The federal judiciary's fee-based access to its public online database, known as PACER, is not just anachronistic and counter to history but harms the structural integrity of the modern judiciary, a new research article claims.

The article—”The Price of Ignorance: The Constitutional Cost of Fees for Access to Electronic Public Court Records“—contends the judiciary's fee structure makes public records “practically inaccessible” for many people and inhibits constitutionally protected activities. “PACER should be free,” the article, posted on Aug. 29, concludes.

“Through this fee system, the judiciary collects fees at ever-increasing rates and uses much of the revenue for entirely other purposes—in an era in which the actual cost of storing and transmitting digital records asymptotically approaches zero,” Stephen Schultze, a Georgetown University Law Center student, writes in the article.

In 2015, revenue from PACER—the widely used shorthand for Public Access to Court Electronic Records—was about $148 million, according to Financial Services and General Government Appropriations for 2017.

The fees obstruct certain access that would benefit the functioning of federal courts, Schultze, formerly associate director of the Center for Information Technology Policy at Princeton University, concludes.

News reporters, the paper says, “are hindered from following cases and from investigating the effectiveness of the judiciary; researchers are unable to perform 'big data' analysis that holds untold promise throughout the judiciary; and privacy advocates are unable to help the judiciary to better remove sensitive information that should never have been in public records in the first place.”

David Sellers, spokesman for the Administrative Office of the U.S. Courts, said the E-Government Act of 2002 was “pretty clear” in terms authorizing a reasonable fee schedule for electronic access to information. PACER charges 10 cents a page, up to 30 pages, to access court filings and dockets. (The National Law Journal regularly uses PACER.)

The U.S. Supreme Court's move to an electronic filing system, beginning on Nov. 13, will not be a part of PACER.

Schultze contends a “chasm” exists between the Judicial Conference of the United States' interpretation of the E-Government Act, and the interpretation of the act by its principal sponsor, former U.S. Sen. Joseph Lieberman, the Connecticut independent.

Lieberman, in letters to the Judicial Conference and congressional appropriations committees, raised concerns that the judiciary was charging more than necessary to cover expenses in providing the PACER service and using the excess for unrelated services. The Judicial Conference, in response, has said it sets the fees “commensurate with the costs of providing and enhancing services related to public access.”

Under that interpretation, according to Schultze, “so long as an expense is somehow related to public access, it is permissible.”

Schultze predicts that this difference of opinion will likely come to a head in National Veterans Legal Services v. United States, a class action in Washington federal district court on behalf of all PACER users. The complaint seeks repayment of charges that exceeded what the E- Government Act permits.

“If the plaintiffs prevail or if the parties settle, future PACER fees will likely be reduced but not eliminated,” Schultze writes. “Whereas the constitutional argument against PACER fees counsels against user fees altogether, the statutory argument merely seeks to align total user fees with actual fiscal cost.”

Three amicus briefs were filed Tuesday in that class action, pending before U.S. District Judge Ellen Huvelle of the District of Columbia: one by Lieberman and U.S. Rep. Darrell Issa, another by the American Association of Law Libraries and a third by the Reporters Committee for Freedom of Press and 17 media companies. The briefs support the plaintiffs, represented by Deepak Gupta of Washington's Gupta Wessler; Michael Kirkpatrick of the Institute for Public Representation, and Motley Rice's William Narwold.

PACER fees “greatly exceed the cost of providing the records, and with the excess being used to fund projects that are entirely unrelated to PACER,” the lawyers for Lieberman and Issa, represented by Baker & Hostetler, write in their court papers.


Steve Schultze

Schultze, who holds a master's degree in media studies from MIT, said in an interview that he has long been interested in where technology and policy intersect. He first encountered PACER in researching a legal question involving the First Amendment.

“I was accustomed to government information being freely available over the web as much as possible,” he says. “I happened upon PACER as a nonattorney. It seemed odd to me and wrong.”

Because PACER is funded by fees, it is not part of the normal federal budgetary process in which Congress makes appropriations. Schultze says he and others have urged Congress to appropriate funds to pay for services that PACER fees currently cover.

That's the best way to solve the problem, Schultze says, acknowledging that it also might not be a practical solution. Litigation, he says, could force the courts and Congress “to confront both the statutory issue raised in the class action and, theoretically, down the road, the constitutional question of whether PACER should be entirely free.”

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The federal judiciary's fee-based access to its public online database, known as PACER, is not just anachronistic and counter to history but harms the structural integrity of the modern judiciary, a new research article claims.

The article—”The Price of Ignorance: The Constitutional Cost of Fees for Access to Electronic Public Court Records“—contends the judiciary's fee structure makes public records “practically inaccessible” for many people and inhibits constitutionally protected activities. “PACER should be free,” the article, posted on Aug. 29, concludes.

“Through this fee system, the judiciary collects fees at ever-increasing rates and uses much of the revenue for entirely other purposes—in an era in which the actual cost of storing and transmitting digital records asymptotically approaches zero,” Stephen Schultze, a Georgetown University Law Center student, writes in the article.

In 2015, revenue from PACER—the widely used shorthand for Public Access to Court Electronic Records—was about $148 million, according to Financial Services and General Government Appropriations for 2017.

The fees obstruct certain access that would benefit the functioning of federal courts, Schultze, formerly associate director of the Center for Information Technology Policy at Princeton University, concludes.

News reporters, the paper says, “are hindered from following cases and from investigating the effectiveness of the judiciary; researchers are unable to perform 'big data' analysis that holds untold promise throughout the judiciary; and privacy advocates are unable to help the judiciary to better remove sensitive information that should never have been in public records in the first place.”

David Sellers, spokesman for the Administrative Office of the U.S. Courts, said the E-Government Act of 2002 was “pretty clear” in terms authorizing a reasonable fee schedule for electronic access to information. PACER charges 10 cents a page, up to 30 pages, to access court filings and dockets. (The National Law Journal regularly uses PACER.)

The U.S. Supreme Court's move to an electronic filing system, beginning on Nov. 13, will not be a part of PACER.

Schultze contends a “chasm” exists between the Judicial Conference of the United States' interpretation of the E-Government Act, and the interpretation of the act by its principal sponsor, former U.S. Sen. Joseph Lieberman, the Connecticut independent.

Lieberman, in letters to the Judicial Conference and congressional appropriations committees, raised concerns that the judiciary was charging more than necessary to cover expenses in providing the PACER service and using the excess for unrelated services. The Judicial Conference, in response, has said it sets the fees “commensurate with the costs of providing and enhancing services related to public access.”

Under that interpretation, according to Schultze, “so long as an expense is somehow related to public access, it is permissible.”

Schultze predicts that this difference of opinion will likely come to a head in National Veterans Legal Services v. United States, a class action in Washington federal district court on behalf of all PACER users. The complaint seeks repayment of charges that exceeded what the E- Government Act permits.

“If the plaintiffs prevail or if the parties settle, future PACER fees will likely be reduced but not eliminated,” Schultze writes. “Whereas the constitutional argument against PACER fees counsels against user fees altogether, the statutory argument merely seeks to align total user fees with actual fiscal cost.”

Three amicus briefs were filed Tuesday in that class action, pending before U.S. District Judge Ellen Huvelle of the District of Columbia: one by Lieberman and U.S. Rep. Darrell Issa, another by the American Association of Law Libraries and a third by the Reporters Committee for Freedom of Press and 17 media companies. The briefs support the plaintiffs, represented by Deepak Gupta of Washington's Gupta Wessler; Michael Kirkpatrick of the Institute for Public Representation, and Motley Rice's William Narwold.

PACER fees “greatly exceed the cost of providing the records, and with the excess being used to fund projects that are entirely unrelated to PACER,” the lawyers for Lieberman and Issa, represented by Baker & Hostetler, write in their court papers.


Steve Schultze

Schultze, who holds a master's degree in media studies from MIT, said in an interview that he has long been interested in where technology and policy intersect. He first encountered PACER in researching a legal question involving the First Amendment.

“I was accustomed to government information being freely available over the web as much as possible,” he says. “I happened upon PACER as a nonattorney. It seemed odd to me and wrong.”

Because PACER is funded by fees, it is not part of the normal federal budgetary process in which Congress makes appropriations. Schultze says he and others have urged Congress to appropriate funds to pay for services that PACER fees currently cover.

That's the best way to solve the problem, Schultze says, acknowledging that it also might not be a practical solution. Litigation, he says, could force the courts and Congress “to confront both the statutory issue raised in the class action and, theoretically, down the road, the constitutional question of whether PACER should be entirely free.”