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September 22, 2019

Access to Court Records

Will it soon be completely free for the public?

Legislation has been introduced in both the House of Representatives and the Senate this Congress that requires free public access to federal court records through the Public Access to Court Electronic Records (PACER) system and instructs the federal judiciary to institute one uniform electronic 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 in all U.S. courts of appeals, district courts and bankruptcy courts. There are approximately 2.5 million registered users, and the system contains more than one billion pages of case documents.

As permitted by Congress in 2002, the Administrative Office of the U.S. Courts (AO) imposes user fees to finance the system. Currently, access to case information through PACER costs $.10 per page. The fee is capped at $3.00 for access to case-specific documents, but the cap does not apply to transcripts of court proceedings, audio files, or non-specific case research.

PACER users who incur charges of $15 or less in a three-month period do not pay anything that quarter. This results in 66% of the active users each quarter not paying a bill. Federal courts also routinely waive fees for unrepresented defendants, pro bono attorneys, academic researchers, and not-for-profit organizations. The federal courts collect approximately $140 million annually in user fees from the PACER system. According to the AO, approximately 87% of all PACER revenue is attributable to 2% of corporate users, such as large financial institutions and major commercial enterprises that aggregate data for analysis and resale.

Representative Doug Collins (R-GA) and Senator Rob Portman (R-OH) introduced the Electronic Courts Record Reform Act of 2019 (H.R. 1164 and S. 2064) in response to concerns that the PACER system is outdated and unnecessarily expensive. Upon introduction, Rep. Collins, Ranking Member of the House Judiciary Committee, said that Americans deserve a justice system that is transparent and accessible and his bill would remove fee-for-access barriers that technology has rendered unnecessary. The bills are nearly identical except that the Senate bill authorizes the collection of filing fees (with exceptions for low-income and pro-se litigants) in amounts to be determined by the AO to cover the cost of maintaining the PACER system. It also directs the Department of Justice, which currently pays several million dollars in user fees annually, to continue to pay PACER access fees.

In 1995, before the federal PACER system debuted, the ABA adopted policy urging courts at all levels to provide access to court and docket information at no direct cost to the user. In 2011 the ABA adopted policy supporting the ongoing efforts of the AO to update and enhance its electronic case filing system. Upon introduction of H.R. 1164, the ABA wrote the bill’s sponsors, expressing support for eliminating PACER access fees. It is unclear whether legislative efforts to eliminate user fees will be successful this Congress.

In response to concerns from the public and Congress, the AO continues to engage in a multi-year effort to overhaul its electronic case filing system and to expand free access to, and correct problems with, the PACER system.  Most recently, on September 17, 2019, the Judicial Conference of the United States adopted policy doubling the quarterly fee waiver for users of the PACER system from $15 to $30. According to the AO, this will result in more than 75% of the system’s users paying no fee in a given quarter.  

In a separate action, a class action lawsuit against the federal government that is wending its way through the court system alleges that the judiciary has violated federal law by charging more for access to the PACER system from 2010 - 2016 than statutorily permissible. The Court of Appeals for the Federal Circuit is expected to rule on this case next year.

To learn more developments on PACER when they happen, follow us on Twitter @ABAGrassroots