Court transparency is essential, but it cannot be one-size-fits-all proposition. Here’s why.
Several recent articles in the popular press and academic literature have grappled with the issue of transparency. Professor Scott Dodson has written about the “open-courts norm” in the United States which, “accentuated by the First Amendment,” guarantees that criminal (and in most cases, civil) proceedings are open to the public. And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.” Outside the academic world, organizations such as Fix the Court are issuing their own transparency report cards to draw attention to the refusal of some courts (including the U.S. Supreme Court) to broadcast oral arguments.
These commentators are on to something important. As public organizations, courts are expected to be broadly transparent about their activities. But not all forms of court transparency are the same. Some types of transparency are necessary to the courts’ survival, while other types of transparency would actually undermine the courts’ operations. It is worth considering why.
Continue reading “What is the right level of court system transparency?”
On Thursday, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled “Federal Judiciary in the 21st Century: Ensuring the Public’s Right of Access to the Courts.” Like much of what Congress does, the hearing featured a lot of pomp and circumstance with relatively little substance. But there was an interesting revelation from U.S. District Judge Audrey Fleissig, who (along with U.S. District Judge Richard Story) testified before the Subcommittee on public access to the work of the federal courts. Specifically, Judge Fleissig asserted that “Our case management and public access systems can never be free because they require over $100 million per year just to operate.”
The $100 million figure was new to me. That is a lot of money. Now I suspect that the external part of that system — the PACER interface for public access — constitutes only a small part of that overall cost, and that most of the cost goes to internal case management software that the courts would use in any event. So perhaps Judge Fleissig is being a bit selective with her evidence.
Still, I am sympathetic to the statement that PACER can never be free. Someone has to pay for it–the direct users, the court system, or Congress.
I explored the PACER funding dilemma at length here. And I do not expect that a show hearing before a House Subcommittee would really explore these issues in depth. But I do hope (and expect) that someone — both in the court system and in Congress — is thinking about the PACER funding problem with the seriousness it deserves.
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”
Members of Congress have recently introduced several bills that would affect the staffing, administration, or jurisdiction of the federal courts. Among them:
- The Injunction Authority Clarification Act of 2018 would prevent a court from enforcing an injunction against a non-party to the suit, “unless the party is acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.” Howard Wasserman has a good analysis of the bill here.
- The Electronic Court Records Reform Act of 2018 would ensure free public access to public records on the federal courts’ PACER system. Members of the public are currently charged 10 cents per page to access documents online, unless they obtain a fee waiver from the individual court in which the case is pending. I know PACER can be a meaningful source of income for the court system, but I have long supported opening up PACER access without fee restrictions.
- The ROOM Act would add 52 new federal district judges, and would require the Supreme Court (by audio) and Courts of Appeal (by video) to stream their oral arguments live when possible, and otherwise with an archive delay. None of these proposals is new, and indeed the addition of district judges has long been requested by the courts themselves.
We’ll see if, and how, any of these nascent pieces of legislation develop.
A federal court in Miami has denied the U.S. government’s motion to dismiss a putative class action alleging that users of the federal courts’ electronic records system (PACER) were improperly charged for accessing records. The government had argued that the court lacked subject matter jurisdiction over the case, and that the plaintiffs had failed to state a claim upon which relief could be granted.
Law.com has the story here. And for those who do not want to pay PACER fees, the court’s order is here. 🙂
UPDATE/CLARIFICATION: The Florida lawsuit here is separate from the lawsuit in the first linked story. That suit, filed in the federal district court in the District of Columbia, has already certified a class. Both cases apparently will now go forward.
An organization called the Free Law Project has identified a serious vulnerability in PACER, the federal courts’ online filing system. The bug permits cross-site forgery, essentially a method of capturing another user’s account information, and utilizing that information to access documents. The original account owner would be charged, but might not know it until the account statement arrives weeks later. PACER fees, which are currently 10 cents per page with a maximum of $3.00 per document, can quickly add up.
Early stories also stated that another vulnerability would allow hackers to file documents through other people’s account, compromising the integrity of the entire justice system. PACER administrators, however, have denied that fraudulent filing was possible. The cross-site forgery issue has apparently also been addressed.
For those interested in the specific technical details of the bug, the Free Law Project has posted what it shared with the courts here.
Almost 30 years after the PACER system was implemented for the federal district courts, and more than 15 years after district court dockets were placed on the web, the U.S. Supreme Court has announced that it will adopt its own electronic filing system. The system goes into effect this November.
The Court’s announcement states that “Once the system is in place, virtually all new filings will be accessible without cost to the public and legal community.” I read that to mean that reviewing and downloading docket materials will be free, which would be an improvement on the costly PACER system. Let’s hope that is what is intended.