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FDsys Court Opinions Project and PACER

GPO has announced that it is partnering with the Federal Judiciary to create a one-year pilot program providing free public access to court opinions through GPO’s Federal Digital System (FDsys).

This seems to be a laudable project, but it is important to note that this is not free access to PACER. PACER (Public Access to Court Electronic Records) is a fee-based service of the Administrative Office of the United States Courts.

Document Coverage. The GPO pilot project will only provide access to court opinions. PACER provides access to court opinions and more:

  • a Case Locator service (a national index for U.S. district, bankruptcy, and appellate courts)
  • listings of all parties and participants including judges, attorneys and trustees
  • compilations of case related information such as cause of action, nature of suit and dollar demand
  • chronologies of dates of case events entered in the case record
  • A claims registry
  • A listing of new cases each day in all courts
  • Judgments or case status

Court Coverage.The GPO project will begin by providing access to 12 courts and expand to 42 when fully implemented. PACER provides access to 216 federal appellate, district and bankruptcy courts.

The GPO project will provide free access to opinions from selected courts. PACER provides only limited free access. Although the GPO announcement says, “Free access to opinions in all Federal courts is currently available via the Judiciary’s Public Access to Court Electronic Records service (PACER),” this is not strictly true. PACER charges for each search and for each page of documents retrieved and then “waives” the first $10 of charges in each quarterly billing cycle. (Expanded PACER Fee Waiver.) The PACER fee schedule includes price caps and exceptions making it is hard for any particular user to accurately predict whether any particular information need can be met for free or if a large fee will be imposed. As noted here and here, and here, fees can mount up quickly, restrict use, and limit access.

Document Formats. Although the GPO announcement is not explicit about the formats of documents that it will make a available, FDsys typically makes documents available in PDF and plain text. PACER makes information available in PDF, HTML, and (apparently) plain text output from databases. (See FAQ ‘How do you determine what a “page” is for billing purposes?’) As noted here, formats matter and neither GPO nor PACER have committed to providing structured, tagged, machine-actionable formats.

The future.

Court decisions are a vital part of public information. One recent survey listed PACER access as third in a list of the “Most Wanted Federal Documents.” (Show Us the Data: Most Wanted Federal Documents, By Center for Democracy & Technology & OpenTheGovernment.org, March 2009.) If the GPO pilot project is successful, I would hope that it could expand to include more courts and more of the content that is now available through PACER.

It is my understanding, however, that there was a PACER presentation at the spring Depository Library Council meeting and the Council is working on a recommendation to expand a PACER fee waiver in depository libraries. Although I do not have the details of that proposal, it certainly sounds like an attempt to re-intermediate libraries in an age of disintermediation. Such attempts usually fail. (See FGI response to Ithaka draft values proposition for the FDLP and Public comments on Ithaka FDLP Modeling Project draft documents (II) for more on the disintermediation issue.)

A previous PACER free pilot project was stopped abruptly when officials got upset that their system was being used too much. (Is PACER a portent of things to come?.) A similar attempt by GPO to provide a service for free inside depository library buildings and charging a fee for that same service outside those buildings failed. (This was the early days of the FDsys predecessor, GPO Access; see Government Information in the Digital Age: The Once and Future Federal Depository Library Program.) The attempt by the Library of Congress to produce a restricted access “e-LCSH” was apparently abandoned.

The current PACER FAQ says that “information gathered from the PACER system is a matter of public record and may be reproduced without permission” but also warns that “misuse” (which “includes, but is not limited to, using an automated process to repeatedly access those portions of the PACER application that do not assess a fee”) “is strictly prohibited and may result in criminal prosecution or civil action.” It seems clear that the courts continue to resist true free access to this information. We can only hope that the current GPO/FDsys project will help turn that attitude around.

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