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“Wholly Inadequate”: In Light of Useless Change to PACER, Advocates Call on Congress to Advance Bills That Would Make It Free

Open government advocates are decrying recent changes to the PACER fee scale as wholly inadequate and are calling on Congress to improve upon and advance bipartisan bills to reduce the costs of accessing federal court records. The move comes as the Administrative Office of U.S. Courts (AO) officially notified House and Senate leadership last week of its previously approved changes to PACER charges.

Effective on Jan. 1 the AO will double the quarterly fee waiver from $15 to $30. Advocates argue that this will not change the core, antiquated business model of PACER: charge the public thousands of times more than it should cost to provide access to federal court documents.

According to recent court filings, it is estimated that the actual cost to retrieve these documents, with storage fees built in, is $0.0000006 per page. Storing the roughly one billion documents in PACER should then run about $600,000, or about one-half of one percent of PACER’s reported revenue ($146.4 million in 2016). And yet, the AO still charges $0.10 per page of search results and $0.10 per page of case documents.

Even worse, the judiciary has been using PACER revenues to pay for things the law never envisioned, from electronic bankruptcy notices to flat screens in jury boxes. This is an issue a federal appeals court will soon hear more about.

“The table scraps the judiciary is throwing us are unacceptable,” Fix the Court executive director Gabe Roth said. “No matter what the AO says, it doesn’t cost tens of millions of dollars to host and maintain a website comprising static documents. They’re using PACER as a slush fund, and that shouldn’t stand. That the judiciary is being sued over this scheme – and is losing – says all you need to know.”

“The judiciary has a monopoly on federal court filings and is abusing it to make more than $140 million every year. It’s obscene, and these token gestures aren’t nearly enough,” Free Law Project executive director and CTO Mike Lissner said. “This fee change helps one class of users: those who spend between $15 and $30 each quarter. The rest of us get nothing from this. If the AO won’t do better itself after all this time, Congress should force it to.”

“The increase of the fee waiver is but a Band-Aid on top of a fatal wound,” said Seamus Hughes, noted federal courts researcher and terrorism expert. “Academic researchers like myself routinely exceed the limit. The judiciary may suggest we apply for a blanket fee waiver, but that exemption would still limit our ability to inform the public, since by agreeing to such a waiver, you state that you will not make the documents public outside of yourself. I place thousands of pages of terrorism-related court records online for the benefit of policymakers, the media and fellow researchers. Without this service, the public would be less informed on the nature of the homeland threat.”

“The fee scale change barely moves the needle in securing the public’s access to important court records,” said Lisa Rosenberg, executive director of Open the Government. “In a technological age of increasingly open access to information, instead of adopting minuscule changes over time, PACER should simply offer the public free access to records.”

“As the judiciary often notes, it’s true that a large percentage of PACER’s revenue comes from commercial enterprises that can afford it. But it’s also certain that too large a number comes from pro se litigants, reporters, researchers and interested members of the public who cannot,” said Anthony Marcum, a governance fellow at the R Street Institute. “This announcement implies that without congressional intervention, an increased fee waiver is as far as the judiciary is willing to go to make PACER affordable. That’s not good enough.”

“This move is akin to dressing a pig in a three-piece suit. You’re still left with a pig,” said Dylan Hedtler-Gaudette, policy analyst at the Project on Government Oversight. “PACER is an inefficient and inaccessible barrier between the American public and the federal courts, and it’s time for Congress to act and make PACER free, accessible and consistent with 21st century technological standards.”

On Sept. 26 the House Judiciary’s Courts Subcommittee heard testimony from two federal judges representing the Judicial Conference of the U.S. – one of whom said PACER “can never be free” – and from advocates hoping to improve its efficacy and reduce costs. Earlier this year, bills were introduced in the House and Senate that would make PACER free. The major difference between the two is that the current House version leaves open the question of how to pay for free PACER, while the Senate version would likely rely on a modest increase in filing fees.

In addition to reducing the financial burden to litigants and researchers, the bills seek to streamline PACER and make it more user-friendly, by allowing users to search nationwide for individual charges and by making documents uploaded to the system machine-readable, for example.

The litigation over the federal courts’ misuse of PACER revenue, National Veterans Legal Services Program, et al., v. U.S., is ongoing. After a mixed decision in the D.C. District last spring – which stated, in part, that the courts were violating the law for using PACER revenue for projects not related to document access – the case has moved to the Federal Circuit (19-1081), which is expected to hear oral arguments early next year.

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