Steve Schultze, Princeton University, Associate Director at the Center for Information Technology Policy, gave this talk as part of a series of 3-minute lightning talks on transparency hosted on Capitol Hill by the Advisory Committee on Transparency, a project of the Sunlight Foundation.

• My Bill to #OpenPACER in memory of #aaronsw -- Open for Comment and Available on Github, by Steve Schultze. Freedom to Tinker (February 1, 2013). (video and transcript with links and downloadable slides).

  ...the courts offer electronic records through the PACER web site, which charges for search results, docket lists, and documents.

  ...PACER is making a killing, with $120 million dollars in revenue for 2012. Even with a highly inefficient system architecture, they only manage to spend about $20 million dollars on PACER expenses per year. Where does the rest of the money go? They spend it on other stuff.

  This is illegal. In 1992, Congress passed a law saying that the courts could charge only to recoup costs. Ten years later, Congress strengthened that law and said that it expected the courts to move to a free system. PACER fees have increased 42% since then.

  ...Open PACER is a bill that, once and for all, mandates that the courts provide free access to our public record. The bill is open for comment at openpacer.org. It is written in GPO-compliant Legislative XML, which anyone can edit and submit for incorporation via a tool called github.

Here's a disturbing report about PACER -- the Public Access to Court Electronic Records -- published yesterday by California Watch, the CA arm of the Center for Investigative Reporting:

"PACER Federal Court Record Fees Exceed System Costs". Shane Shifflett and Jennifer Gollan, California Watch.

While the report notes that Senator Lieberman and AALL have been trying to persuade the Administrative Office of the US Courts, it should also be noted that other library associations have been in on this fight for quite a while including the Depository Library Council to the US Public Printer and ALA's Government Documents Round Table (GODORT).

Along with official calls for free access to US court documents, there's also been a grassroots effort to wrest control of these public domain documents in the form of RECAP (that's PACER backwards ;-)), a firefox plugin built by the fine folks at the Center for Information Technology Policy (CITP) at Princeton University. The plugin automatically donates purchased PACER documents into a public repository hosted by the Internet Archive. Perhaps this report along with official calls from politicians and librarians will be enough to finally get the Administrative Office of the US Courts to fix PACER and offer free access to US Court documents as it should be!

The federal government has collected millions from the online Public Access to Court Electronic Records system, or PACER – nearly five times what it cost to run the system.

Between fiscal years 2006 and 2010, the government collected an average of $77 million a year from PACER fees, according to the most recent federal figures available...

In recent years, U.S. Sen. Joe Lieberman of Connecticut and the American Association of Law Libraries, which represents 5,000 law librarians nationwide, have tried without success to persuade the Administrative Office of the U.S. Courts and members of Congress to provide free access to PACER records.

Earlier this year, the Center for Investigative Reporting, parent organization of The Bay Citizen, applied for a limited exemption from PACER fees to research potential judicial conflicts in California. Such fee waivers are typically given to academics and nonprofits “to avoid unreasonable burdens and to promote public access to information.” CIR is a nonprofit organization.

[HT to Gary Price at InfoDocket for alerting us to this report!]

From USCourts.gov:

An increase in the electronic public access (EPA) fee, from eight cents to 10 cents per page, will take effect on April 1, 2012.

Local, state and federal government agencies will be exempted from the increase for three years. Moreover, PACER users who do not accrue charges of more than $15 in a quarterly billing cycle would not be charged a fee. (The current exemption is $10 per quarter.) The expanded exemption means that 75 to 80 percent of all users will still pay no fee.

Hello From DC.

Here are some catchup items from the past couple of weeks that I was unable to get to when the stories were first posted over the past 10 days.

I've culled a selection of items from our INFOdocket.com site that we update seven days a week.

We hope you find them useful.

1. EPA Launches New Mapping Tool to Improve Public Access to Enforcement Information

2. Gov Docs: Enhancements Made to GPO’s MetaLib Federated Search Resource

3. Reference Resource: New Economic Indicator Database Search Available from Census Bureau

4. Canada: Government Documents: Library and Archives Canada Digitizes Past Issues of the Canada Gazette (1841-1997)
More than 150 years of content.

5. Privacy: Social Media: U.S. Congress Members Want FTC To Investigate Facebook Tracking
Includes link to full text of a letter sent to FTC.

6. Privacy: “WSJ.com Begins Tracking Personal User Information Without Consent”

7. Reference: New York City: “Detailed Crime Data Online” (New Database)

8. Online Civil War Era National Cemeteries Travel Itinerary Launched by the National Park Service

9. Recently Launched: PACER Training Site

10. A Collection of International Mobile Statistics from the ITU

11. Recently Released: Library of Congress Annual Report, FY 2010

12. Reference: Nuclear Energy: A New Science Tracer Bullet from the Library of Congress

13. New From CRS: Social Media and Disasters: Current Uses, Future Options, and Policy Considerations

14. NCES Releases Projections of Education Statistics to 2020

15. HHS Announces Text4Health Task Force Recommendations and Global Partnership

16. New CRS Report: Illegal Internet Streaming of Copyrighted Content: Legislation in the 112th Congress

17. U.S. Dept. of Energy Scientific Research Data Now Easier to Find, Datasets Now Being Registered with DataCite

18. Reference: USAID Releases Open Data and Maps on Famine in the Horn of Africa

From USCourts.gov:

More than 160,000 new accounts in the federal judiciary’s Public Access to Electronic Court Records (PACER) service were established in fiscal year 2011. That’s an average of more than 3,000 new accounts each week.

The PACER service center, located in San Antonio, responded to about 165,000 telephone calls and about 42,000 emails in FY 2011. More than one-third of the existing 1.3 million PACER accounts were active over the course of the fiscal year that ends September 30, 2011.

(via INFOdocket)

[Update: 9/15/11: One of my colleagues, who is preparing to teach a class on PACER, called the PACER Service Center to verify the date of the fee increase. She was told "April 2012." I then called and was told "the spring billing cycle." I suggested that information be posted on the web site, since the press release implies a much earlier date. -prj]

The Judicial Conference of the United States today

authorized an increase in the Judiciary's electronic public access fee in response to increasing costs for maintaining and enhancing the electronic public access system. The increase in the electronic public access (EPA) fee, from $.08 to $.10 per, is needed to continue to support and improve the Public Access to Court Electronic Records (PACER) system, and to develop and implement the next generation of the Judiciary's Case Management/Electronic Case Filing system.

but

The Conference was mindful of the impact such an increase could have on other public entities and on public users accessing the system to obtain information on a particular case. For this reason, local, state, and federal government agencies will be exempted from the increase for three years. Moreover, PACER users who do not accrue charges of more than $15 in a quarterly billing cycle would not be charged a fee. (The current exemption is $10 per quarter.) The expanded exemption means that 75 to 80 percent of all users will still pay no fees.

The fee increase is effective November 1, 2011.

FGI readers might also be interested in the first part of the press release - the approval of standards and procedures for sealing civil case files.

For more, see The BLT: The Blog of Legal Times, "Judicial Conference Urges Restraint in Sealing Civil Cases."

Thanks to my colleague, Mary Whisner, for the tip.

From an Announcement by the Administrative Office of the U.S. Courts:

A pilot project aimed at having public libraries enhance the public’s knowledge and use of the federal judiciary’s Public Access to Court Electronic Records (PACER) service begins July 1, 2011.

The pilot is a joint undertaking of the Administrative Office of the United States Courts, the Government Printing Office, and the American Association of Law Libraries.

(via INFOdocket.com)

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.

Fees.
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.

Steve Schultze, who is Associate Director of The Center for Information Technology Policy at Princeton, gives an excellent history and background to the fee-based PACER (Public Access to Court Electronic Records) system and various attempts to make this public information freely available.

• PACER, RECAP, and the Movement to Free American Case Law, by Steve Schultze, VoxPopuLII, LII / Legal Information Institute, Cornell University Law School (February 3, 2011).

A lot of this information will be old news if you've been following the story over the years, but I've never seen it all brought together so thoroughly in one place with so many good links before. Schultze summarizes the problem:

I was shocked that the system was charging for every single search I performed. With the type of research I was trying to do, it was inevitable that I would have to do countless searches to find what I was looking for. What’s more, the search functionality provided by PACER turned out to be nearly useless for the task at hand — there was no way to search for keywords, or within documents at all. The best I could do was pay for all the documents in particular cases that I suspected were relevant, and then try to sort through them on my own hard drive. Even this would be far from comprehensive.

The sad irony of the PACER fiasco is seeing government officials get upset when their system was being used during a free trial. (They complained because "One request was being made every three seconds"!) They shut down the free-access trial to put a stop to that! And they initiated an FBI investigation of those who were using the system so heavily! In a different world, a government agency would be proud to see its information being heavily used and valued by the public; governments would develop policies, missions, and budgets to encourage this.

But PACER generates money through its fees and, in a world in which "cost recovery" and "self sustaining programs" and "pay as you go" and restrictions on access are valued more than free public access, free use is anathema.

There is a lesson for all of us here. Budgets are bad and governments are cutting back drastically. We are sure to see rollbacks in free access; restrictions put on access or reuse or both; fees imposed; information taken offline because it is "too expensive" to keep online. Some agencies will fight these restrictions, but will be hard-put to find the resources and support to win those battles. Those agencies will need our help. Other agencies will welcome the excuse to have stricter control over what they reveal and what they hide; they will welcome the opportunity to raise money on their information "assets." We will have to fight those agencies.

In general, the economic situation in the nation means that we are going to have to fight to maintain free public access to government information. Free access to information on the web will not be a given at a time when governments are slashing budgets and politicians are campaigning to reduce government services and outsource those services to the private (fee-based) sector.

We can certainly fight politically by lobbying and supporting causes we believe in. But we also can fight using our own resources and making our own choices. One way we can do that is to get that information off of government-controlled servers and into the hands of our community libraries where our communities are in control of access. This goes against the now common idea that "everything is on the web" so we don't have to have local collections any more. On the contrary, this is the very time that we need to build digital collections to ensure long term preservation of that information and long-term free public access to it. "Self sustaining" government agencies are the enemy of free public access. We have a lot of flexibility in the digital age; "communities" no longer have to be geographically-based. Every library can have communities-of-interest and users anywhere.

Libraries that are confused about their role should see this as a clear, unambiguous opportunity. Rather than shirking the responsibility of building collections and hoping that someone else will keep information freely available, libraries can seize the opportunity to do what no one else is doing: build free digital public libraries. Providing actual collections (rather than links to content that may or may not be there tomorrow) will engender support (and funding) better than vague promises of user-assistance. Providing actual services built on top of those locally-controlled collections will attract users at a time when users are ignoring services-without-collections-libraries in favor of google.

The easiest place to start building digital collections is with public domain government information. (Is any library downloading all the documents at fcic.gov? Someone should -- before it is too late!)

More Federal Courts Move to Offer Digital Audio Recordings Online, The Third Branch, United States Courts, (November 2010).

According to Stephen Schultze, It is "worth noting that during the pilot period of this service, the fee for the audio files was $.08. This highlights the arbitrary nature of pricing for internet-delivered electronic court documents. Does the current pricing meet the statutory requirement (28 USC 1913 note) that the "Judicial Conference may, only to the extent necessary, prescribe reasonable fees... to reimburse expenses incurred in providing these services"?