by Brandon Wright Adler
In light of a new court decision delivered by the United States District Court for the District of Columbia, I decided to revamp my entire blog post for the week. With that, I had the pleasure to read Stephen Schultze article “Judge Declares Some PACER Fees Illegal but Does Not Go Far Enough.” Schultze has long been an advocate that the federal Judiciary is violating the law by charging for access to the web-based system, PACER (“Public Access to Court Electronic Records”). In the opinion recently filed on March 31, 2018 of National Veterans Legal Services Program, et al., v. United States of America, Judge Huvelle partially agreed with Mr. Schultze that some of the fees that were being collected were indeed illegal, and she ordered that nearly $200 million may be returned to those who paid for PACER between 2010 and 2016. In my very quick perusal of the opinion and my reading of Mr. Schultze’s article, it seems that she didn’t so much disagree or find the fees themselves as illegal, but more the categories to which the fees were allocated.
A quick look at the origins of PACER listed in the opinion tells us that “The Senate Report on 1991 appropriations bill noted that it ‘included language which authorizes the Judicial Conference to prescribe reasonable fees for public access to case information, to reimburse the courts for automating the collection of the information.’” See National Veterans Legal Services Program, et al., v. United States of America, pg. 3. The official language of the Appropriations Act of 1991 seems to do the same. My point here is not to restate what the opinion says, you all should go and read the opinion, it is pretty fascinating stuff. My point here is to agree with Mr. Schultze—but only in part. I believe that charging a small fee to use PACER is acceptable; but, I do agree with Mr. Schultze, that the allocation of much of these fees does not satisfy the essence of the Appropriations Act of 1991 nor the essence of public access.
First, I’m in agreement with Mr. Schultze that Judge Huzelle did not go far enough. Judge Huzelle was correct in looking at allocations of fees, but she should have looked at more than just the allocations. To determine whether these fees benefit or deter public access you have to look at the structure of PACER itself. As a person who strongly advocates for preservation, PACER is an amazing preservation tool for the access that it allows to court documents; both present and somewhat “historical.” Taking a look at the structure of PACER tells us that there is room for improvement as it pertains to the transparency of fees. Yes, as you begin your search within PACER there is statement warning you of the $0.10 fee per page downloaded; however, after you accept that you will be charged this standard fee, the transparency stops. For example, if you want to look at the docket showing all documents ever filed and entered into the record for a specific case, you have no way of knowing how many pages long this list will be. Therefore, no way of knowing your fee for pages downloaded until after you download them. Recently, in searching for specific documents for a fellow faculty member, I retrieved such a list that turned out to be 300 pages long. Instantly, my bill went up to $30.00. I am fortunate enough to work for a university and those costs will be covered by my institution, but that is not ideal nor truly ethical practice for those who must represent themselves and cover such costs. It defeats the purpose of public access. How accessible is a system if the fees for access are effectively hidden? For a start, the Judiciary should structure (or program?) PACER to alert a user as to how many pages they are about to download and allow that user to accept or cancel the transaction. That’s just a start and we could talk about these types of flaws all day long, but let’s move on in the interest of word count.
Second, Mr. Schultze believes that charging any fees to access PACER is illegal. This, in my opinion, goes too far. Paying attention to the fact that these same documents, if not for PACER electronic automation, would be much more difficult to obtain for public patrons, and going further possibly, pro se prisoner litigants. Often, the time involved, met with looming court dates or filing deadlines, may completely overwhelm and defeat a public patron or prisoner litigant before they even have a chance at representing themselves. Before PACER requesting these documents probably involved making a call to the specific courts clerk’s office, requesting the file with complete identifying information, sending payment for the retrieval and copying of the documents (if you knew which ones you were looking for), and then waiting for these items to be mailed to you. Let’s say you lived close enough to one of these courts to drive yourself there, you are still dealing with extreme loss of time and money (i.e. may have to miss work to pick up these documents and have to pay for the cost of retrieval). So, a small fee for the electronic automation process is not, in my opinion, a violation of law. Going further, a small fee for automation is necessary to continue public access and to help sustain growth and improvement of such public access. The court opinion breaks down the categories to which the nearly $150 million in fees collected annually are allocated and many of these appear to be outside of the Appropriations Act of 1991 original language.
After a quick reading of the opinion and pairing it with Mr. Schultze’s article, I highly recommend that you take a look at both the article and the opinion itself, they are worth it!