The PACER class action and the problem of court funding

Which is the best model for charging for access to court records: a rest stop, a bus pass, or a bake sale?

What (if anything) should the judiciary charge for public access to records, and how should that decision be made? That question is now squarely facing the federal courts and Congress.

I have blogged periodically about the 2016 class action lawsuit alleging that the federal courts overcharged users for access to its electronic public records system (known as PACER), and used the surplus to fund a variety of internal projects. Last spring, a federal district judge granted partial summary judgment to the defendants as to liability, but concluded that some of the project funding had indeed exceeded Congressional authorization. The decision is now on appeal.

Although no decision will be coming for a while, a number of recent events have returned the case to the public eye. In late January, several prominent, retired federal judges filed an amicus brief arguing that the courts should not charge any fees for public access to court records. That brief led to a story in the New Republic entitled “The Courts Are Making a Killing on Public Records.” All the while, the five-week federal government shutdown forced the courts to use up all of their “rainy day” resources and put them on the verge of operating without funding, illustrating the relative financial fragility of the courts as an organization.

I take as a given that the federal court system, as a whole, is committed to providing public access for all. But it is also a given that on an organizational level, the court system feels an obligation to protect its core activities from environmental disruption, including financial disruption. The current lawsuit provides an excellent illustration of the underlying tension between those values, and also suggests a solution. More below. Continue reading “The PACER class action and the problem of court funding”

Wyoming raises court fees to pay for technology upgrades

The technology in Wyoming’s state courts is reportedly in terrible shape, ranging from extremely outdated to nonexistent. Half the courtrooms lack adequate power, and 80 percent lack digital capacity for video and videoconferencing.  In response, the state legislature has approved an increase in court fees to fund technological improvements.  The affected fees are primarily “automation fees” associated with filing a case, and moderately increased monetary penalties for a felony conviction.

 

Attorneys file federal class action lawsuit over PACER fees

In April, attorneys for several watchdog groups filed a class action lawsuit in the U.S. District Court for the District of Columbia, arguing that the court’s Public Access to Court Electronic Records (PACER) system overcharged the public for access to court records starting in April 2010.

The lawsuit seeks “an unspecified amount of damages that ‘are found to exceed the amount authorized by law,’ as well as attorney fees.” Court documents and further details on the suit from the class action attorneys can be found here.

I was notified by email that I am a member of the plaintiff class, based on periodic PACER research I have conducted since 2010. And I have been critical of high PACER fees in the past, especially when PACER is used purely for academic research.  But this is a pretty silly lawsuit.  The class action attorneys will make a tidy sum from any settlement, and the actual affected members will likely get nothing of consequence.  I would much prefer to see the courts offer PACER as a free research service, or otherwise develop a sensible, tiered payment system.