Ruling: Federal courts overcharge for online public records

Federal courts have been overcharging the public for online access to public records, according to a recent ruling by a federal appellate court. The higher court found that some of the ways the fees have been spent violated the law.

“If large swaths of the public cannot afford the fees required to access court records, it will diminish the public’s ability ‘to participate in and serve as a check upon the judicial process — an essential component in our structure of self-government,’” the U.S. Court of Appeals for the Federal Circuit ruled in a class-action lawsuit brought by three nonprofit organizations.

How much the courts will be required to reduce fees for using the Public Access to Court Electronic Records system remains to be seen. It now costs 10 cents a page for viewing and downloading most documents.

Reviewing legal and Congressional budget filings, the Legal Examiner estimates PACER fees should be expected to go down by at least 21 percent, and potentially more, depending on how the courts rule on some outstanding issues.

When any fee reduction might go into effect is unclear.

Under the current system, the fees for PACER can quickly add up for users performing searches and downloading different documents, making use of the system for many prohibitively expensive.

“PACER is a scam”

“Federal trial and appeals courts have now said PACER is a scam,” said Gabe Roth, of an advocacy organization called Fix the Court. “And given that and the fact that government documents should be free, Congress ought to pass any one of its several ‘free PACER’ bills and put this issue to bed.”

The lawsuit was brought by the Alliance for Justice, the National Veterans Legal Services Program and the National Consumer Law Center in April 2016.

It has received support from the Reporters Committee for Freedom of the Press, 27 media organizations and former U.S. Sen. Joseph Lieberman, who sponsored a law in 2002 intended to ensure the government doesn’t use fees for electronic access to court documents for anything but the cost of providing the documents.

The plaintiffs brought the case on the grounds that federal law restricts PACER fees from being used for anything other than the cost of providing public records electronically. In other words, PACER fees can be used only to fund the costs of administering PACER.

The class represented in the lawsuit consists of individuals and entities that paid fees for the use of the online public access system between April 21, 2010, and April 21, 2016.

The government maintains that PACER fees could go toward any expense involving “the dissemination of information through electronic means,” which includes numerous other budget items, such as courtroom technology, web-based juror services, Violent Crimes Control Act Notifications sent to police and sending notices to creditors in bankruptcy cases. In addition, the fees were used to fund a study that looked at extending PACER to the state of Mississippi.

The government also asserts PACER fees may legally fund the system used by litigants to file court documents, known as CM/ECF for case management and electronic case files.

Split ruling gives each side something

Federal District Judge Ellen Segal Huvelle ruled on a March 2018 motion for summary judgment that both sides were wrong. She allowed PACER fees to cover some expenses, but not others.

“The Court concludes that defendant properly used PACER fees to pay for CM/ECF and (Electronic Bankruptcy Notices),’’ but Huvelle wrote the money should not have been used for the Mississippi study and other things.

Huvelle wrote in a separate opinion that if the appellate court upheld her ruling, the only remaining issue would be to determine “the precise amount spent from PACER fees on impermissible expenditures.”

The answer to that question may govern how much money the court system will be required to refund public users of the system dating back to 2010, the time covered by the class-action suit.

The recent appellate decision upheld Huvelle’s ruling. The appellate court left it up to Huvelle whether to more closely examine if some spending on CM/ECF expenses should not be covered by PACER fees.

Plaintiffs: PACER should charge just $0.0000006 per page

The plaintiffs suggest in court filings that PACER fees should be virtually eliminated.

“Our technical experts estimate that the technology now exists to reduce the cost of retrieving a document from PACER — including the cost of data storage with a secure service used by many federal agencies — to only $0.0000006 per page,” they wrote in a brief. “This means that the fees actually collected by PACER could cover the costs associated with ‘215,271,893,258,900 requests, or approximately 1,825 pages per day for every person in the United States.’”

The government argued in its brief, however, that PACER fees were being correctly used.

PACER raises $145 million a year

Fix the Court estimated that PACER fees have raised $145 million a year for the federal court system. The judiciary’s total annual budget is more than $7 billion, according to court filings.

The plaintiffs note that PACER rates and collected fees have been rising, even though the cost of storing data has plummeted. In 2010, the fees collected totaled $102.5 million, according to court filings.

The Administrative Office of the Courts has notified Congress it expects to raise $142 million in PACER fees this year.

In anticipation that the appeals court would uphold the lower court ruling, the judiciary estimated it would need $30 million appropriated to cover the expenses that PACER fees would no longer fund. That would suggest that PACER fees should be reduced by at least 21 percent.

That would also suggest the courts may be required to refund about 21 percent of the funds it raised from PACER fees over the past 10 years, not including any interest.

However, the 21 percent difference could be higher, depending how the courts rule regarding how much of CM/ECF expenditures should be funded by PACER fees.

The appellate court decision sent the case back to the trial court to sort through issues, including funding for CM/ECF.

A spokesman for the Administrative Office of the Courts could not provide an estimate of how much it costs to fund CM/ECF.

PACER dates to dial-up system in 1988

PACER was created as an experimental, dial-up system in 1988. The following year, the program was extended as a pilot to several bankruptcy and district courts.

In 1990, the fee was $1 per minute to use the system. That was reduced in 1995 to $0.75 per minute.

In 1998, the system adopted a web interface and began charging 7 cents a page. That increased to 8 cents in 2004 and 10 cents a page in 2012.

State courts have different online records systems

Although the federal online records system is criticized as expensive and clunky, it is an improvement over most state courts, which do not have online records access.

Online access to court documents in most states is “limited or nonexistent,” according to William E. Raftery, an analyst at the National Center for State Courts. While many provide access to court dockets, that is not the case for the documents filed with the courts, Raftery said.

Those states that do provide access vary, according to Raftery, who gave the example of Florida, where online access to court dockets and documents is provided for free.

But even within states, the access will differ. While the federal PACER system is controlled by the judicial branch, in many states, court documents are controlled by individually elected court clerks, Raftery noted.

In Florida, court clerks across the state agreed, by and large, to use the same system to provide documents. But that’s not the case everywhere.

In Virginia, for example, Raftery said, two county courts provide online access to court documents, while the rest provide access only to dockets.

“Florida is light years ahead of many other states,” Raftery said. In New York, courts at one level offer free online access to court documents, while other levels do not.

In California, some counties do not provide online access to court records or dockets. Others provide dockets, but no documents. While still others provide both dockets and documents.

Maine, he said, is in the process of working on an online system, but that’s six months to a year away.

In the federal PACER lawsuit, $120,000 in the PACER funds was used to study whether PACER could be used in Mississippi state courts. The appellate court ruled that was not a legally permitted use of the funds.

Contact Elaine Silvestrini at Elaine@legalexaminer.com. Follow her on Twitter at @WriterElaineS.