houses and they want the right to use them, so there fore they should be paying the American people for the right to do so. If they want to dress up in costumes and grandize themselves. To pretend to be on a boat when we're obviously on land. Imaginary imaginations are for children, now get back to reality.

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