“Everyone wants to have a system that is technologically first class and free,” said Rep. Hank Johnson (D-Ga.), a sponsor of the legislation with Rep. Douglas A. Collins (R-Ga.).
A modern system, he said, “is more efficient and brings more transparency into the equation and is easier on the pocketbooks of regular people.”
The debate during the lame-duck session of Congress comes after a federal appeals court last summer said the judiciary is overcharging for access to online court records. The dime-per-page fees can quickly mount and become a barrier to access for academic researchers, journalists and citizens tracking the work of the federal courts.
James C. Duff, director of the Administrative Office of the Courts, has asked House leaders not to schedule a vote on the bill that he said would require a hefty increase in court filing fees to pay for a “massive, untested, disruptive, and costly overhaul.”
“The idea of making it free for everyone is certainly attractive, but it’s not free,” Duff said in an interview.
In a letter to House Majority Leader Steny H. Hoyer (D-Md.) on behalf of the Judicial Conference, the court’s policymaking body, Duff said higher fees for litigants in civil and bankruptcy cases could represent an “outright barrier to seeking relief in the federal courts.”
A free database, he added, would be a “financial windfall” for the large banks, legal-database companies and research institutions that currently fund 87 percent of the costs of the online court records service.
Federal judges also are calling lawmakers to express their concerns.
A vote has not yet been scheduled on the bill and there are ongoing discussions with “members as well as the judicial branch to address its concerns,” according to an aide to Democratic leaders, who spoke on the condition of anonymity to discuss internal deliberations.
There is vast disagreement over the estimated price of revamping the online court document database. The judiciary says it will cost at least $2 billion over five years; lawmakers put the price closer to $10 million.
A group of former government technologists and IT experts rejected the judiciary’s estimate in a letter to the Judicial Conference this month. Instead, they say it would cost between $10 million and $20 million over 36 months to build and then between $3 million and $5 million to maintain.
The group notes that the cost of storing and retrieving data has dramatically dropped since PACER was created and began charging 7 cents per page in 1998.
“The judiciary can and should keep up, especially since the solution will cost taxpayers a fraction of what the judiciary currently pays to maintain the status quo,” according to the former officials and IT experts.
Separately, the federal lawsuit over the judiciary’s existing PACER paywall is pending. The U.S. Court of Appeals for the Federal Circuit in August said the fees must be limited to the amount needed to cover the cost of providing access to court information online. The administrative office of the courts 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 judiciary emphasizes that it does not charge to download court opinions and that many users — those who do not run up a tab of more than $30, or 300 pages in a three-month period — are not charged.
As part of the litigation, several former judges told the court that the “best policy is to make PACER free” and that “wealth should not control access to justice.”
U.S. District Judge Reggie Walton in Washington said court proceedings and documents should be transparent and accessible. But if Congress mandates the creation of a new, free database of records, lawmakers have to provide the funding. He is concerned about the financial impact on the court’s day-to-day operations.
“The court bears a cost, too,” said Walton, a Judicial Conference committee member, who expressed his personal view. “It’s not like we have unlimited funds.”