Congress May Remove a Paywall to Justice

Note: On Tuesday, the House Judiciary passed H.R. 8235, the Open Courts Act of 2020, by voice vote.

Would you believe the same committee that voted along party lines to impeach President Trump in December is the same committee that could bring some of the most common sense, bipartisan reform this Congress?

Today, the House Judiciary Committee is set to markup the bipartisan Open Courts Act of 2020, which will take great steps to make the federal judiciary more transparent and accessible to the public.

Whether it’s a scandalous criminal trial or civil suit to prevent government abuses, journalists, researchers and interested members of the public rely on public court records to understand the world around them and keep up with the news of the day. In the federal court system, these records are often hidden behind a paywall, charging users 10 cents a page to view or download most records.

This paywall, known as PACER (Public Access to Court Electronic Records), is oft-criticized by lawyersreportersretired federal judges and even members of Congress. The system is antiquated, unwieldy, and most importantly—too expensive. Ten cents a page adds up, especially when there is little uniformity between federal courts, and faulty searches can bring up multiple pages of costly results.

PACER is a good business for federal courts, to the tune of over $140 million a year, while estimates suggest “the actual cost of retrieving court documents, including secure storage, is about one half of one ten-thousandth of a penny per page.”

The judiciary argues that most of its revenue is attributed to “power-users” like “large financial institutions and major commercial enterprises that aggregate data for analysis and resale.” Nevertheless, while there are a few commercial enterprises that can afford PACER’s disproportionate fees, “it is also certain that too large a number comes from pro se litigants, reporters, researchers and interested members of the public who cannot afford it.”

Fortunately, PACER’s inordinate fee structure stems from federal law, which Congress can change as easily as it enacted it. Today, the federal judiciary may charge for PACER, but “only to the extent necessary (…)  to reimburse expenses incurred in providing [its] services.” How the federal judiciary has determined these fees has been the subject of worthy criticism and even litigation. Just last month, the U.S. Court of Appeals for the Federal Circuit recently affirmed the decision of a lower court which earlier found that the federal judiciary improperly used PACER revenue to pay for expenses unrelated to providing electronic access to court records.

The Open Courts Act of 2020 would make federal court records free to the public and streamline the federal court’s online record system to make court records easier to find. The bill first requires the federal judiciary to modernize its electronic court records system by establishing “one system for all public court records.” This system is required to provide improved search functions and allow outside websites to “link to documents on the system.”

Most important, the bill requires that “all materials in the system” be “publicly accessible, free of charge.” This is paid for by having the judiciary continue to collect a fee from the Department of Justice, which would be equal to its past annual payments for PACER (as adjusted for inflation). In 2017, these fees totaled nearly four million dollars. If these fees are insufficient, then the judiciary may cover any marginal costs by adding “reasonable filing fees” on new cases filed in federal courts.

Beyond its practicality, the largest advantage of this legislation is its bipartisan support. Georgia Representatives Hank Johnson (D) and Doug Collins (R) jointly introduced the bill. And if the Open Courts Act were to pass the House, there should be equal and bipartisan interest in the Senate. U.S. Senators Rob Portman (R-OH), Ron Wyden (D-OR), Ted Cruz (R-TX) and Mazie Hirono (D-HI) has introduced similar legislation to make PACER free for the public.

In spite of an election in only a few weeks and a looming lame duck session, Congress still has the chance to get more work done. And an often-maligned House Committee—more known for its fiery committee hearings than bipartisan reforms—has the opportunity to lead the way.

Anthony Marcum

Resident Fellow, Governance

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