December 21, 2020

Free Access to Court Records

PACER Bill Passes House Despite Objection of Judiciary

The House of Representatives passed legislation by voice vote that would require free public access to federal court records through PACER.

The House of Representatives passed legislation by voice vote that would require free public access to federal court records through PACER.

In a surprise move during the lame duck session, the House of Representatives passed legislation by voice vote that would require free public access to federal court records through the Public Access to Court Electronic Records (PACER) system and mandate that the Federal Judiciary institute one uniform electronic case filing system for all federal courts.

In operation for more than 30 years, PACER is an online portal that provides access to virtually all documents filed since 1999 by a judge or parties to litigation in all U.S. courts of appeals, district courts, and bankruptcy courts. As authorized by Congress, the Administrative Office of the U.S. Courts imposes user fees to finance the system, which some argue is cumbersome and outdated. Even though all of the documents accessible through PACER are housed in the Judiciary’s case management system, each of the 94 district courts and the 13 appellate circuit courts utilize their own case filing systems, which means there is no uniform way for PACER to store, track, or retrieve court documents. H.R. 8235, the Open Courts Act of 2020, cosponsored by Representatives Hank Johnson (D-GA) and Doug Collins (R-GA), aims to change these features.

During floor debate, Representative Johnson said that the legislation “would require the Federal judiciary to allow free public access to court records over the internet and modernize the court records system so that it will cost less to maintain and be more secure.” House Majority Leader Steny Hoyer (D-MD) added that these needed changes would increase efficiency and usher in “much needed improvements to the technological capabilities of the system” and “bring increased transparency to our judicial process.”

The Federal Judiciary, however, is adamantly opposed to the bill. In a detailed letter sent to the House Judiciary Committee soon after the bill was marked up, James Duff, Secretary of the Judicial Conference of the United States, asserted that the bill “would result in massive filing fee increases for litigants, severely impairing their access to justice - the core tenet of our judicial system – while providing a commercial windfall to large commercial users (not litigants) who currently fund 87 percent of the costs of PACER.” He also argued that a single case management system is unnecessary and contrary to the longstanding organization of a decentralized third branch. Recognizing the difficulty in providing a reliable cost estimate to replace the Judiciary’s current system, Duff went on to say, “It would be prudent, before mandating a massive, untested, disruptive and costly overhaul, first to conduct a study to assess the feasibility, scope, costs, and impact of the undertaking.”

Ensuing negotiations between the Judiciary and House leaders led to significant changes in the bill prior to passage. They included extending the time for transitioning to the new electronic court records system from three years to five years, requiring all governmental agencies, not just the Department of Justice, to pay user fees for PACER, and authorizing the Judiciary to charge for-profit entities for high-volume access to PACER.

Negotiations, however, did not bridge the gap over divergent estimates of how much consolidating and revising the electronic case management system would cost. According to the Judicial Conference of the United States, the bill would have devastating budgetary and operational impacts on the Judiciary's ability to serve the public. The Judicial Conference’s estimate for a new electronic filing and public access system is $2 billion higher than the Congressional Budget Office's preliminary estimate.

Ultimately, both sides agreed to continue to work together to address concerns and achieve mutual goals of greater transparency and increased efficiency. In a December 7 letter to Majority Leader Hoyer, Duff said that the Judiciary is committed to working collaboratively with the next Congress. The Senate did not consider a companion PACER bill this Congress.

For an explanation of the current PACER fee structure and relevant ABA actions, please refer to the September 2019 Washington Letter article, accessible here.  For the most up-to-date information on PACER, follow us on Twitter @ABAGrassroots.