“The best policy is to make PACER free,” a group of retired federal judges told the court.
Judicial records should be “as widely available as possible” and “wealth should not control access to justice,” according to a brief from the former judges, including Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit and Nancy Gertner of the U.S. District Court in Massachusetts.
Court proceedings are open to the public, and case records can be reviewed free of charge in courthouse clerks’ offices during business hours. But downloading more than a handful of electronic records from your desk comes at a cost.
For lawyers, academic researchers and journalists, PACER is a valuable tool, providing quick access to legal documents to track developments in court, collect data on trends in the criminal justice system and report on matters of public interest.
The lawsuit, filed by three nonprofit organizations in 2016, asserts that the dime-per-page fee unlawfully exceeds the cost of running the system. The judiciary’s Administrative Office of the U.S. 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.
PACER fees should be limited to PACER costs, according to the nonprofits, represented by attorney Deepak Gupta. Excessive fees, he wrote, “inhibit public understanding of the courts and thwart equal access to justice, erecting a financial barrier that many ordinary citizens are unable to clear.”
A District Court judge issued a mixed ruling in 2018. The decision found the fees exceeded the amount allowed by Congress but affirmed that the judiciary could use the money for certain non-PACER expenses.
Before a three-judge panel of the U.S. Court of Appeals for the Federal Circuit on Monday, the government’s lawyer said there is no legal basis for individual PACER users to bring the lawsuit. Congress gave the federal judiciary broad discretion when it comes to setting PACER fees and did not establish a “correct” fee.
“We do not believe Congress put this court in the position of going back over the judiciary’s internal accounting and expenditures and compelling the judiciary to produce documents,” said Justice Department appellate attorney Alisa B. Klein.
Judge Raymond C. Clevenger III seemed skeptical of the government’s position and suggested it would allow the judiciary to charge “blatantly illegal” fees, unrelated to electronic access to the courts, and without recourse.
Could the judiciary’s governing body, known as the Judicial Conference, use the fees to “charge for curtains at the Supreme Court, the chief justice’s new chair?” he asked. “We’re redecorating all judges’ offices with gold plate.”
Klein said that any changes in fees must be presented first to Congress and noted that lawmakers already require detailed descriptions of the judiciary’s expenditures.
The majority of fees collected come from large law firms and legal-database companies the government calls “power users,” such as Westlaw and LexisNexis, which profit from the resale of aggregated PACER data.
There is no charge to download court opinions and 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.
A key legal question for the court is how to interpret a 2002 change in the law that permits the judiciary to charge “reasonable fees” for electronic access to records “only to the extent necessary.” The law allows PACER fees to “reimburse expenses incurred in providing these services.”
Judge Todd M. Hughes said the language is “hard to parse” and not a “model of clarity.” He asked the attorney for the nonprofits whether the fees could cover the underlying cost of maintaining the infrastructure of the online database.
Gupta, the attorney for the National Veterans Legal Services Program, the National Consumer Law Center and Alliance for Justice, said the fees can cover only the “marginal cost” of running the system — and not for overhead or salaries.
The third judge on the panel, Alan D. Lourie, did not ask a question.
The cost of storing data has declined since the inception of the courts’ electronic repository, while PACER fees have increased.
Introduced as a pilot project in the late 1980s, the system charged 7 cents per page in 1998, eventually increasing to 10 cents in 2012, according to court filings. From 2010 to 2016, PACER fees collected increased from $102.5 million to $146.4 million, according to court filings. During the same period, annual expenses for electronic access programs ranged from $12 million to $24 million, the records show.
(Full disclosure: It cost $5.90 for this reporter to download legal briefs to write this report.)
In contrast, the Supreme Court’s website makes filings accessible free of charge — and without registration or a credit card, as PACER requires.
The lawsuit has already had at least a temporary impact. James Duff, director of the Administrative Office of the U.S. Courts, told Congress in 2018 that the judiciary had taken steps, while the lawsuit is pending, to stop using PACER proceeds to cover certain expenses identified as inappropriate in the court ruling from U.S. District Judge Ellen S. Huvelle.
Among those backing the nonprofits’ call to limit fees is the Reporters Committee for Freedom of the Press and more than two dozen media organizations, including the New York Times, Politico and BuzzFeed. Most news organizations are not eligible for a fee waiver.
“When reporters cannot access court records because of excessive fees, the public loses,” said the brief from the news outlets and organizations. “Ready access to court documents is also consistent with the First Amendment and the long-standing tradition of transparency in our judicial system.”