Buckley Commentary & Analysis
"Nickel and diming access to court records: The National Veterans Legal Services Program decision and PACER fees" by Elizabeth R. Bailey
Buckley Commentary & Analysis
For years, remote access to most federal court records has been locked behind a government paywall. The U.S. Court of Appeals for the Federal Circuit may have pulled the first brick out of that wall, though, in an August opinion, ruling that the judicial branch has been improperly charging and spending fees paid by the public to access those records on projects outside of the scope of what is permitted by statute.
The NVLSP dispute
PACER (Public Access to Court Electronic Records) since 1988 has been the sole method of direct remote access to federal court records. With over a billion documents in the system, the judiciary’s maintenance of the PACER system understandably requires significant funds. Congress empowered the judiciary to charge “only to the extent necessary” “reasonable fees” to allow users “access to information available through automatic data processing equipment.” Statutory note, 28 U.S.C. § 1913.
The National Veterans Legal Services Program and two other national nonprofits brought the dispute in the United States District Court for the District of Columbia, challenging whether the judiciary could charge more to access PACER than just the marginal cost of operating the PACER system. The judiciary had been using PACER fees to fund some projects closely related to PACER, such as an electronic case filing system, as well as some very distant, such as a feasibility study on electronic public access to Mississippi state court records, the Violent Crime Control Act (VCCA) Notification System, Web-Based Juror Services (E-Juror), and courtroom technology.
Ultimately, both the District Court and the Federal Circuit came down in the middle — the Judiciary can use PACER fees for some projects beyond PACER upkeep, but only “the amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information.” The ruling meant that PACER fees should not have been used for the Mississippi study, the VCCA Notification System, E-Juror, or most courtroom technology projects.
PACER fees and the users who pay them
PACER fees are small, but they add up quickly and pose a barrier to court access for certain litigants and organizations. It costs 10 cents per page to merely view a document or search results, although most court-created documents are capped at $3.00 per document. There are also mechanisms to give some individuals or entities free access, and parties in a case can access a document once for free.
Users who incur less than $30 in a billing cycle do not get charged, but it takes only a few large briefs with appendices to hit that threshold, and that users can rack up substantial fees just searching for the particular document they want to download. Receiving one free copy of each filing in a single case is a far cry from the ability to browse the full system for examples of motions, briefs, and other information that may be helpful to a party. Further, users must have a credit card to get immediate access; others have to wait seven to 10 business days for mail delivery of a code to activate the account.
Judicial Conference policy allows judges to grant discretionary fee exemptions to “indigents, bankruptcy case trustees, pro bono attorneys, pro bono alternative dispute resolution neutrals, Section 501(c)(3) not-for-profit organizations, and individual researchers associated with educational institutions,” although courts should not exempt “government agencies, members of the media, privately paid attorneys or others who have the ability to pay the fee,” and such “exemptions should be granted as the exception, not the rule.” Exemptions, though, are not automatic, even for litigants who have already been granted in forma pauperis status. Eligible users must separately petition the court for a fee exemption, a further obstacle to access.
Movement toward free PACER
Exasperation with the PACER paywall is nothing new, and while the NVLSP chose to sue to force change, others have taken different approaches. In 2008, the judiciary set up a pilot program for free PACER access in a handful of libraries across the country, only to have a group use an automated computer script to download and post online 2.7 million documents. The FBI shut down the group’s efforts, the judiciary shut down the free-access pilot, and the PACER FAQ page now states that “Any attempt to collect data from PACER in a manner that avoids billing is strictly prohibited and may result in criminal prosecution or civil action.”
Efforts to provide free access to PACER continue, however, through nonprofit projects like RECAP (a joint collaboration Princeton University’s Center for Information Technology Policy at Princeton University and Free Law Project), and proposed federal legislation (bills introduced in the 116th Congress calling for free PACER access include HR1164, S2064, and HR5150).
Practical implications of NVLSP are mixed
While the NVLSP is good news for proponents of sunshine laws, the practical implications of the decision are mixed and either party could appeal the decision.
User fees will likely go down, and any decrease in litigation costs and accompanying increase in access to court information is a positive development. All privately paid attorneys (even those with lower rates) have been excluded in the past from the PACER fee-exemption policy, which also excludes members of the media, who disseminate critical information to the public about ongoing litigation and the broader functioning of the judicial branch. As the NVLSP court noted, “[i]f large swaths of the public cannot afford the fees required to access court records, it will diminish the public’s ability to participate in and serve as a check upon the judicial process — an essential component in our structure of self-government.”
But denying the judiciary the ability to use PACER funds for many other projects could threaten the continued existence of those projects. Federal courts have some power to self-fund certain programs by charging user fees, but the judicial branch is primarily dependent on congressional appropriations. In February 2020, before the pandemic took hold in the United States, the judiciary cited a growing workload due to executive and legislative actions as support for a 4.4% increase in its budgetary request for fiscal year 2021. And in May 2020, the judiciary asked Congress for $36.6 million in supplemental Covid-19 response funding, an amount that already took into account $27.5 million in projected savings due to the pandemic.
Good or bad, NVLSP is shining a new spotlight on the PACER paywall and the value of broad public access to court records.