It costs almost nothing for courts to store and transfer electronic data, but the federal judiciary charges 10 cents per page to use its Pacer system to access public documents. That could soon change.
The New York Times today reported about a federal case on appeal that has attracted a large array of support for breaking down the excessive Pacer costs.
The National Veterans Legal Services Program and two other nonprofit groups filed a class action in 2016 seeking to recover what they said were systemic overcharges. “Excessive Pacer fees inhibit public understanding of the courts and thwart equal access to justice, erecting a financial barrier that many ordinary citizens are unable to clear,” they wrote.
The suit accuses the judicial system of using the fees it charges as a kind of slush fund, spending the money to buy flat-screen televisions for jurors, to finance a study of the Mississippi court system and to send notices in bankruptcy proceedings.
A 2002 law allows — but does not require — the judicial system to charge for access to the records, but “only to the extent necessary” to pay for “services rendered.” The judicial system says the law allows it to charge the current fees and to spend the proceeds on a variety of programs. People seeking free access, the judicial system’s brief said, can visit the courthouse.
Last year, Judge Ellen S. Huvelle of the Federal District Court in Washington accepted the challengers’ basic theory and said the judicial system had misused some of the money.
The case is now on federal appeal. The New York Times article examines some of the supporting briefs in the case, which state fairly simply that there should be full access to public documents and the money at stake with Pacer would not break the federal judiciary’s budget.
The federal judiciary’s budget is about $7 billion, according to the article. Fees from Pacer generated about $145 million in recent years, or about 2 percent of the total.
Judge Scheindlin said Pacer fees were particularly harmful to litigants who represent themselves, to academic researchers who want to explore systemic issues like sentencing disparities and to journalists at smaller news outlets.
There is one shining exception to the federal judiciary’s hostility to free electronic access to its records. In late 2017, the Supreme Court started its own electronic filing system, making virtually all documents filed with the court available online at no cost.
“The Supreme Court’s system is terrific, and it’s a model for how courts can do this,” said Deepak Gupta, a lawyer for the groups challenging the Pacer fees. “It demonstrates that there isn’t any practical obstacle to making filings available for free.”
Pacer does make some exceptions to its 10-cents-a-page charges. Judicial opinions are free. For other documents, there is a $3 cap. People whose fees are less than $15 in a quarterly billing cycle are charged nothing.
Courts also have some discretion to waive the fees. Curiously, they are generally prohibited from exempting “members of the media.”
NC Policy Watch and many, many media outlets across the nation use and pay for Pacer documents to keep the public informed about federal court cases. Litigation here that have required Pacer access include North Carolina v. Covington, the state’s long-running racial gerrymandering case, Common Cause v. Rucho and League of Women Voters v. Rucho, the more recent partisan gerrymandering cases, and many more.
Media organizations have also filed supporting briefs in the appeal. Read the full New York Times report here.