January 25, 2021

Federal Court System Pushes Back Against Free Access To Court Documents

By Tim Cushing
Never underestimate the desperation of a government entity being asked to manage its money better. After years of mismanaging the millions of dollars the court system rakes in every year, The federal judiciary has believed for years that “free and open access” to court documents should be way less than free. The court’s PACER system puts a paywall between citizens and court documents. On top of this, it places an antiquated front end that further separates citizens from court documents, charging them per page of useless search results.

The PACER system has been a frequent target of litigation and legislation. Unfortunately, these efforts haven’t resulted in an overhaul of the system. The system continues to treat infinite goods as paper documents, charging users per page of downloaded PDFs or docket listings. It also charges per search, allowing the system’s far-from-useful search functions to generate revenue for the courts. The money from PACER was supposed to make PACER better and lower the cost of usage. Instead, it has been used to buy furniture and flat screen TVs for those fortunate enough to live within walking/driving distance of a federal courthouse. As for everyone else, the government collects up front and provides very little in the way of improvements for telecommunicators.

Legislators are once again pushing for the system to be free for most citizens. And the courts are pushing back, claiming being unable to charge per page fees would irreparably harm the recipients of these fees.

Leaders of the federal judiciary are working to block bipartisan legislation designed to create a national database of court records that would provide free access to case documents.


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.

Duff is right. It isn’t free. Taxpayers pay judges and clerks to generate documents. Taxpayers front every civil and criminal action the federal government gets involved with. Citizens also pay filing fees when they engage in private litigation. So there’s plenty of money flowing into the system. But the system seems to believe this should be a one-way stream of revenue that provides almost no benefits to those funding it.

James Duff seems to believe the “costs” of providing PDF downloads for free should be “offset.” And he’s asking taxpayers to continue offsetting the costs of documents they’ve already paid for. Somehow Duff has talked himself into believing filing fees would skyrocket, preventing people the court system is already screwing with PACER fees from utilizing this avenue of redress.

Duff said higher fees for litigants in civil and bankruptcy cases could represent an “outright barrier to seeking relief in the federal courts.”

LOL but no. Plaintiffs who can’t pay the fees can ask the court to waive their fees. It’s not impossible for poorer plaintiffs to file lawsuits. This disingenuous complaint misrepresents the fact that most plaintiffs do not ask for waivers and are willing to pay fees to litigate in federal courts. The litigants who most often seek fee waivers are federal prisoners, a taxpayer burden few government officials ever find time to complain about.

Duff also sees himself as the great equalizer, even if protecting the PACER status quo will continue to negatively affect our nation’s poorest citizens. According to Duff, free access to all will make corporate fat cats even fatter.

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.

First off, it seems like the judiciary could continue to collect fees from PACER “whales,” much in the way many free internet services do. Second, this refusal to allow free access to millions doesn’t suddenly make things “fairer” for them just because the judiciary isn’t willing to engage in corporate welfare.

Not only is the judiciary wrong about the pros and cons of free access, it’s also wrong about how much free access would actually “cost.” The judiciary says it will cost at least $2 billion over the next five years to give citizens free PACER access. Legislators and researchers say it will cost far less: ~$2 million/year. That’s an unnoticeable drop in the federal judiciary budget bucket. The judiciary wants $7.65 billion to cover its costs next year. It seems unlikely anyone would miss a 0.026% budget shortfall.

That makes this statement from Judge Reggie Walton (formerly of the FISA Court) unintentionally hilarious.

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.

Whew. Can you imagine trying to do without 0.02% of your yearly budget? You might have to use a coupon on something a few times a year.

This pushback against free access is nothing more than the government feeling it should be able to maintain a wall between what it does and the people that pay for it. The federal judiciary is showing its entire entitled ass. Citizens should have free access to court documents. They’ve already paid for them once. There’s no reason the government should continue to pretend it’s the petty librarian manning the Xerox and charging visitors $0.10/page for photocopies. All we’re asking is for the judiciary to recognize it shouldn’t place a paywall between taxpayers and infinite goods. But, according to courts, this is something we don’t deserve and aren’t entitled to ask for.

Source:: https://www.techdirt.com/articles/20201205/11443545825/federal-court-system-pushes-back-against-free-access-to-court-documents.shtml