The Future of PACER and Its Fees

For years, lawyers and parties have complained that the online system for accessing Federal court documents, PACER (Public Access to Court Electronic Records System, is clunky and over-priced. One of the reasons that PACER is so clunky is that it is not a unified database of documents. Each of the 215 federal courts still maintain their own separate database and PACER is an overlay built to search them simultaneously. The other “clunky” aspect is that PACER lacks any way to keyword search through its database.

There have been very few improvements made to the system since it first became available on the internet in 2001. (While PACER was launched in 1988, it was initially only accessible via dedicated terminals in public law libraries, court houses, and similar locations.)

Currently, PACER fees are $0.10 per page for retrieved documents with a cap of $3.00 per document. There is no cap on the cost of retrieving a transcript. You will pay $0.10 per page for every page of a transcript—and transcripts can run hundreds or thousands of pages. If you rack up less than $15.00 in a quarter, then the courts delete your balance and start again from $0.00. While these fees might seem low if you do not have to research and retrieve many documents, consider that the courts reportedly collected $145 million in fees in 2014.

The National Veterans Legal Services Program, a non-profit advocacy agency for military veterans, filed a lawsuit challenging those fees. In their complaint, the plaintiffs call the fees excessive and characterize them as a violation of the E-Government Act of 2002, saying the fees are “far more than necessary to recover the cost of providing access to electronic records.”

In January 2017, U.S. District Court Judge Ellen Huvelle ruled that the case could proceed and certified it as a class action, allowing anyone who paid fees between April 2010 and April 2016 to be part of the class in the suit.

Separately, on February 14, 2017, the Congressional Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held hearings on PACER’s operations. As part of that hearing, select witnesses were invited to testify before the Committee. In his testimony, Thomas R. Bruce, co-founder and director of the Cornell University Law School’s Legal Information Institute, offers an excellent history of PACER that includes an overview of its features and shortcomings.

Additionally, the Internet Archive was invited to submit a statement for the record regarding PACER. (The Internet Archive has been a longtime supporter of free access to court records, already hosting millions of documents that PACER users have purchased and donated via the RECAP project. RECAP is an initiative of the non-profit Free Law Project.)

In the Internet Archive’s statement to the Committee, Brewster Kahle, digital librarian and founder of the Internet Archive, offered to host the entirety of the PACER database for free and in perpetuity, and provide better search capabilities, stating:

“By this submission, the Internet Archive would like to clearly state to the Judiciary Committee, as well as to the Administrative Office of the U.S. Courts and the Judicial Conference of the United States, that we would be delighted to archive and host—for free, forever, and without restriction on access to the public—all records contained in PACER.

This PACER collection we would maintain and improve would have far more detailed metadata and contextual information than the GPO service or the PACER Case Locator service. And, that’s just for starters, because we know that there are thousands of eager researchers, journalists, and government workers (including Congressional staff) who would immediately jump in and work with us.

By providing no-cost access to the Internet Archive to PACER and accepting our commitment to make this information available for use without restriction in perpetuity, we believe we can work with our government to make the workings of our court more usable to government attorneys, to members of the bar, and to the public at large.”

The RECAP project shows that a better way to access the PACER information is possible. The Free Law Project’s volunteers have built an interface to keyword search and browse the PACER documents in their collection. That search initiative is part of the non-profit’s free legal research website, CourtListener.

RECAP’s collection of documents (now found at CourtListener) is not comprehensive; it is reliant on PACER users donating documents they have purchased. Additionally, not everything in the CourtListener collection is keyword searchable yet, because they are “being very conservative about what is browseable/searchable because of ongoing privacy concerns related to attorneys who failed to redact personal information.” However, there are many court documents originally filed as (non-readable) PDFs that CourtListener has converted to text and made searchable.

Regardless of the keyword search feature not being available for all documents, CourtListener already allows you to search and download millions of PACER documents in its collection, in a much more user-friendly manner than the court’s official PACER site.

This latest offer from the Internet Archive, especially when combined with the existing work of the RECAP project and its CourtListener experiment, appears to be a viable solution to many of the complaints PACER users have voiced for years. This unique public/non-profit partnership would make PACER universally available—and much more user-friendly—all at no cost to the taxpayer or the public at large. The determining factor may be whether the courts will give up the $145 million in fees it has been reported PACER generates annually, much of which is used to support other court expenses, beyond the operation of PACER.

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