Is PACER off the pace?
Websites often use paywalls, barring nonpaying readers from viewing their most exclusive content, to generate revenue and gain new subscribers. While many readers expect paywalls when scrolling through the online pages of national magazines or local newspapers, few expect to be stymied by them when searching for federal public court records.
Meet the Public Access to Court Electronic Records system, known as PACER. This system, which is controlled by the federal judiciary, charges users 10 cents a page to download and view most federal court filings. The system has been a successful moneymaker for the federal judiciary, collecting around $145 million in revenue each year.
In 2016, three nonprofit groups sued the government, arguing that PACER’s fee model violates federal law. They asserted that while the E-Government Act of 2002 does authorize PACER fees, it does so “only to the extent necessary … to reimburse expenses incurred in providing [its] services.” They allege that PACER has increased its fees to 10 cents a page not to cover the expenses of providing online court records, but to “cover the costs of unrelated projects … at the expense of public access,” in violation of the act.
The federal government says its PACER fees are lawful, claiming that the E-Government Act allows the government “discretion” in setting fees. The government also noted that the groups’ frustrations were misguided, pointing to certain exemptions to PACER fees: Judicial opinions, for example, are free online and courts may grant fee waiver requests in certain situations.
Last year, the district court found that the government properly used PACER fees to pay for some services but not for others. As a result, the court found the government “liable” for the excess fees that went beyond the limits of the E-Government Act.
The government appealed the ruling, and the dispute is now before the United States Court of Appeals for the Federal Circuit. At this stage, numerous organizations and individuals have filed briefs opposing PACER’s current fee model and the government’s broad interpretation of the E-Government Act.
Of these, the most notable brief was filed by seven former federal judges “in support of neither party.” The judges’ brief did not dive into the nuances of the E-Government Act or propose their own fee model. Instead, they argued “[t]he best policy is to make PACER free.”
The former federal judges’ brief is persuasive. Their first argument is transparency. As the brief states, “[o]pening up judicial records by removing the PACER paywall would be consistent with the best traditions of judicial transparency. And with greater judicial transparency comes more legitimacy in the public’s eyes.” They note, for example, that the Supreme Court has created its own filing system, separate from PACER, that is free to everyone.
Their second argument considers the importance of free public records for outside researchers. They note that, today, “[r]igorous empirical study is lacking in several areas that would inform judges’ decision-making on key issues.” And even when the federal judiciary—which has unlimited access to PACER data—researches an issue, it helps to have an outside party review its findings and scrutinize its methodology.
The last argument discusses how PACER’s paywall disadvantages those navigating the federal system without a lawyer (or proceeding “pro se”). Indeed, although pro se litigants often enjoy some leniency by federal judges, they must nevertheless follow the rules of federal procedure and local rules set by each federal district. These rules are complicated and often confound even the most experienced litigators. Moreover, pro se litigants often lack the experience to present the most persuasive arguments, hurting their case and making the courts’ job all the more difficult.
Free access to PACER, the judges argue, could help in both respects. They say this access could help a pro se litigant “comply with the rules and to present relevant arguments,” because they would have access to “what others have done successfully.” This would be especially important to pro se prisoners filing habeas petitions, as “[a]ccess to someone else’s successful petition is more valuable than the order or opinion granting it.”
As the legal debate continues, some have offered a legislative solution. Recently, House Judiciary Ranking Member Doug Collins (R-Ga.) introduced bipartisan legislation to do exactly what the former federal judges proposed—make PACER free and available to everyone. The bill also includes other commonsense changes, like mandating that all public documents be text-searchable and machine-readable to improve searches and make it easier for researchers to collect court data. The bill further encourages the judiciary to allow external websites to link directly to court documents in the PACER system.
For now, until legislation is passed—like the bill recently introduced by Rep. Collins—PACER fees are here to stay. In the meantime, the government suggests those who cannot afford these fees travel to the courthouse, where court filings are free to read. But take detailed notes. Printing, unfortunately, comes with a fee.