“If 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,’ ” wrote Judge Todd M. Hughes, who was joined by Judges Alan D. Lourie and Raymond C. Clevenger III.
The ruling does not eliminate the paywall for the service known as PACER, an acronym for Public Access to Court Electronic Records. But the decision upholds a District Court finding that the current 10 cents per page charge is “higher than necessary to operate” the system. The court limited fees to the amount needed to cover the cost of providing access to docket information online.
Attorney Deepak Gupta, who argued against the paywall, said high fees are a “tremendous barrier to access to the courts” for academic researchers, journalists and ordinary citizens tracking the work of the court system. The ruling, he said, means fees will have to be reduced and unlawful fees refunded to the people who paid.
“The next step should be to make access to these records completely free,” Gupta said.
The court said Thursday that such calls for free access are “better directed to Congress.”
The ruling sends the case back to the District Court in Washington.
A spokesman for the judiciary’s Administrative Office of the Courts declined to comment on the ruling. The Justice Department can ask for rehearing or seek review by the Supreme Court.
The lawsuit was filed in 2016 by three nonprofit organizations. The National Veterans Legal Services Program, National Consumer Law Center and Alliance for Justice claimed that the dime-per-page fee unlawfully exceeded the cost of running the system. The cost of storing data has declined since the inception of the courts’ electronic repository in the 1980s, while PACER fees have increased.
The administrative office has used the money to pay for projects such as flat-screen TVs for jurors, to send notices to bankruptcy creditors and to fund a study by Mississippi for its own court system.
The Justice Department argued that Congress gave the judiciary discretion to set fees and did not establish a “correct” fee.
U.S. District Court Judge Ellen Huvelle in Washington issued a mixed ruling in 2018. The decision found that the fees exceeded the amount allowed by Congress but affirmed that the judiciary could use the money for certain non-PACER expenses.
The appeals court concluded in its 32-page opinion Thursday that the judge struck the proper balance and said she “got it just right.”
The judiciary does not charge to download court opinions, and there are waivers for some users. Of the 500,000 users who access PACER in a given year, the government said, 70 percent were not charged. Users who do not run up a tab of more than $30 — or 300 pages — in a three-month period are not charged.
But there appears to be bipartisan support in Congress to provide free online access with several pending legislative proposals.
James Duff, director of the Administrative Office of the U.S. Courts, told Congress in 2018 that the judiciary had already taken steps while the lawsuit is pending to stop using PACER proceeds to cover expenses identified as inappropriate in the District Court ruling.
Gabe Roth, a court transparency advocate with Fix the Court, called Thursday’s ruling a step in the right direction.
“But it doesn’t change the facts: It’s a disgrace the judiciary charges people anything, let alone 10 cents per page, to view public documents that cost the third branch a fraction of a penny to upload and store,” Roth said in a statement, noting that the Supreme Court’s website makes filings available free of charge.