By Tyler Cooper, Fix the Court senior researcher

Documents filed in federal court cases – whether they be complaints, motions or orders – are a matter of public record. Yet it costs the public more than zero dollars to access these files – and sometimes a lot more.

The Public Access to Court Electronic Records system, better known as PACER, currently charges 10 cents per page just to view a document, and it charges 10 cents for every “page” of search results when you’re just trying to look up a case. That means users can rack up large fees rather quickly.

PACER was created in 1988 by the federal courts in response to the proliferation of computers and the accompanying demand for a case filing system that incorporated this new technology. Back then, it made some sense to charge for access, given that building PACER from the ground up was not cheap.  The U.S. courts has recouped those costs, and the annual cost to run the program, in several ways over the years: a 1-900 number, an annual subscription model, a per-minute-of-use model and, finally, what’s existed for two decades, a per-page fee structure.

All the while, costs for online storage and document retrieval have dropped by 99 percent. Yet PACER keeps charging user fees, and it’s now a $140 million-plus per year cash cow for the U.S. courts.

In 2016 three nonprofit groups filed a federal class action lawsuit over what they claim were impermissibly excessive fees leveled by the federal judiciary for PACER usage. The case is currently on appeal in the Federal Circuit.

Fee Overview
Federal law allows, but does not require, the judiciary to charge fees for access to electronic public records. However, the legislative text qualifies that the use of fees can be “only to the extent necessary” to pay for “services rendered.” This language tightened the original instruction that the judiciary could only impose “reasonable fees” for access to electronic documents.

The PACER fee structure has been changed many times throughout its relatively short history. (Ironically, the fee was first lowered in 1995 “to avoid an ongoing surplus.”)

1990 – $1 per minute
1995 – $0.75 per minute
1996 – $0.60 per minute
1998 – $0.07 per page
2004 – $0.08 per page
2011 – $0.10 per page

The Judicial Conference carved out some exceptions to these rates over the years, for example, to give attorneys and parties a free electronic copy of all documents filed in their case (2001); they waived the fees owed unless charges of more than $10 accrued in a calendar year (2001); they capped the fee at 30 pages per document (2002); and they exempt certain filers, researchers and non-profit staff from paying the fees, though state and federal employees and members of the media were not exempted (2003). In 2011, the fee waiver was increased to up to $15 per quarter.

In 1997 the Administrative Office of the United States Courts (AO) started planning for a new electronic case filing system (ECF). Staff produced a paper considering how the new system would be funded. This paper recognized the “long-standing principle” that any user fee “the government should seek, not to earn a profit, but only to charge fees commensurate with the cost of providing a particular service.”

However, the paper also mentioned that “revenues generated from electronic public access fees” could fund the ECF. No legal justification for that idea was provided. In 1998 the AO changed PACER fees to $0.07 per page, raising significantly more revenue than was required to fund the program and using the excess to fund ECF and later other programs.

From 2010 to 2016 PACER fees have funded courtroom technology, web-based jury services, a state of Mississippi study, sending notices to creditors in bankruptcy proceedings and sending notices to law enforcement agencies under the Violent Crime Control Act. That’s clearly not what the original PACER law intended.

PACER fees collected by the judiciary went from $102.5 million in 2010 to $146.4 million in 2016, according to recent court filings. PACER revenue was under $20 million in 2001 (the first year PACER was available online) and has steadily increased each year despite the fact that data storage has become significantly cheaper over that time, from $65.37 in 1998 to store 1 GB of data to $0.028 in 2016 – a decrease of more than 99.9 percent!

PACER Case in the Federal Circuit
The plaintiffs in this case, the National Veterans Legal Services Program,  made an illegal exaction claim stating that PACER fees could only be charged to the extent necessary to fund the PACER program, and yet since they had exceeded that need, they and all other PACER users were entitled to recovery against the federal government. The government took a broader view, arguing that statute allowed fees to be collected to fund any program related to “disseminating information through electronic means.”

The district court rejected both positions. It found that “when Congress enacted the E-Government Act, it effectively affirmed the judiciary use of fees for all expenditures being made prior to its passage, specifically related to CM/ECF and EBN [Electronic Bankruptcy Notification].” Therefore, the court concluded some expenditures made using PACER fees were proper while others were improper, and so plaintiffs were entitled to relief to the degree fees were misused.

Both parties have appealed.

The government has argued its case almost entirely on jurisdictional grounds. When it has addressed the merits, the government has suggested that Congress’s lack of explicit disapproval over the PACER fee structure should be considered tacit approval from the body – regardless of previous statutory language. As the government stated in its appellate brief, “If Congress had meant to impose such a significant restriction it would have said so explicitly.”

That argument is not a convincing one to us, and soon we’ll see if it convinces the Federal Circuit.