Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, February 7, 2019

Should PACER be free?

A suit pending appeal in the Federal Circuit Court of Appeals is asking for an end to administrative fees for accessing documents filed in the federal courts. Public judicial documents are located in the electronic database, Public Access to Court Electronic Records system, or PACER. Anyone can access the system, but there is a fee of 10 cents per page. 

The E-Government Act of 2002 authorized the judiciary to charge PACER access fees, but the fees were limited to "the extent necessary" to provide access to these records. At 10 cents per page, it may seem minuscule in the abstract, but when looking at the actual intake PACER has had, there are legitimate questions about whether this charge is exorbitant. For an example, even though PACER cost $3 million to operate in 2016, it brought in over $146 million in fees. For anyone who's had to navigate the clunky interface that reminds a user of the nostalgia of how the internet used to work, it would not be unreasonable to wonder where all that money is going. 

The lawsuit brought against the United States by National Veterans Legal Services Program, the National Consumer Law Center and the Alliance for Justice asks exactly that - where is this money going? 

From 2010 to 2016, the federal courts collected $920 million in Pacer fees. During that period, the judiciary spent about $185 million of the money on courtroom technology, and millions more on other projects, including $75 million for automated notices to creditors in bankruptcy cases.

While those expenditures seem in line with the dictates of the law, the trial court found not all of them to be appropriate. Both sides are appealing this decision.

To go further, a group of retired federal judges have filed an amicus brief substantiating their position that PACER should be free. Judge Posner is among the amici.

In a friend-of-the-court brief filed earlier this month, they argued that PACER should charge no fees at all, citing the need for judicial transparency and the benefits for researchers, journalists, and prisoners who represent themselves in court. “Given the public’s strong interest in accessing court records, the judiciary should bear the cost of PACER’s operations,” the brief said. “This is consistent with the courts’ longstanding tradition of providing free access for all who come into the courtroom.”

Without having knowledge and information about the expenditures or the entire budget allotted to the federal judiciary it's hard to say whether the money collected via PACER is in compliance with the law or whether it is being wisely spent. However, the unexplained lack of attention to bring the PACER system into the year 2019, sure seems to indicate that the judiciary should try filing some documents in order to gain a perspective for those on the other side of the bench. They may have a new appreciation for techie upgrades!

https://lawprofessors.typepad.com/appellate_advocacy/2019/02/should-pacer-be-free.html

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